Fernando v Minister for Immigration

[2016] FCCA 409

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERNANDO v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 409

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – application for a Skilled (Residence) (Class VB) visa – jurisdictional error found – application allowed – declaration made – writs issues – remitted to the Tribunal.

Legislation:
Migration Regulations 1994 (Cth), Sch 2: cl.885.224, Sch 4: 4020

Craig v State of South Australia (1995) 184 CLR 163

Applicant: DAMITH PRIYANKARA WEERASINGHE ARACHCHIGE FERNANDO

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2172 of 2014

Judgment of: Judge Hartnett

Hearing date: 8 February 2016

Delivered at: Melbourne

Delivered on: 1 March 2016

REPRESENTATION

Counsel for the Applicant: Mr Fairfield

Solicitors for the Applicant: DLegal Barristers & Solicitors

Counsel for the Respondents: Mr Aleksov

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal.

2. A writ of certiorari issue, quashing the decision of the Second Respondent dated 14 October 2014.

3. A writ of mandamus issue remitting the matter to the Second Respondent, to consider and determine according to law the application made to it by the application for review of the delegate of the First Respondent's decision.

4. The First Respondent pay the costs of the Applicant fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2172 of 2014

DAMITH PRIYANKARA WEERASINGHE ARACHCHIGE FERNANDO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application for judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) dated 14 October 2014, affirming a decision of a delegate of the First Respondent made on 28 February 2013, refusing the Applicant a Skilled (Residence) (Class VB) visa.

2. The Applicant relies upon an application amended on 23 March 2015, which seeks orders that the decision of the Tribunal or Minister be quashed, and that a writ of mandamus issue directed to the Tribunal, requiring it to determine the Applicant's application according to law.  The grounds of the application are as follows:-

   “1. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal failed to comply with s.359A of the Migration Act 1958

   Particulars

   (a) The Tribunal relied upon information obtained from an online verification system without first ensuring that the applicant understood why the information was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and inviting the applicant to comment on or respond to it.

   2. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal failed to comply with s.360 of the Migration Act 1958 when it was considering the evidence as to the waiver of Public Interest Criterion (PIC) 4020. 

   Particulars

   (a) The applicant had been employed as a motor mechanic with Lankan Auto Care in Noble Park since January 2009; 

   (b) His employer, Mr Ranjim Perera, provided two letters of support to the Tribunal;

   (c) Mr Perera attended the Tribunal hearing to give evidence, he was sworn in, and asked to remain outside the hearing room while the applicant gave his evidence;

   (d) In one of the letters of support, and during the hearing, the Tribunal was told that Mr Perera suffered from heart problems, which was relevant to the value of the applicant as an employee, and whether there were compassionate or compelling circumstances to justify waiver of PIC 4020;

   (d) The Tribunal said during the hearing that it would take this claim into account in making its decision, but did not;

   (e) In failing to indicate to the applicant that it would not, the applicant was deprived of the opportunity to call Mr Perera to give evidence and present arguments relevant to the question of waiver.

   3. The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction in that the Tribunal failed to consider the applicant's claim in relation to the waiver of Public Interest Criterion PIC 4020(4)(b). 

   Particulars

   (a) The applicant was claiming that amongst other things his employer, an Australian citizen, was suffering from heart problems, that his employer considered him to have specialist mechanical skills and cultural affinity with the clientele of the business, that his employer had expanded his business on the basis of the applicant's skills, and that his business and livelihood would be in jeopardy if the applicant was unable to continue to work for him;

   (b) The Tribunal failed to deal with these claims, which were relevant individually or cumulatively to the question of waiver under PIC 4020(4)(b).

3. The Applicant relies upon the amended application together with an affidavit affirmed by Mr Damith Fernando 29 October 2014;  affidavit of Mr Denesh Weerakkodi, affirmed 25 January 2016, and to which a transcript of the proceedings of 16 September 2014 is annexed;  and the Applicant's written submissions of 25 January 2016.

4. The First Respondent in the proceedings relies upon a response filed on 17 November 2014, and written submissions of the First Respondent of 29 January 2016.  There is also before the Court the evidence as contained in the court book filed on 20 January 2015.

5. On the hearing of this matter, and sensibly, ground 1 of the amended application was not pressed.  There was no merit in that ground.

History

1. The Applicant applied for a Skilled (Residence) (Class VB) visa (‘the visa’) on 6 April 2011. The delegate refused to grant the visa on the basis that the Applicant did not satisfy the Public Interest Criterion PIC 4020 (‘PIC 4020’) for the purposes of meeting the requirements of cl.885.224 of sch.2 to the Migration Regulations 1994 (Cth) (‘the Regulations’). The delegate found that the Applicant had given or caused to be given a bogus document in the form of an International English Language Testing System (IELTS) test report dated 30 October 2010 in relation to an application for a Subclass 885 visa. The delegate found the Applicant not to have raised any compassionate or compelling circumstances for the purpose of Public Interest Criterion 4020(4). Therefore, the requirements of Public Interest Criterion 4020(1) were not waived.

Tribunal

1. The Applicant applied to the Tribunal for review of the decision of the delegate. The Tribunal concluded the decision under review should be affirmed. The Tribunal found the Applicant did not meet the requirements of paragraph 4020(1)(a) of the Regulations. It also “determined not to waive the requirements” in PIC 4020.

2. Public interest criterion 4020 is as follows:- 

   “(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.

   (2) The Minister is satisfied that during the period:

   (a) starting 3 years before the application was made; and

   (b) ending when the Minister makes a decision to grant or refuse to grant the visa;

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (2A) The applicant satisfies the Minister as to the applicant's identity.

   (2B) The Minister is satisfied that during the period:

   (a) starting 10 years before the application was made; and

   (b) ending when the Minister makes a decision to grant or refuse to grant the visa;

   neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

   (2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (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.

3. Before the Tribunal was material from Mr Ranjith Perera, proprietor of Lankan Auto Care and the employer of the Applicant.  That material was correspondence of 12 March 2013 and 5 September 2014.  That correspondence I set out relevantly below:-

   12 March 2013:-

   “We are aware that Damith has received a Notification of refusal in relation to his Australian Visa application.

   We write this letter to support him on his request. Please consider the content in this letter when making a decision. We are aware of the content of the Notification of refusal.

   I have been practicing as a motor mechanic for more than 20 years and I am a master technician.  My current business was registered in 2001.

   Damith has been with Lankan Auto Care since 04 January 2009.  We have assisted and trained him to obtain his TRA skills assessment in the past.  From 09 June 2009 he has been a paid employee as a motor mechanic and from around April 2011 continues to work as a full time paid employee with us to date.  We are keen to continue to provide him employment.

   He has demonstrated an ability to take advantage of TAFE college training and apply learning practically, and has throughout his time with us has grown in experience as a Motor Mechanic.

   We have now known him for number of years and provide this letter with our personal knowledge about him.

   It has been difficult for us to secure a good suitable employee in the past.  Damith has been performing work with due care and expertise. He has been an honest and a reliable team member and an employee.

   Substantial numbers of our clients are migrants from the subcontinent.  Due to Damiths background (he is also from the subcontinent) and personality he is able to deal directly with clients and able to retain clients for our business. Our clients value his feedback and experience and trust him to perform work up to the required standard. 

   He has undertaken work in accordance with Workplace Health and Safety Legislation.  Some of the actual and specific work he has carried out is listed below.

   …

   He is a valuable employee as he has relevant educational qualifications (relevant certificates and diplomas from Australia) now backed up by years of training and work experience.

   He has completed a very rare training in Australia which is related to Hybrid and Electrical Vehicle Training at the reputable Kangan Institute.  He is the only properly trained mechanic with certificates to undertake such work in or around our work place (sic) to the best of my knowledge.  This gives us a competitive edge.

   His high level of performance as we can gather is due to his past education and work experience which began even prior to his education and work in Australia.

   To emphasize (sic) the above please note that he has had obtained (sic) training at National Apprentice and Industrial Training Authority in Sri Lanka and obtained a National certificate which is equivalent to NVQ Level 4.

   Further he has a substantial skilled work background (evidence attached) additionally he has obtained training and a certificate from the Ceylon German Technical Training Institute. We note that most of very qualified motor mechanics in Australia with a Sri Lankan background are old boys of the Ceylon German Technical Training Institute.  I myself possess qualifications from the Ceylon German Technical Training Institute which predominantly enabled me to build my career in Australia.  I am fully aware of the value of the above mentioned training and the skills of graduates from above institutions hence I had no hesitation to provide the relevant work experiences for him and later full time work.

   If we are to lose him now it will be a big blow to our small business.  It is generally difficult to find suitable motor mechanics even under 457 visa sponsorship.  In this situation we may not be able to find a suitable replacement with his back ground and qualities as noted above

   We will undergo severe hardship in case we lose him.  We kindly request you to consider the hardships (sic) that would cause us as an Australian small business.  Personality (sic) as an Australian I and my business will suffer if I am unable to secure his employment at my work place.  This is my only business and breadwinner for the family.

   Being such a valuable employer with so many skills in the relevant field and the contributions he has made to my business. I am very keen to keep him employed in my business and hence the reason for me to provide this detailed letter

   I am not aware of the exact circumstance which led to the alleged documentation[.] I humbly request you to consider the above circumstance even if he is found guilty of the relevant provision[.] I request the MRT to decide to waive the requirements and request to grant the visa.  Based on what we have stated I believe that granting the visa should be justified based on compelling or compassionate circumstances …”[1]

   5 September 2014:-

   “In addition to my letter dated 12 March 2013 please find the following in support of the MRT hearing for Damith.

   As indicated in my letter Damith has continued to work for me and has enabled me to manage and expand the business which I thought was not possible due to my health.

   My health condition is that I have had a heart attack a few years back and undergone surgery.  I am unable to attend to many hard work (sic) and physical work that is required in this business.

   Damith attend[s] to all these matters and due to his commitment and the ability to retain and get referrals from the clients I was able to expand my business.  I have secured another motor mechanic business in the hope that Damith will continue to assist me.

   If h[e] has to leave it will not only affect by (sic) new business but more importantly my existing business and my lively hood (sic) will be in jeopardy.

   I can confirm and verify the good character of Damith as he has worked for me since January 2009 and by January 2015 it will be 6 years I have known him and he has been my employee.

   I have no hesitation to say that his character and high level of skills is an asset to my business and my customers and to Australia in general.  He has made positive contribution to the community and I am aware of his voluntary involvement with Australian Firefighting Services …”[2]

   [1] Letter from Ranjith Perera, proprietor of Lankan Auto Care, to Migration Review Tribunal or Department of Immigration and Citizenship dated 12 March 2013.

   [2] Letter from Ranjith Perera, proprietor of Lanka Auto Care, to Migration Review Tribunal dated 5 September 2014.

4. In the Applicant's response to hearing invitation sent to the Tribunal, the Applicant requested that the Tribunal take oral evidence from Mr Perera, and in response to the ‘description of this person's evidence’ request, and how it was relevant to the Applicant's case, the Applicant said, "Long‑time employer.  Under unique and exceptional circumstances."”

5. The Tribunal's Statement of Decision and Reasons dated 14 October 2014 (‘the Decision Record) dealt extensively with the question as to whether the Applicant met or did not meet the requirements of paragraph 4020(1)(a) and concluded that the Applicant did not meet such requirements. Detailed reasons were provided as to that conclusion, and findings were made on the basis of the evidence before the Tribunal.

6. The Tribunal then went on to consider whether to waive the requirements of sub-cl.4020(1), noting that although the Tribunal was not bound by policy, it had regard to the elements emphasised in PAM 3, in terms of the exercise of its discretion in determining whether to waive the requirements of sub-cl.4020(1). The Tribunal accepted amongst other things:-

   a)that the Applicant first arrived in Australia in December 2008 as the holder of a student visa;

   b)that the Applicant completed a Diploma of Automotive Technology in December 2011;

   c)that the Applicant has been working as a motor mechanic for Lankan Auto Care since January 2009;

   d)that the Applicant is married, has no children, nor any close relatives living in Australia; and

   e)that the Applicant is a volunteer firefighter and animal lover.

   The Tribunal determined however not to waive the requirements.  The reasoning of the Tribunal is set out in paragraphs 64 to 66 of the Decision Record.  The Tribunal had earlier in its Decision Record referred to the materials before it, which it noted included the letters from the Applicant's employer dated 12 March 2013 and 5 September 2014.  The Tribunal concluded:-

   “64.  The first named review applicant stated that if he is not allowed to remain in Australia this will have [a] negative effect on his boss and his business; that he is [a] qualified motor mechanic; volunteer fire-fighter; animal lover and that he is settled in Australia and as he had (sic) been living in this country since 2008.

   65.  The Tribunal accepts that the sponsoring business may face short term difficulty in replacing a valued employee such as the applicant, but the evidence does not suggest that the business will thereby become untenable, or any other consequence that the Tribunal considers would amount to a compelling circumstance affecting the interests of Australia, or a compelling or compassionate circumstance affecting the interests of an Australian citizen, permanent resident or an eligible New Zealand citizen.

   66.  The Tribunal accepts that the first named review applicant is a qualified motor mechanic; volunteer fire-fighter and animal lover.  Whilst the Tribunal has taken this evidence into account, the Tribunal is not satisfied that these circumstances reach an appropriate threshold as to amount to compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of Australian citizens, Australian permanent residents or eligible New Zealand citizens that would justify the grant of the visa.  Accordingly, the Tribunal has determined not to waive the requirements in subclause PIC 4020(1).”[3]

   [3] Migration Review Tribunal’s Decision Record dated 14 October 2014 at [64]-[66].

Consideration

1. The crux of the matter before me is firstly, whether the Tribunal properly considered the claims made by the Applicant and the evidence put before the Tribunal by the Applicant in support of those claims, and/or secondly, whether the Tribunal misled the Applicant in denying the Applicant an opportunity to call relevant evidence, by indicating to the Applicant that the Tribunal would consider the evidence of the Applicant's employer, and then failed to do so.

1. Public Interest Criterion 4020 subparagraph (4)(a) and (b) are pertinent to a consideration of the Applicant’s case as put to the Tribunal and to judicial review of the Tribunal's decision by the Court. 

2. The Tribunal set out in paragraph 15 of its Decision Record the following:-

   “The Tribunal indicated to the applicants that the Member was prepared to accept the written statement provided by Mr Perera, the first named review applicant's employer, which is relevant to the waiver of provisions and that, for this reason, the Tribunal will not take oral evidence from Mr Perera who attended the hearing.  The applicants’ representative did not object.”[4]

   [4] Migration Review Tribunal’s Decision Record dated 14 October 2014 at [15].

3. The affidavit of Mr Weerakkody, filed on behalf of the Applicant, has annexed to it a transcript of the proceedings.  Those parts the Court was taken to in particular are as follows:-

   “… exchange [between the Tribunal member and Mr Weerakkody] … (on page 3, lines 10 to 18);

   MR DRONJIC:   Are you proposing for me to take evidence from the employer?

   MR VERACOUDI:   Yes.

   MR DRONJIC:   What's the relevance of the evidence?

   MR VERACOUDI:   In relation to the connect and the conduct of the applicant as well as in relation to waiver provisions.

   …

   MR DRONJIC:   I believe that the employer provided already that written support.

   MR VERACOUDI:   They did. Yes.

   MR DRONJIC:   So I will take that into account.

   MR VERACOUDI:   Yes

   MR DRONJIC:   I don't think at this stage that it's necessary.  I’m prepared to accept that he's a valuable employee.

   MR VERACOUDI:   Okay.

   …

   MR DRONJIC:   That's all right.  Well,(sic) swear the witness just in case, but as I said, if that's the only relevance of the witness' evidence, I'm prepared to accept the statement that was provided.

   MR VERACOUDI:   Right.”

4. And thereafter, at page 6, line 11 of the Transcript:-

   “MR DRONJIC:   No? Okay.  I will just ask Mr Perera to wait outside while I'm talking to the review applicant and, as I said, I've already indicated to the applicant's adviser that I am prepared to accept the statement that you provided concerning employment of the review applicant and reference that you provided in that respect.  So if you can just wait outside and we’ll decide at the end whether to call you to give evidence.”

5. And thereafter, at page 20, line 45 of the Transcript:-

   “MR DRONJIC:   … Now, as I've indicated to you before, there is a provision in this public interest criteria which talks about waiving the public interest criteria if there are certain, you know, compelling grounds affecting the interests of Australia or compelling and compassionate grounds affecting the interests of Australian citizen, permanent residents or eligible New Zealand citizens (sic).  You have provided a letter from your employer? 

   MR FERNANDO:   Yes.

   [Mr Weerakkoday stated in effect that it was relevant to waiver of the PIC 4020 requirements.]

   MR DRONJIC:   Are there any other grounds?  You stated that you've been living in Australia since 2008.

   …

   MR FERNANDO: I think the significant effect on the (indistinct) specifically to my boss and his business because he got only that business, he running for the – feed his family.  I believe that I am good asset for Australia and this community because I'm a qualified motor mechanic.  I do some volunteer work for this community.”

6. And thereafter, at page 31, line 30 of the Transcript:-

   “I thank you very much for coming here today.  I've decided not to take the evidence from your employer because I'm prepared to accept, as I've indicated at the beginning of the hearing, that you are a valuable employee ---

   MR VERACOUDI:   In the medical condition, he had a heart attack and then surgery ---

   MR DRONJIC:   That will go into my consideration whether to waive the requirement.  Okay?  Whether the interests of Australian citizens will be affected if I, you know, decide not to waive this public interest criteria, if I find that the PIC 4020 is engaged. So that’s certainly something that I will take into account.  How will that affect Australian business and how will that affect this particular person.’

7. I note in paragraph 19 above that the Tribunal Member interjected, and Mr Weerakkody was unable to complete his further submissions. 

8. Mr Weerakkody deposes in his affidavit (paragraph 14) that because of what the Tribunal Member had said at the hearing, he believed the Tribunal Member had read and accepted everything that Mr Perera had written in his second letter, including about his heart problems; the assistance which the Applicant provided to him because of his health, including expanding to a second business; and about the impact on Mr Perera if the Applicant were no longer employed by him.  Mr Weerakkody also believed that the Tribunal Member had read and accepted everything that was in Mr Perera’s first letter.

9. During the course of the Tribunal hearing, Mr Weerakkody noted to the Tribunal member that he had a new letter from the employer, alerting the Tribunal member to the fact that there were two letters in the materials before the Tribunal.

10. On a fair reading of the Tribunal's reasons for decision, it is clear that the Tribunal did not take into account Mr Perera's medical condition, including that he had had a heart attack and undergone surgery. Nor did it take into account all of the matters contained in Mr Perera's two letters.  From the statements made by the Tribunal member, it appeared that the Tribunal took into account one written statement provided by Mr Perera, that being the earlier one. 

11. The Tribunal did not refer to the matters contained in the second letter from Mr Perera, including the evidence about his medical condition, and about the purchase of a second business.  The evidence from Mr Perera that was before the Tribunal went well beyond the matters the Applicant put before the Tribunal as to his employment.  The Applicant did not call Mr Perera as a witness because he was led to believe by the Tribunal that the Tribunal would take into account all of the matters contained in both of Mr Perera's statements.

12. I accept the submissions of Counsel for the Applicant that by reason of the representations made by the Tribunal, the Applicant was denied the opportunity to request that Mr Perera give evidence.  Mr Perera was, in fact, at the hearing and had been sworn in.  It was a simple matter for him to have been called to give evidence to expand upon and clarify the matters in his two written statements.  The contribution the Applicant made in developing both of Mr Perera's businesses, and the impact upon Mr Perera, himself an Australian citizen, if the Applicant ceased to be employed by him were matters which bore directly upon the critical question of whether there were “compassionate or compelling circumstances” which affected the interests of Mr Perera.

13. Counsel for the Applicant submitted further that the Tribunal failed to consider and take into account significant and relevant material relied upon by the Applicant.  That material raised claims that:-

    a)the Applicant's employer, Mr Perera, an Australian citizen was suffering heart problems;

    b)the Applicant provided assistance to Mr Perera because of his ill health;

    c)Mr Perera considered the Applicant to have specialist mechanical skills and cultural affinity with the clientele of the business;

    d)Mr Perera had expanded his business on the basis of the Applicant's skills, including establishing a second business;  and

    e)Mr Perera's business and livelihood would be in jeopardy if the Applicant was unable to continue to work for him.

    The paragraphs in the Decision Record which are referred to elsewhere in these reasons do not address at all the suffering by Mr Perera and his business if the Applicant was not granted the visa.  The failure to deal with this question sits at odds with the comprehensive approach of the Tribunal in the balance of its Decision Record.

14. Counsel for the First Respondent submitted that the Tribunal did, in fact, consider these matters, and that it was not necessary for the Tribunal to articulate all of the matters placed before it;  that the claims made by the Applicant had been dealt with, if not specifically, then at a higher level of generality. The Court does not accept this argument.

15. The Tribunal falls into jurisdictional error if it fails to address a relevant matter that it is required to consider.  It is clear the Tribunal did not consider, as it ought, those aspects of the Applicant's claims as set out in the employer's evidence, which went to the matters as described in paragraph 26 herein. 

16. Failure to consider this matter is a failure by the Tribunal to consider relevant material placed before it, and thus jurisdictional error as described in Craig v State of South Australia (1995) 184 CLR 163. In these circumstances, the application shall succeed and a costs order will follow the event.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 1 March 2016