Jaikhampan v Minister for Immigration
[2019] FCCA 305
•13 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JAIKHAMPAN v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 305 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a partner visa – applicant providing false or misleading information – refusal by the Tribunal to waive the public interest requirement on the visa – whether the Tribunal gave proper consideration to the circumstances of the sponsor and her child considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), s.5 Migration Regulations 1994 (Cth) |
| Cases cited: Kandel v Minister for Immigration [2015] FCA 706 |
| Applicant: | NIRUT JAIKHAMPAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2181 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Ms E Anang of Christopher Levingston and Associates |
| Solicitors for the Respondents: | Ms D Watson of Australian Government Solicitor |
ORDERS
The application filed on 12 July 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2181 of 2017
| NIRUT JAIKHAMPAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant, Mr Jaikhampan, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 June 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Jaikhampan a temporary partner visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Jaikhampan, a Thai national, arrived in Australia on 27 September 2008 as the holder of a student visa.[1]
[1] Court Book (CB) 36
Mr Jaikhampan was granted subsequent student visas, the last of which ceased on 10 June 2013.[2]
[2] CB 36
On 7 June 2013, prior to cessation of his student visa, Mr Jaikhampan applied for a partner (Temporary) (Class UK) (Subclass 820) visa[3] on the basis of his genuine and continuing de facto relationship with his Australian citizen de facto partner, Ms Rungsakulroj.
[3] CB 1-159
In the visa application, Mr Jaikhampan ticked “NO” to the questions have you ever “been convicted of a crime or offence in any country (including any conviction which is now removed from official records)” and have you ever “been charged with any offence or have proceedings against you overseas or in Australia”.[4]
[4] see CB 18 and 45
At the time of the delegate’s and the Tribunal’s decision, Mr Jaikhampan was required to satisfy the requirements of clause 820.22 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).
The delegate and subsequently the Tribunal refused the visa application on the basis that Mr Jaikhampan did not satisfy the requirements of clause 820.226 of the Regulations. At the time of the delegate and the Tribunal’s decision, clause 820.226 was in the following terms: [5]
[5] clause 820.226, Schedule 2 to the Regulations
The Applicant satisfies public interest criteria 4020 and 4021.
Public Interest Criterion (PIC) 4020 and PIC 4021 are found in Schedule 4 to the Regulations.
The Tribunal and the delegate found that Mr Jaikhampan did not satisfy the requirements of PIC 4020(1).
On 8 August 2016, Mr Jaikhampan applied to the Tribunal for review of the delegate’s decision to refuse his visa application.[6] On 26 April 2017, Mr Jaikhampan attended a hearing before the Tribunal in relation to his application for review.[7]
[6] CB 239-240
[7] CB 338 at [3]
The Tribunal received oral evidence from Mr Jaikhampan, Ms Rungsakulroj and her son, Cody.[8]
[8] CB 338 at [3]
Prior to the hearing before the Tribunal, Mr Jaikhampan and Ms Rungsakulroj submitted statutory declarations dated 24 April 2017.[9]
[9] CB 272-274
In accordance with the requirements of PIC 4020, the task before the Tribunal was twofold. First, the Tribunal had to assess whether Mr Jaikhampan satisfied the requirements PIC 4020(1) and PIC 4020(2). Secondly, if the Tribunal found that Mr Jaikhampan had failed to satisfy the requirements of either PIC 4020(1) or (2), in accordance with PIC 4020(4), the Tribunal was required to assess whether compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen existed that would justify grant of the visa irrespective of the failure to satisfy PIC 4020(1) or (2).
At [37]–[49][10] of its decision, the Tribunal assessed whether Mr Jaikhampan had failed to satisfy the requirements of PIC 4020(1) or (2). The Tribunal found that there was evidence that Mr Jaikhampan had “given, or caused to be given, to the Minister or an officer, ‘information that is false or misleading in a material particular’ in relation to the visa application”.[11]
[10] CB 345-347
[11] CB 347 at [48]
The information that the Tribunal deemed to be false or misleading in a material particular in relation to the visa application concerned Mr Jaikhampan’s responses to question 71 in the form 47SP[12] and question 57 in the form 80[13] provided in support of his visa application.
[12] CB 18
[13] CB 45
Questions 71 of the form 47SP and 57 of the form 80 were in identical terms and required disclosure by Mr Jaikhampan and any other person included in the application of any convictions for crimes or offences in any country including convictions that had been removed from official records.
Mr Jaikhampan’s Police Clearance Certificate[14] issued by the relevant Thai authorities revealed that on 28 August 2001 and 19 April 2004, Mr Jaikhampan was convicted of drug offences relating to possession.
[14] CB 165-167
The Tribunal correctly identified that Mr Jaikhampan had failed to disclose his previous convictions at questions 71 of the form 47SP and 57 of the form 80 and in so doing failed to satisfy the requirements of PIC 4020(1)(a).[15]
[15] CB 347 at [48]
Given Mr Jaikhampan’s failure to satisfy PIC 4020(1), the Tribunal proceeded to consider whether compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen existed thus permitting the exercise of the waiver provision contained in PIC 4020(4).
At [26]-[34] of its decision record,[16] the Tribunal surmises what it understands to be the circumstances submitted by Mr Jaikhampan, Ms Rungsakulroj, Cody and Mr Jaikhampan’s representative that they claimed would affect the interests of Australia or of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen thus justifying the grant of the visa.
[16] CB 342-344
With regards to the compelling circumstances that would affect the interests of Australia, the Tribunal noted that neither Ms Rungsakulroj or Mr Jaikhampan raised any compelling circumstances.[17]
[17] CB 342 at [26] and CB 342 at [29]
Mr Jaikhampan’s representative submitted that the financial difficulties that may be caused to Ms Rungsakulroj should Mr Jaikhampan be forced to depart Australia may lead Ms Rungsakulroj to rely on Centrelink benefits and the resulting burden on the Commonwealth is a compelling circumstance affecting the interests of Australia.[18]
[18] CB 344 at [34]
In relation to the issue of compelling or compassionate circumstances affecting the interests of an Australian citizen thus justifying the grant of the visa, Mr Jaikhampan submitted the following claimed circumstances orally at the hearing on 26 April 2017:
a)given his connections to Australia, Ms Rungsakulroj and Cody, Mr Jaikhampan would be emotionally distressed if he was forced to leave Australia;
b)Ms Rungsakulroj would suffer emotional and mental distress if the visa application was refused;
c)the disruption a decision to refuse would cause to their familial unit;
d)Cody’s identity as a teenager and his unwillingness to accept Ms Rungsakulroj’s advice or guidance, his estranged relationship with his biological father and his close bond with Mr Jaikhampan would result in Cody being adversely affected by a decision to refuse Mr Jaikhampan’s visa application;
e)Mr Jaikhampan’s departure from Australia would lead to a loss of a significant portion of the family’s income derived from Mr Jaikhampan’s employment as a cleaner with BIC cleaning and the assistance he provides to Ms Rungsakulroj in relation to her cleaning business. The loss of that income would adversely affect her finances and result in her being unable to maintain the loan repayments on the couple’s investment property; and
f)if the visa is refused and Mr Jaikhampan departed Australia, Ms Rungsakulroj and Cody would be solely responsible for the care of the family pet and that responsibility would be an added burden on them.[19]
[19] CB 342-343 at [27]
At the hearing on 26 April 2017, Ms Rungsakulroj submitted the following claimed circumstances orally in relation to the compelling or compassionate circumstances affecting the interests of an Australian citizen thus justifying the grant of the visa:
a)the adverse impact Mr Jaikhampan’s departure from Australia would have on their familial unit;
b)the adverse psychological impact it would have on Ms Rungsakulroj personally;
c)management of the distress and disruption Mr Jaikhampan’s departure would cause to Cody;
d)the support provided by Mr Jaikhampan to Ms Rungsakulroj in relation to the management of her physical health conditions;
e)the adverse financial implications for her and Cody from the loss of a significant portion of the family’s income derived from Mr Jaikhampan’s employment as a cleaner with BIC cleaning and the assistance he provides to Ms Rungsakulroj in relation to her cleaning business; and
f)Cody’s identity as a teenager and his reluctance to accept Ms Rungsakulroj’s advice or guidance, his estranged relationship with his biological father and his close bond with Mr Jaikhampan would result in Cody being adversely affected by a decision to refuse Mr Jaikhampan’s visa application.[20]
[20] CB 343-344 at [30]
At the hearing, Cody also submitted the following claimed circumstances orally in relation to the compelling or compassionate circumstances affecting the interests of an Australian citizen thus justifying the grant of the visa:
a)the financial assistance Mr Jaikhampan provided to the family;
b)the assistance Mr Jaikhampan provided to Ms Rungsakulroj in relation to her cleaning business helped to alleviate her stress;
c)refusal of the visa application would damage the family business;
d)refusal of the visa application would result in Ms Rungsakulroj being busier at work and she would have less time to spend with Cody; and
e)if the visa application is refused and Mr Jaikhampan departs Australia, Ms Rungsakulroj may lose income from her cleaning business as she may have to hire an employee to undertake Mr Jaikhampan’s tasks in the cleaning business.[21]
[21] CB 344 at [31]-[32]
In addition to the claimed oral circumstances outlined in the Tribunal’s decision record, Ms Rungsakulroj in her statutory declaration of 24 April 2017[22] identifies the following additional circumstances affecting the interests of an Australian citizen thus justifying the grant of the visa:
a)that given the significant financial contributions made by Mr Jaikhampan to their household and the assistance he provided to Ms Rungsakulroj in relation to her cleaning business, Mr Jaikhampan’s departure from Australia and the subsequent loss of the income and assistance provided would result in Ms Rungsakulroj having to move out of their current home and shutting down the cleaning business.
[22] CB 273-274
The claimed circumstance relating to the closure of the family business is also articulated in Mr Jaikhampan’s statutory declaration of 24 April 2017.[23]
[23] CB 272
The statutory declarations were provided to the Tribunal by Mr Jaikhampan’s agent in an email[24] dated 26 April 2017.
[24] CB 267
As noted at [55]-[57] of the Tribunal’s decision record,[25] the Tribunal found that no compelling circumstances that affect the interests of Australia existed that would justify grant of the visa irrespective of Mr Jaikhampan’s failure to satisfy PIC 4020 (1) or (2).
[25] CB 348
At [58]-[79][26] of its decision record, the Tribunal considers a majority of the claimed circumstances put forward by Mr Jaikhampan, Ms Rungsakulroj, Cody and Mr Jaikhampan’s representative and finds that the circumstances do not singularly or cumulatively establish the existence of compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen thus justifying the grant of the visa.
[26] CB 348-352
On 10 June 2014, Mr Jaikhampan’s former migration agent provided to the Minister’s Department an Australian Federal Police (AFP) certificate dated 19 June 2013 and a translated Thai Penal certificate. Those documents disclosed two convictions for possession of narcotics in Thailand one in 2001 which resulted in a nine month prison sentence, suspended, and a fine which had been pardoned by the King of Thailand and another in 2004 for which the applicant was sentenced to four years imprisonment, and one drug offence in Australia, which is recorded without conviction with a good behaviour bond for 12 months.[27]
[27] CB 164-168
On 13 June 2014, Mr Jaikhampan was invited to comment on his previous criminal convictions.[28] A response was received from Mr Jaikhampan’s new migration agent on 31 July 2014, stating that Mr Jaikhampan was unaware of his conviction in Thailand as it was entered in his absence.[29] Mr Jaikhampan further explained that his conviction was removed from official records as he received a Royal Pardon and that his conduct in Australia did not result in a conviction. It is noted that while the response purported to deal with the 2004 offence, according to the certificate only the 2001 offence was the subject of any pardon, this being the identified “first offence”.
[28] CB 169-173
[29] CB 182
On 20 February 2015, the Minister’s Department requested a more recent AFP certificate,[30] which was provided on 27 February 2015.[31]
[30] CB 184-7
[31] CB 192-7
On 11 March 2015, a further invitation to comment was sent to Mr Jaikhampan. The letter noted that Mr Jaikhampan had provided false and misleading information in his visa application as he failed to disclose that he had been convicted of crimes in Thailand in his visa application forms.[32] Mr Jaikhampan was invited to comment on the circumstances of all offences recorded on the AFP and Thai Penal certificates and any compassionate or compelling circumstances that would justify waiving the requirement in PIC 4020(1).
[32] CB 198-202
On 26 March 2015, two responses were received from Mr Jaikhampan’s migration agent in relation to the letters dated 11 March 2015 and another letter dated 23 March 2015.[33] In each response it was asserted that the certificates disclosed that no conviction was recorded and “it therefore follows there are no offences”. On 16 April 2015, a further request for information was sent to Mr Jaikhampan, but no response was received.[34]
[33] CB 206-9
[34] CB 210-13
Delegate’s decision
The delegate’s decision is found at CB 217-238. The delegate found that, as Mr Jaikhampan did not disclose his previous convictions, he had provided information that is false or misleading in a material particular. The delegate noted Mr Jaikhampan’s migration agent’s response appeared to assume that both Thai convictions were the subject of pardons whereas this was not the case. The delegate was prepared to assume that the assertion that the conviction had occurred in absentia related to the second charge but little weight was placed on the claim that Mr Jaikhampan was unaware he had been convicted and sentenced to four years imprisonment. The delegate was therefore satisfied that Mr Jaikhampan had provided false and misleading information in relation to an application for a visa for the purposes of PIC 4020(1). The delegate noted that Mr Jaikhampan had not identified any compelling or compassionate circumstances to justify waiving the requirement of PIC 4020(1) of the Regulations.
Tribunal’s decision
Mr Jaikhampan sought review of the delegate’s decision in the Tribunal.[35]
[35] CB 239-40
A submission was provided by Mr Jaikhampan’s representative prior to the hearing along with various documents.[36] In the submission, Mr Jaikhampan raised various matters in relation to the exercise of discretion.
[36] CB 268-308
The Tribunal summarised the background of the matter, including the various correspondence between Mr Jaikhampan and the Minister’s Department, the delegate’s decision and all the evidence and material before it.[37] The Tribunal also summarised the evidence of Mr Jaikhampan, Ms Rungsakulroj and Cody given at the hearing, as well as the oral submissions from Mr Jaikhampan’s migration agent.[38]
[37] CB 338-341 at [6]-[22]
[38] CB 341-344 at [23]-[34]
The Tribunal identified that the issues before it were whether Mr Jaikhampan met PIC 4020 as required by clause 820.226 of the Regulations and, if not, whether the requirement in PIC 4020(1) should be waived.[39]
[39] CB 344-345 at [35]-[36]
The Tribunal found that the applicant did not meet PIC 4020(1) of the Regulations as he had provided information that is false and misleading in a material particular.[40] In particular, the Tribunal noted that:
a)Mr Jaikhampan failed to declare his previous convictions on his incoming passenger cards and on his visa application forms, which is information that is false or misleading;[41]
b)Mr Jaikhampan’s explanations, that he relied on his mother’s advice and that his English was poor, were inadequate as he lodged his visa application after spending five years in Australia. Further, he had assistance from his (former) migration agent when he submitted his visa application forms;[42]
c)the questions in the visa application forms included the phrase “including any conviction which is now removed from official records”, which is clear and capable of being understood;[43]
d)the submission of Mr Jaikhampan’s migration agent was that Mr Jaikhampan did not disclose his conviction on his incoming passenger cards because the conviction was recorded in his absence and subsequently removed from records by the Royal Pardon;[44] and
e)it did not make any findings in relation to the incoming passenger cards because the focus of the Minister’s Department’s invitation to comment was on the answers Mr Jaikhampan provided in his visa application forms, and in any event, the Royal Pardon related only to one of the two offences he committed in Thailand. It did not accept the submission made for two reasons. First, the question was asked irrespective of whether the convictions remained on official records. Secondly, as discussed, the Royal Pardon only related to one of the offences.[45]
[40] CB 347 at [47]-[49]
[41] at [40]
[42] at [41]
[43] at [42]-[45]
[44] [44]
[45] [45]
Having found that Mr Jaikhampan did not meet PIC 4020(1), the Tribunal considered whether the requirement should be waived in accordance with PIC 4020(4).[46] The Tribunal considered whether there were any compelling circumstances that affect the interests of Australia and found that there were not any.[47] The Tribunal rejected Mr Jaikhampan’s migration agent’s submission, that Ms Rungsakulroj would rely on Centrelink and burden the Commonwealth financially if Mr Jaikhampan left the country.[48]
[46] CB 347 at [52]
[47] CB 348 at [55] and [57]
[48] at [56]
The Tribunal also considered whether there were any compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen. In particular, the Tribunal noted that:
a)the interest of Cody was a primary concern and that Mr Jaikhampan’s departure from Australia may affect Cody financially;[49]
b)Cody had no behavioural problems and was attached to Ms Rungsakulroj, who would ameliorate any distress caused by Mr Jaikhampan’s departure from Australia and financial support of her son;[50]
c)although Mr Jaikhampan had a positive role in Cody’s life and his departure may cause a degree of distress, he could maintain a meaningful involvement in his life through electronic communication and Cody and Ms Rungsakulroj could visit him in Thailand;[51]
d)Mr Jaikhampan’s separation from Ms Rungsakulroj and the financial, emotional and psychological effect of such separation on her did not constitute compassionate or compelling circumstances that would justify the grant of the visa as Mr Jaikhampan could continue to provide emotional and psychological support to Ms Rungsakulroj via electronic communication and she was not financially dependent on Mr Jaikhampan;[52] and
e)any impact on the family pet did not amount to a compassionate or compelling circumstance warranting the waiving of the PIC 4020 requirements.[53]
[49] [64] and [68]
[50] [69]
[51] [70]
[52] [72]-[75]
[53] [77]-[78]
After considering all the matters individually and cumulatively, the Tribunal was not satisfied that the requirements of PIC 4020(1) should be waived.[54] Accordingly, the Tribunal affirmed the decision under review on the basis that Mr Jaikhampan did not satisfy PIC 4020(1) and clause 820.226 of Schedule 2 to the Regulations.[55]
[54] [79]
[55] [80]-[82]
The present proceedings
These proceedings began with a show cause application filed on 12 July 2017. There are two grounds in that application:
1. The First Respondent fell into jurisdictional error in making the finding that the applicant had breached PIC4020 by reason of failing to disclose a conviction arising out of a finding 'in absentia", a subsequent royal pardon with respect to a drug matter. There is no requirement to disclose matters not within the knowledge of the Applicant and the subsequent royal pardon couched in the following terms "Therefore it is to treated as if the person has never been convicted of this offence" ( paragraph 14, page 3 of 18 of decision record)
In the alternative,
2. The Second Respondent fell into jurisdictional error in consideration of whether the requirements of PIC 4020(1) or (2) should be waived on the basis of 'compelling' circumstances by reason of its failure to give proper and genuine consideration of the personal circumstances of the sponsor and of her son 'Cody'.
Particulars
(a) Sponsors medical conditions, her financial circumstances and the degree of emotional and psychological support provided by the Applicant would likely have a significant adverse impact on the Sponsor to the extent contemplated by the waiver provisions. (Paragraph 30 of decision record.)
(b) The relationship between the Applicant for the visa and the step son Cody, an Australian citizen prima facie enlivens Convention on the Rights of the Child (CROC) obligations which would be traversed should the Applicant be required to depart Australia.
(c) The cumulative effect of the particulars identified at paragraph 30 of the decision record warranted the exercise of the relevant waiver having regard to all of the facts and circumstances of the case.
(errors in original)
Only particular (a) of Ground 2 was pressed.
The only evidence I have before me is the court book filed on 5 September 2017.
Both Mr Jaikhampan and the Minister filed pre-hearing written submissions and made oral submissions through their representatives at the trial on 12 February 2019.
Consideration
The legislative framework
At the relevant time, for the grant of the visa, the applicant must satisfy clause 820.226 of Schedule 2 to the Regulations, which requires the applicant to satisfy, among other things, PIC 4020(1).
PIC 4020 (1) in Schedule 4 to the Regulations relevantly states that there is no evidence that the applicant has given a bogus document or information that is false or misleading in a material particular in relation to the visa application. Pursuant to PIC 4020(5), information that is false or misleading in a material particular means information that is false or misleading at the time it was given and that the information is relevant to any of the criteria the Minister may consider when making a decision.
“Bogus document” is defined by s.5(1) of the Migration Act 1958 (Cth) as follows:
“bogus document”, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
Further, pursuant to PIC 4020(4), the Minister may waive the requirement in PIC 4020(1) if he is satisfied that compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen, justify the granting of the visa.
It follows that the Tribunal needed to consider both the possible existence of compelling or compassionate circumstances as described. These are not technical terms nor terms of art. They are ordinary English words and should be given their natural meaning. Bromberg J in MZYPZ v Minister for Immigration[56]at [10] considered the meaning of “compelling reasons”. In this Court, Judge Manousaridis considered the meaning of “compassionate” in Singh v Minister for Immigration & Anor[57] at [34]. The words “compassionate” and “compelling” in PIC 4020(4) are not synonyms and neither are they interchangeable. It is possible that a circumstance may be compassionate without being compelling. It is less likely but possible that the reverse might be so. Decision makers need to keep at the forefront of their minds the subtle distinction between the two expressions.
[56] [2012] FCA 478
[57] [2017] FCCA 2461
The present case
In the present matter, it is not alleged that the Tribunal misconstrued the criteria regulating its discretion. Rather, it is alleged, in effect, that the Tribunal did not actively engage intellectually with the facts in addressing the criteria for the exercise of its discretion.
That contention cannot be sustained. In that regard, I agree with the Minister’s submissions.
Ground 2 asserts that the Tribunal fell into jurisdictional error by misconstruing “compelling” circumstances in considering whether the requirement of PIC 4020(1) should be waived. In particular (a), Mr Jaikhampan asserts that the Tribunal failed to give proper and genuine consideration to the personal circumstances of Ms Rungsakulroj, including her medical condition, her financial circumstances, the degree of emotional and psychological support given by Mr Jaikhampan.
While this ground asserts that the Tribunal has not engaged in an active intellectual process in determining whether the matters advanced amount to compelling and compassionate circumstances, the reasons of the Tribunal disclose otherwise. It is clear that all matters advanced were fully considered by the Tribunal in coming to the conclusion that the circumstances did not warrant the waiver of PIC 4020(1). In truth, what Mr Jaikhampan seeks to advance here is a challenge to the factual findings made which led the Tribunal to conclude that there were no compelling or compassionate circumstances. It was open for the Tribunal to conclude that the impact on Ms Rungsakulroj was not as difficult as she was claiming and therefore, in exercising its discretion, it considered that the circumstances did not justify the waiver of PIC 4020(1). The assessment of the weight to be given to the evidence was one for the Tribunal to determine.[58]
[58] see in this regard Kandel v Minister for Immigration [2015] FCA 706 at [46]
Mr Jaikhampan submits that there was a failure to properly consider the claim that Ms Rungsakulroj and Cody may have to relocate their family home and Mr Jaikhampan’s absence may lead to the closure of the business as had been claimed in the statutory declaration.[59] Ms Rungsakulroj there claimed that Mr Jaikhampan was the “breadwinner of our family” and that she would “have to move out and even close down my business because I would have no one to help me”. The Tribunal referred to this statutory declaration.[60] Ms Rungsakulroj also gave similar evidence at the hearing[61] in so far as she claimed that Mr Jaikhampan was the breadwinner but did not recount that she would have to close the business or relocate if he was absent. It was also noted by the Tribunal that Mr Jaikhampan’s representative had submitted that Ms Rungsakulroj and Cody may need to move to Thailand.[62]
[59] at CB 273-274
[60] see [19] of the decision
[61] see [30] of the decision
[62] see [34] of the decision
The Tribunal specifically considered and rejected the claim that the absence of Mr Jaikhampan would compromise the viability of that business at [57]. At [74] the Tribunal considered and rejected the claim that Mr Jaikhampan was the “breadwinner” of the family, although it was accepted that, as a cleaner, he made some financial contribution to the family. It was accepted at [75] that there would be some impact on Ms Rungsakulroj and the business, including an impact on the ability to make payments on an investment property and the need to hire other staff, but it was not accepted that the absence of Mr Jaikhampan would result in catastrophic financial hardship as had been submitted by the representative. It concluded that the effects which may occur as found by the Tribunal would not amount to compassionate or compelling circumstances justifying the waiver of PIC 4020 requirements.
Mr Jaikhampan argues that the Tribunal incorrectly dealt with claims made relating to Ms Rungsakulroj’s concerns regarding her son. He submits that the Tribunal failed to give proper and genuine consideration to this claimed circumstance.
The Tribunal set out Mr Jaikhampan’s evidence at [27] that Cody would be affected if he had to leave Australia as he had a good relationship with him and that Cody was less receptive to advice and guidance from his mother. The Tribunal also set out evidence at [28] from Mr Jaikhampan to the effect that Cody was well-adjusted and he attended high school and has piano lessons on Saturdays. The Tribunal set out Ms Rungsakulroj’s evidence that she would have to manage her son’s distress that would result if the applicant left Australia at [30]. The Tribunal noted the submission made by Mr Jaikhampan’s representative at [65] regarding the impact on Cody. It also noted Ms Rungsakulroj’s evidence at the hearing that her child considered Mr Jaikhampan as an important figure in his life and that her son was less receptive of her parental control.[63]
[63] at [66]
However, it also noted that the evidence before it suggested that Cody was a well-adjusted child with no apparent behavioural problems[64] and that there was no evidence to demonstrate that he had physical, emotional or developmental difficulties. It concluded that it was not satisfied that it had been demonstrated that any potential distress caused by Mr Jaikhampan’s departure would exceed Cody’s ability to manage or that any such distress could not in significant part be ameliorated by Ms Rungsakulroj.
[64] at [69]
At [70] the Tribunal also noted that it was possible for Mr Jaikhampan to continue to have a role in Cody’s life even if not physically present in Australia.
Therefore, the underlying claim by Ms Rungsakulroj as to the adverse effect on her by managing her son was not accepted by the Tribunal. Again, Mr Jaikhampan seeks to cavil with the factual findings made by the Tribunal and no jurisdictional error is disclosed in the reasons.
Conclusion
Mr Jaikhampan is unable to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 March 2019
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