Gill v Minister for Immigration

[2018] FCCA 2886

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 2886

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – procedural fairness – findings of Tribunal open to it on the evidence before it – no jurisdictional error – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), schs.2, 5

Migration Act 1958 (Cth), pt.5, div.5

Cases cited:

Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24

First Applicant: JASPREET KAUR GILL

Second Applicant: BALWINDER SINGH GILL

Third Applicant: ASHRINA GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2243 of 2016

Judgment of: Judge Hartnett

Hearing date: 4 October 2018

Delivered at: Melbourne

Delivered on: 4 October 2018

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Ms Kowalewska

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2243 of 2016

JASPREET KAUR GILL

First Applicant

BALWINDER SINGH GILL

Second Applicant

ASHRINA GILL

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed on 14 August 2016, wherein the Applicants seek judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) which affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicants a Temporary Business Entry (Class UC) visa (‘the visa’). 

2. The grounds of application are as follows:-

   “1.I firmly believe that I satisfies PIC4014; and AAT did not considered my evidency properly.

   2.  I hold genuine intention to work in Australia.

   3. I would like to apply for judicial review so that all evidence can be positively looked at by the review team.”

   (Errors in Original).

3. The First Respondent seeks dismissal of the application and that a costs order follow.

4. On 12 April 2017 orders were made by the Court allowing the Applicants an opportunity to file an amended application, affidavit evidence and an outline of written submissions on or before 17 May 2017.  The Applicants filed no amended application and nor did the Applicants file any written submissions.

5. The First Respondent filed written submissions on 6 June 2017 on which the First Respondent relies.  There is also before the Court the evidence as contained in the Court Book filed by the First Respondent on 26 April 2017.

6. The Applicants were given an opportunity to make oral submissions to the Court this day.  They did not address the question of jurisdictional error in the Tribunal decision. 

7. In respect of the grounds of application, ground 3 misunderstands the nature of a judicial review application.  Ground 1, that the Tribunal did not properly consider the evidence put before it by the Applicant is not particularised and as such is not meaningful.  It is clear to the Court, however, from the Tribunal’s reasons, that it considered each and every of the matters and claims put before it by the Applicant; discussed those matters with the Applicant; engaged in an appropriate reasoning process before making findings on the basis of the material before it; and made findings which were clearly open to the Tribunal, and which were neither irrational nor illogical. 

Background

1. The Applicants are citizens of India.  The First Applicant is the principal visa applicant (‘the Applicant’).  The Applicant’s husband and daughter are included in the visa application as dependant Applicants.

2. The Applicants applied for the visa on 11 December 2013. At the time the application was lodged, Class UC contained subclass 457. The criteria for a subclass 457 visa was set out in cl.457 of Schedule 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’).

3. On 13 April 2015 the delegate refused to grant the visa on the basis that the Applicant did not meet cl.457.224 of Schedule 2 to the Regulations. The delegate found that the Applicant was affected by a “risk factor” because she left Australia on 9 June 2013 as a holder of a bridging E visa (see Public Interest Criteria (‘PIC’) 4014(1) and (4) of Schedule 4 to the Regulations). Further, the exceptions in PIC4014(5) did not apply to the Applicant.

4. On 24 April 2015 the Applicants applied for review of the delegate’s decision to the Tribunal.

5. The Applicants appeared before the Tribunal on 9 August 2016 to give evidence and present arguments.  The Tribunal received oral evidence from Farok Shaik, the Applicant’s former employer.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. 

6. The Applicants were represented in relation to the review before the Tribunal by their registered migration agent who also attended the hearing.

7. On 20 September 2016 the Tribunal affirmed the delegate’s decision not to grant the visa.

The Tribunal Decision

1. As noted by the Tribunal in paragraph 2 of the Statement of Decision and Reasons (‘the Decision Record’), the primary criteria was required to be satisfied by at least one Applicant.  Other members of the family unit, needed only to satisfy the secondary criteria. 

2. In its Decision Record, the Tribunal did not consider the dependant Applicants’ claims for the visa. Accordingly, the Tribunal did not exercise its jurisdiction in relation to the dependant Applicants, namely, the second and third named Applicants in these proceedings. The dependant Applicants, however, made no complaints against the primary criteria for the visa. Therefore, as the Applicant did not satisfy cl.457.224 of Schedule 2 to the Regulations, the dependant Applicants could not satisfy the secondary criteria for the grant of the visa prescribed by cl.457.321 of Schedule 2 to the Regulations and indeed no material was put before the Tribunal by the dependant Applicants to suggest that they could meet the secondary criterion for the grant of the visa. Thus, unavoidably there is no utility in the Court remitting the matter back to the Tribunal to consider the dependant Applicants’ claims for the visa.

3. As to its consideration of the Applicant’s visa application, the Tribunal correctly set out in paragraph 8 of the Decision Record that the issue for it to determine was whether the Applicant satisfied PIC4014 for the purposes of cl.457.224 of Schedule 2 to the Regulations.

4. PIC 4014 was, relevantly, as follows:-

   “(1) If the applicant is affected by either of the risk factors specified in subclauses (2) and (4): 

   (a)  the application is made more than 3 years after the departure of the person from Australia referred to in that subclause; or

   (b)  the Minister is satisfied that, in the particular case:

   (i)  compelling circumstances that affect the interests of Australia; or

   (ii)  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 within 3 years after the departure.

   (2)  Subject to subclause (3), a person is affected by a risk factor if the person left Australia after the expiry of a period of grace that applied to the person under section 13 of the Act as in force before 1 September 1994, being a period of grace that expired before 1 September 1994.

   (3)  Subclause (2) does not apply to a person who:

   (a)  applied for review by the Migration Review Tribunal or the Refugee Review Tribunal; and

   (b)  left Australia within 7 days of being notified of the decision on the application for review.

   (4)  Subject to subclause (5), a person is affected by a risk factor if the person left Australia as:

   (a)  an unlawful non‑citizen; or

   (b)  the holder of a Bridging C (Class (WC), Bridging D (Class WD) or Bridging E (Class WE) visa.”

   PIC 4014(5) stated that subclause (4) did not apply if:- 

   “ (a)  the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect or an entry permit held by the person expired, as the case requires; or

   (b)  a bridging visa held by the person at the time of departure was granted:

   (i)  within 28 days after a substantive visa held by the person ceased to be in effect or an entry permit held by the person expired, as the case requires; or

   (ii)  while the person held another bridging visa granted:

   (A)  while the person held a substantive visa; or

   (B)  within 28 days after a substantive visa held by the person ceased to be in effect or an entry permit held by the person expired, as the case may be.”

5. The Tribunal gave consideration, firstly, to whether the Applicant was affected by a “risk factor” as defined in PIC4014.

6. The Tribunal noted in paragraph 11 of the Decision Record, that the Applicant’s movement records indicate that she last departed Australia on 9 June 2013 as the holder of a Bridging E visa granted on 13 May 2013.  That Bridging E visa had been granted to her while she held another Bridging E visa granted on 12 April 2013.  The Applicant held several other Bridging E visas and a Bridging A visa between the time her last substantive visa ceased and the grant of the Bridging E visa on 12 April 2013.  Her last substantive visa before the Bridging E visa was granted, was a subclass 573 visa which ceased on 2 July 2011. 

7. The Tribunal went on to note that the Applicant’s last held Bridging E visa had therefore not been granted within 28 days after her substantive visa ceased to be in effect, which was on 2 July 2011. 

8. At the hearing the Tribunal discussed the above with the Applicant.  The Applicant acknowledged that she departed Australia on 9 June 2013, holding a Bridging E visa.  The Applicant indicated to the Tribunal, as she did to the Court this morning in submissions, that before leaving Australia she called the Department of Immigration and Border Protection (‘the Department’) and asked whether she could apply for another visa if she went offshore.  The Department, according to the Applicant’s evidence before the Tribunal and her submissions before the Court, informed her that she could.  After the Applicant went offshore, she was granted a visitor visa.  She confirmed to the Tribunal that she last held a substantive visa, a student visa, in 2009.  She had applied for permanent residence, a subclass 886 visa, in 2009 while she was studying. She was then granted the bridging E visa, as she had discontinued her studies and had applied for permanent residence. That visa application was unsuccessful. The Applicant then sought Ministerial Intervention in December 2012.  The then Minister intervened in July 2013, when she was granted the visitor visa. 

9. After the hearing, the Tribunal, as set out in paragraph 14 of the Decision Record, wrote to the Applicants in correspondence of 23 August 2016, (which is set out at pages 182 to 184 of the Court Book), outlining what the Tribunal considered would, subject to the Applicants’ comments or response, be the reason or a part of the reason for affirming the decisions under review.  The particulars of that information were:-

   a)departmental records indicated that the Applicant was granted a substantive visa (subclass 573 visa) on 24 August 2007, which was cancelled on 12 November 2009.  This was the last substantive visa that the Applicant held before last departing Australia, on 9 June 2013;

   b)the Applicant’s movement records indicated that she was granted a Bridging E visa on 13 May 2013.  She departed Australia as the holder of that visa.  That visa was granted to her while she was holding another Bridging E visa, which was granted to her on 12 April 2013; 

   c)neither of the Bridging E visas were granted to the Applicant within 28 days after her substantive visa, the subclass 573 visa, ceased to be in effect.  That was on 12 November 2009; and

   d)the Applicant applied for the subclass 457 visa, the subject of the Tribunal review, on 11 December 2013. 

10. The Applicant’s written response to the invitation to comment or respond did not suggest that any of the particulars set out in the preceding paragraph were incorrect.  Her written response addressed the waiver provisions. 

11. As set out in paragraph 16 of the Decision Record, based on the information before it, the Tribunal found that the Applicant last departed Australia as the holder of a bridging E visa.  The bridging E visa she held at the time of her departure was not granted within 28 days of a substantive visa ceasing.  The bridging E visa she held at the time of departure was not granted while she held another bridging visa which was granted while she held the substantive visa or within 28 days after a substantive visa held by the Applicant ceased to be in effect.  The Tribunal accordingly found that none of the exceptions in PIC4014(5) applied to the Applicant.  Given that finding, the Tribunal found the Applicant was affected by the risk factor in PIC4014(4). 

12. The Tribunal found further that the Applicant last departed Australia on 9 June 2013 and that she applied for the visa on 11 December 2013, being a period less than three years after her departure.  Accordingly, the Tribunal found that the Applicant did not meet PIC4014(1)(a).

13. The Tribunal then proceeded to consider whether the waiver provisions in PIC4014(1)(b) were met by the Applicant.  The Tribunal commenced that consideration at paragraph 20 of the Decision Record and concluded that consideration in paragraph 38.  Each of the matters put by the Applicant were considered in some detail by the Tribunal.

14. The question then before the Tribunal was whether, in the Applicants’ case, there were:-

    a)compelling circumstances that affect the interests of Australia (PIC4014(1)(b)(i)); or

    b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (PIC4014(1)(b)(ii)) justifying the grant of the visa within three years after the Applicant’s departure from Australia in June 2013.

15. The Tribunal considered all of the relevant circumstances, both individually and cumulatively, and was not satisfied that there were compelling circumstances that affect the interests of Australia. Nor was the Tribunal satisfied there were compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justified the granting of the visa to the Applicant within three years after the Applicant’s departure from Australia. Accordingly, the Tribunal found that the Applicant did not meet PIC4014(1)(b) and did not satisfy PIC4014, thereby rendering cl.457.224 of Schedule 2 to the Regulations to be not met. The Tribunal’s reasoning included the following:-

    a)the Tribunal noted that the term “compelling” was not defined in the legislation.  However, the ordinary dictionary definition states that “compelling” means to force or drive, especially to a course of action or to bring about moral necessity.  “Compassionate” has been defined as circumstances that invoke sympathy or pity;

    b)the Tribunal noted that, as set out in paragraph 29 of the Decision Record, the language adopted in the Regulations of “compelling” and “compassionate” required a degree of gravity. The Tribunal found that not to be demonstrated in the evidence before it. The Tribunal considered the assertion made on 11 February 2014, that there were compelling circumstances affecting the interests of Australia, in particular that the Applicant’s then sponsor Noureddine Osman (trading as NEO Kebab and Fish). The Tribunal noted, however, that the Applicant was no longer sponsored by Noureddine Osman. Therefore it was not satisfied those circumstances were currently relevant. It was not satisfied Noureddine Osman’s former sponsorship of the Applicant was a compelling circumstance affecting the interests of Australia as asserted by the Applicant;

    c)the Tribunal considered the submissions provided from Ayesha Khatoon, director of Indian Tandoori Wangaratta Pty Ltd, which included that Indian Tandoori Wangaratta wished to sponsor the Applicant and that there was a nomination application of which the Applicant was the subject under consideration by the Department. 

16. The Tribunal noted that, the Applicant was required to be the subject of an approved nomination that had not ceased in order to be granted the subclass 457 visa.  The Tribunal did not consider the fact that the sponsor had lodged a nomination application to be compelling.  The Tribunal accepted that the sponsor had incurred some expense by lodging the nomination application.  However, the Tribunal noted, from the acknowledgment provided to the Tribunal by the Applicant, that the nomination application was lodged very recently, in September 2016. This was four days before the Tribunal decision.

17. The Tribunal said, relevantly, in paragraph 31 of the Decision Record, it was:-

    “… satisfied the applicant and the sponsor were aware that there was an issue as to whether the applicant meets PIC 4014 and it appears that the sponsor decided to take this risk.  The Tribunal is not satisfied that Indian Tandoori Wangaratta’s nomination application is a compelling circumstance that affects the interests of Australia, or a compassionate or compelling circumstances that affects the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.”

18. The Tribunal considered whether there was any utility in waiting for the nomination application to be finalised, noting that being the subject of an approved nomination was just one of the requirements for the grant of the relevant visa.  The Tribunal was not satisfied that meeting one of the criteria for the grant of the relevant visa would be a compelling circumstance. The Tribunal formed the view that even if the nomination application was approved, that was not a compelling circumstance that affected the interests of Australia or a compassionate or compelling circumstance that affected the interests of an Australian citizen and Australian permanent resident or an eligible New Zealand citizen.

19. The Tribunal considered, in paragraphs 33 to 35 inclusive of the Decision Record, further matters relating to the Applicant’s submissions and those of her sponsor.  As to the Applicant’s proposed employment as a cook in regional Victoria, which it was asserted would be of significant benefit to Australia, and would assist in the Applicant’s sponsor’s ability to provide “prime Indian food in regional Victoria”, the Tribunal found, on the evidence before it, that it was not satisfied the sponsor’s business was so reliant on the Applicant that if the Applicant was not granted the visa, the business may be forced to close.  The Tribunal said, in paragraph 33 of the Decision Record, that such submissions of the Applicant were “mere assertions, unsubstantiated by persuasive evidence”. 

20. The Tribunal considered the Applicant’s submission that her employment would allow the director of the business to focus on the business and family and accepted that there may be a reduced demand on the sponsor if the Applicant was granted the visa.  However, on the evidence before it, the Tribunal was not satisfied the sponsor’s need to employ the Applicant was a compelling circumstance that affected the interests of Australia or a compassionate or compelling circumstance that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

1. The Tribunal accepted that the Applicant, as submitted by the Applicant, may make some contribution to a local community and a regional business as a cook at the sponsor’s restaurant. The Tribunal was not satisfied however, on the evidence before it, that Australia would enjoy significant benefit as a consequence of the Applicant’s contribution.  The Tribunal, again, was of the view that “this is a mere assertion”.  It was also not satisfied on the evidence before it that the sponsor’s business would be adversely affected to the extent that the circumstances were compelling.

2. Similarly, the Tribunal found, the evidence before it did not support the assertion that the ability to provide prime Indian food in regional Victoria would be seriously affected. 

3. The Tribunal noted, in paragraph 36 of the Decision Record, the Applicant’s submissions that her parents in India sold everything for her to settle in Australia.  Further, as set out in paragraph 37 of the Decision Record, the Applicant’s submission that she wished for her daughter, who has spent most of her time in Australia, to be educated in Australia.  The Tribunal accepted the Applicant’s parents had financially supported her attempts to secure a visa in Australia.  The Tribunal found, however, there was no evidence to suggest that either of her parents was an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

4. The Tribunal was:-

   “… not satisfied her parents’ financial assistance is a compelling circumstance that affects the interests of Australia, or a compassionate or compelling circumstance that affects the interests of an Australia citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the grant of the visa within 3 years after the applicant’s departure in June 2013.[1]

   [1] Decision Record, paragraph 36.

5. Whilst the Tribunal was mindful that the Applicant’s daughter was born in 2008 and spent most of her life in Australia, the Tribunal noted there was no evidence before it to suggest that her daughter was an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.  The Tribunal said:-

   “In these circumstances the Tribunal is not satisfied the applicant’s desire that her daughter remain, and be educated, in Australia is a compelling circumstance that affects the interests of Australia, or a compassionate or compelling circumstance that affects the interests of an Australia citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the grant of a visa within 3 years after the applicant’s departure in June 2013.”[2]

   [2] Ibid paragraph 37.

Consideration 

1. The Tribunal accorded procedural fairness to the Applicant and complied with the statutory requirements as set out in Part 5, Division 5 of the Migration Act 1958 (Cth), as discussed above. The Court finds that the Tribunal gave consideration to each of the matters and the material put before it by the Applicants and made findings supported by that material and evidence.

2. The Applicant disagrees with the conclusions reached by the Tribunal and, in essence, is requesting, in this judicial review application, that the Court conduct merits review which is not a function of the Court.  As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at paragraph 28 “mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions” is not a sufficient reason for overturning a decision in an application for judicial review.

3. The weight to be given to the evidence that was before it was a matter for the Tribunal. It is not clear from the grounds of judicial review whether the Applicant takes issue with what weight the Tribunal gave to the evidence before it, but there was no jurisdictional error in the Tribunal proceeding in the manner in which it did. 

4. The application cannot succeed.  Accordingly, it shall be dismissed and costs shall follow that dismissal.   

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 17 October 2018