Gill v Minister for Immigration and Border Protection
[2019] FCA 226
•5 February 2019
FEDERAL COURT OF AUSTRALIA
Gill v Minister for Immigration and Border Protection [2019] FCA 226
Appeal from: Gill & Ors v Minister for Immigration & Anor [2018] FCCA 2886 File number: VID 1362 of 2018 Judge: CHARLESWORTH J Date of judgment: 5 February 2019 Legislation: Migration Act 1958 (Cth) ss 31, 65, 351, 474
Migration Regulations 1994 (Cth) cll 457.2, 457.224, 457.321, Sch 2
Cases cited: Gill & Ors v Minister for Immigration & Anor [2018] FCCA 2886
Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543
Hossain v Minister for Immigration and Border Protection [2018] HCA 344
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588
Date of hearing: 5 February 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 35 Counsel for the Appellants: The First Appellant appeared in person on behalf of the appellants Counsel for the First Respondent: Mr A Aleksov Solicitor for the First Respondent: Australian Government Solicitors Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
VID 1362 of 2018 BETWEEN: JASPREET KAUR GILL
First Appellant
BALWINDER SINGH GILL
Second Appellant
ASHRINA GILL
Third Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
CHARLESWORTH J
DATE OF ORDER:
5 FEBRUARY 2019
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs of the appeal fixed in the amount of $3,600.00.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
CHARLESWORTH J:
This is an appeal from a judgment of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal published as Gill & Ors v Minister for Immigration & Anor [2018] FCCA 2886. The Tribunal had affirmed a decision of the Minister for Immigration and Border Protection to refuse to grant the first appellant, Ms Jaspreet Kaur Gill, a Temporary Business Entry (class UC) Temporary Work (Skilled) (subclass 457) visa under the Migration Act 1958 (Cth).
On 5 February 2019 I made an order dismissing the appeal. Oral reasons were given at that time. I now publish written reasons to the same effect.
The appellants are citizens of India. The first appellant applied for the visa on 11 December 2013. The first appellant’s husband and daughter were listed on the application as accompanying secondary visa applicants. The refusal to grant the visa to the first appellant meant that her dependants did not qualify for the grant of a visa under the secondary criterion: see cl 457.2 and cl 457.321 of the Migration Regulations 1994 (Cth).
Section 31 of the Act provides that there are to be prescribed classes of visa and that the Regulations may prescribe the criteria for the visa or visas of a particular class. Section 65 of the Act provides that if the Minister is satisfied that a visa applicant fulfils the criteria for the grant of the visa, the Minister must grant the visa application. Conversely, if the Minister is not satisfied, the Minister must refuse to grant the visa. The relevant criteria for the purposes of this appeal is that specified in cl 457.224(1) of Sch 2 to the Regulations.
Clause 457.224(1) provided that the visa applicant must satisfy, among other things, a criterion known as Public Interest Criteria 4014. It relevantly provides:
(1)If the applicant is affected by the risk factor specified in subclause (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.
…
(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.
(5) Subclause (4) does not to apply to a person if:
(a)the person left Australia within 28 days after a substantive visa held by the person ceased to be in effect; 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
(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.
On 20 September 2016, the Tribunal affirmed the delegate’s decision to refuse the visa on the basis that the first appellant was affected by a risk factor within the meaning of subpara (4) of PIC 4014 and the exceptions provided for in subpara (5) were not applicable. The Tribunal said (at [16]):
Based on the information before it the Tribunal finds that the visa applicant last departed Australia as the holder of a Bridging E visa. The Bridging E visa she held at the time of 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 a substantive visa or within 28 days after a substantive visa held by the applicant ceased to be in effect. The Tribunal, accordingly, finds that none of the exceptions in PIC 4014(5) apply to the applicant.
So much was not in dispute in the Tribunal proceedings. Rather, the first appellant argued that the waiver provisions in PIC 4014(1) were met.
The Tribunal found that, given that the first appellant had departed Australia on 9 June 2013 and applied for the visa on 11 December 2013, she did not meet the waiver provision in PIC 4014(1)(a).
In relation to the waiver provision in PIC 4014(1)(b), the Tribunal set out, at [20] to [27] of its decision record, the compelling circumstances said by the first appellant to affect the interests of Australia and the compelling and compassionate circumstances said to affect the interests of either an Australian citizen, Australian permanent resident or an eligible New Zealand citizen. They may be summarised as follows.
The first appellant submitted that there was a willingness on the part of the proprietor of an Indian restaurant in Wangaratta to sponsor her. By the time of the Tribunal’s decision, that person had lodged a nomination application seeking approval to sponsor the first appellant. The proposed sponsor had experienced difficulty finding an employee with the first appellant’s skills. The proposed sponsor said that she might be forced to close her restaurant due to the resignation of two experienced chefs and her difficulties finding new qualified staff. The first appellant was, according to the proposed sponsor, an important employee because her work at the restaurant permitted the sponsor to spend more time with her family.
The first appellant submitted that the refusal to grant her a visa adversely affected the ability of the proposed sponsor’s business to provide prime Indian food in regional Victoria such that Australia would miss out on the benefit of the first appellant contributing to Australia’s business, economic, cultural and training development.
The first appellant also provided the Tribunal with a reference from a former employer. The former employer gave oral evidence to the effect that it was hard to find experienced chefs in regional Australia, that the first appellant had been a good worker and that he had spent time and money training her.
The first appellant further submitted that her parents in India had sold everything to enable her to settle in Australia and that her daughter had spent most of her life here. The first appellant said that her circumstances had previously warranted intervention by the Minister pursuant to s 351 of the Act. The Tribunal noted that the prior intervention by the Minister was based upon the first appellant’s prior employment and not her employment with her proposed new sponsor.
The Tribunal then turned to consider the meaning of the words “compelling” and “compassionate”, concluding that the language required a degree of gravity that was not demonstrated on the evidence before it: at [29]. The Tribunal set out its reasons for finding that none of the matters upon which the first appellant relied constituted compelling circumstances affecting the interests of Australia, nor compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, before concluding (at [38]):
Having considered all the relevant circumstances both individually and cumulatively, the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa within 3 years after the departure of the applicant. The Tribunal is also not satisfied 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 that justify the granting of the visa to the applicant within 3 years after the applicant’s departure. Therefore, the Tribunal finds the applicant does not meet PIC 4014(1)(b) and does not satisfy PIC 4014. Accordingly, cl 457.224 is not met.
Having found that an essential criterion for the granting of the visa was not met, the Tribunal affirmed the delegate’s decision to refuse to grant the visa in accordance with s 65(1)(b) of the Act.
In the proceedings before the primary judge, the burden was on the appellants to show that the Tribunal’s decision was affected by jurisdictional error: s 474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The grounds of review in the proceedings before the primary judge were expressed as follows:
(1)I FIRMLY BELIEVE THAT I SATISFIES PIC 4014; AND AAT DID NOT CONSIDERED MY EVIDENCE 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.
As the primary judge noted (at [4] to [6]) the appellants were provided an opportunity to file an amended application, affidavit evidence and an outline of submissions, as well as an opportunity to make oral submissions to the Court during the hearing. No such materials were filed and the oral submissions did not address the question of jurisdictional error.
The primary judge said (at [7]) that ground three of the grounds for review demonstrated a misunderstanding of the nature of judicial review proceedings. The primary judge said that ground one was not particularised and was not meaningful. Her Honour continued:
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.
By that paragraph, the primary judge may be understood to have concluded that the decision of the Tribunal was not affected by legal unreasonableness in the sense explained by the High Court in the case of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. The primary judge concluded:
40.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.
41.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.
42.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.
43.The application cannot succeed. Accordingly, it shall be dismissed and costs shall follow that dismissal.
In this Court, the appellants grounds of appeal are set out in a notice of appeal filed on 22 October 2018. There are five numbered paragraphs. The first appellant was afforded an opportunity to make oral submissions on the appeal and an opportunity to file written submissions. No written submissions were filed.
The first appellant applied for an adjournment of the appeal. That application was refused for reasons given orally at the hearing. When invited to make additional submissions in support of the substantive grounds of appeal, she declined to do so.
The first and the fifth grounds of appeal are best described as pleas to the Court to allow this appeal. The second paragraph provides a brief background to the appeal. These paragraphs do not specifically allege appealable error and need not be considered further.
The third ground of appeal is expressed as follows:
We went to MRT to review the decision of delegate’s refusal of our visa applications. Meanwhile, I got the sponsorship by Indian Tandoori Wangaratta as a cook. I also provided nomination application by Indian Tandoori Wangaratta. We only requested further time to lodge a new visa application onshore. But, The Tribunal refused to grant the application more time and affirmed the delegate’s decision. The Tribunal said that the new nomination was not directly relevant to the application currently before the Tribunal.
Having regard to the first appellant’s status as a self-represented litigant in the proceedings before the primary judge and before this Court, it is appropriate to interpret the grounds of appeal generously, albeit within reasonable bounds. This ground may be generously understood as alleging jurisdictional error in the nature of a failure to take into account a relevant consideration, namely, the nomination by Indian Tandoori Wangaratta. It may also be broadly understood to be an assertion that the Tribunal’s decision was affected by legal unreasonableness in that it did not delay the outcome of the review process so as to permit the first appellant to make an additional application for a visa whilst in Australia. It may be assumed that the first appellant intends to allege appealable error on the part of the primary judge, being a failure to identify jurisdictional errors of the kind alleged.
In relation to the alleged failure by the Tribunal to consider the nomination application by Indian Tandoori Wangaratta, the primary judge said (at [30]):
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.
It is clear, as the primary judge held, that the Tribunal did take into account the circumstances of the nomination.
Whether or not the circumstances amounted to compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen was an evaluative question. It was not shown before the primary judge (and nor has it been shown in this Court) that the Tribunal misunderstood or misapplied the criterion in PIC 4014(1)(b).
To the extent that the first appellant asserts that the Tribunal failed to properly consider evidence or failed to afford weight to any given evidence, that assertion has not been made out. Subject to some qualifications which do not apply here, the weight to be given to a particular circumstance is generally a matter for the Tribunal to decide.
As to the request by the first appellant that the Tribunal delay the outcome of its review the Tribunal said at [32] of its reasons:
The Tribunal considered whether there is any utility 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, this 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.
The complaint that the Tribunal unreasonably refused to delay the outcome of the review, was not an argument that was clearly articulated in the proceedings before the primary judge. The first appellant requires leave of this Court to introduce the issue on the appeal. The Court has the discretion to allow a new argument to be raised if it is expedient in the interests of justice to do so: Gomez v Minister for Immigration and Multicultural Affairs [2002] FCA 480; (2002) 190 ALR 543 at [18] (Hill, O’Loughlin and Tamberlin JJ); VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). In considering whether leave ought to be granted I take into account the first appellant’s status as a self-represented litigant in the proceedings before the primary judge and in the proceedings before me. Notwithstanding those circumstances, I do not consider that such an argument would enjoy sufficient prospects of success to justify granting leave to introduce it now.
The Tribunal was under no obligation to grant more time or to delay the outcome of its review. It did, however, have a discretion to grant an adjournment of its hearing. The power to grant an adjournment is conferred for the purpose of the fair and proper discharge of the Tribunal’s review function. Essentially, the review function requires that the Tribunal determine whether or not the decision of the delegate to refuse to grant the visa should be affirmed. That process necessarily required the Tribunal, in accordance with s 65 of the Act, to affirm the decision to refuse to grant the visa if any one of the essential criteria for the visa was not fulfilled.
As the Tribunal had found that PIC 4014 was not satisfied, the Tribunal was correct to find that it would not be relevant to the outcome of its review if the first appellant could obtain an approved nomination and so may be able to satisfy other essential criteria for the visa. If there be any error affecting the potential fulfilment of other visa criteria, such an error would not be material (and so could not be jurisdictional) because it could not have affected the outcome: Hossain v Minister for Immigration and Border Protection [2018] HCA 344.
The fourth ground of appeal is expressed as follows:
We then knock on the doors of Federal Circuit Court for justice but to our disappointment the Honourable Judge dismissed our case where we strongly feel that the judgment lack natural justice and jurisdictional error of not considering my genuine jobs as cook with employers in question.
Again, construing this ground of appeal generously, it seems to me to raise the same argument as that raised in ground three, together with an allegation of a want of procedural fairness in the proceedings before the primary judge. The onus was on the first appellant to demonstrate that there had been a breach of procedural fairness. No such breach is demonstrated on the materials before me.
None of the grounds of appeal is established. It follows that the appeal must be dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Charlesworth. Associate:
Dated: 5 February 2019
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