Kandel v Minister for Immigration

[2015] FCCA 465

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANDEL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 465

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Residence) (Class VB) visa – Public interest criterion – English language requirement – Application dismissed.

Legislation:  
Migration Act1958

Applicant: KRISHNA RAJ KANDEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1243 of 2014

Judgment of: Judge Street

Hearing date: 26 February 2015

Date of Last Submission: 26 February 2015

Delivered at: Sydney

Delivered on: 26 February 2015

REPRESENTATION

Counsel for the Applicant: Mr Newman

Solicitors for the Applicant: Newman & Associates

Counsel for the Respondent: Ms Hooper

Solicitors for the Respondent: DLA Piper

ORDERS

1. The amended application be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $4700. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1243 of 2014

KRISHNA RAJ KANDEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under the Court’s jurisdiction, conferred by s.476 of the Migration Act1958, for a constitutional writ in respect of the decision of the Tribunal, delivered on 14 April 2014, affirming a decision of the delegate not to grant the applicant a Skilled (Residence) (Class VB) visa.

2. In this application originally there was a ground identified on the application filed on 9 May 2014.  An amended application was filed on 12 February 2015.  A further amended application was filed on 16 February 2015:

   The applicant appeared before the second respondent for a review of the delegate’s decision to grant him the visa for which he applied stipulating that he was disentitled to apply upon public interest criteria. The tribunal erred when upholding the departmental decision as false information previously provided (triggering the imposition of 8202) did not go to a material particular.

   Particulars

   i. The applicant, in August 2010, applied for a visa subclass 121 Employer Nomination Migration) Scheme, the reference assigned by the dept was CLF2010/169986. Submitted in support of that application was a letter dated 4/2/2009 purportedly from the Jungle Nepal Resort of Nepal claiming that the applicant had worked at that establishment for 3 years as a cook between September 2004 to February 2007. That letter was found to be fraudulent despite the author admitting to having signed it.

   ii. The applicant was nominated by the proposed sponsor, an employer in NSW. In form 785, completed by the proposed sponsor, a series of questions are asked: Q21: Are there ‘exceptional circumstances’ relevant to this position which you can outline to assist in the processing of your nominee’s visa application? (refer to ENS-Exceptional circumstances on page 2 of this form for information and guidance in completing this question.) – to which the proposed sponsor answered “Yes”. Please indicate which category of ‘exceptional’ refers to your nominee by ticking one (or more) of the boxes below. The proposed sponsor ticked the box (category) ‘3 years post-qualification full-time work experience’ stating that ‘Recent Australian Qualification holder with some work experience can satisfy the requirement of the business’.

3. The solicitor for the applicant sought to develop the argument that the Tribunal should not have applied, in substance, the public interest criterion, under PIC 4020(1) albeit, it was accepted that there was a bogus document that had been provided by the applicant.  The substance of the argument was that the bogus document was not material to the relevant application the subject of review, because it related to a different and earlier application by the applicant for an Employer Nomination Scheme (Migrant) (Class RN) visa, which was unsuccessful.

4. It is of no small moment that that application, which was adversely determined against the applicant by the delegate, on 29 March 2012, made findings that the applicant had provided a false and misleading information in the form of bogus documents in relation to his claimed work experience; and that it was clear that the applicant never worked as a cook at Jungle Nepal Resort of Nepal during the period 1 September 2004 to 28 February 2007, as claimed.

5. In light of the clear position of the provision of that bogus document, it was clearly appropriate for the Tribunal to apply the public interest criterion, under PIC 4020(1), in determining whether or not the applicant met the requirements for the grant of the visa applied for. 

6. The findings that the Tribunal made that the public interest criterion were not met was clearly open on the material before the Tribunal. 

7. I note that the Tribunal found, on the evidence before it, that the applicant had been refused a visa in the three years commencing before the application was made, when he was refused a Subclass 121 visa, on 29 March 2012 and said:

   9. … The Tribunal finds the application was refused, because of a failure to supply PIC 4020(1).  Accordingly, the Tribunal finds the applicant does not meet the PIC 4020(2) criteria.   

8. The Tribunal turned to consider whether or not the requirements of a PIC 4020(1) and/or (2) may be waived.

9. In the context of assessing compelling circumstances, or compassionate circumstances, the Tribunal carefully identified the explanation sought to be advanced by the applicant in relation to the provision of the false material.  The Tribunal carefully evaluated the evidence as to whether or not there were compelling circumstances, or compassionate circumstances, that warranted a waiver of the criterion. 

10. The Tribunal held:

    20. … The Tribunal is not, therefore, satisfied that the applicant’s current employment as a nursing assistant establishes compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permit resident, or an eligible New Zealand citizen that justifiably the grant of a visa.

11. The Tribunal continued and found:

    21. …The Tribunal is not satisfied that the applicant’s completion of one nursing subject and his continued enrolment in a Bachelor of Nursing degree which he may complete in a few years time, and any future employment in this area constitute compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permit resident, or an eligible New Zealand citizen that justify the grant of a visa.

12. The Tribunal said, in paragraph 25:

    25. The Tribunal is not satisfied that there is any merit in the submissions or the applicant’s claims that waiver should be applied because Australia’s relationship with Nepal may be damaged or that it will somehow have a negative effect on international students. Nor is the Tribunal satisfied that Australia’s trade or business opportunities will be significantly affected if the visa is refused on the basis of PIC 4020. The Tribunal is not satisfied that these factors constitute 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 that justify the grant of the visa.

13. The Tribunal then concluded in paragraph 26 and 27:

    26. Having considered all of the evidence, including the facts raised both singularly and cumulatively, the Tribunal is not satisfied that there are compelling circumstances that affect the interests of Australia or compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the grant of the visa. Therefore the Tribunal is not satisfied that the requirements of PIC 4020(2) should be waived.

    27. On the basis of the above, the applicant does not satisfy PIC 4020 for the purposes of cl.885.224. 

14. The Tribunal, for the above reasons, concluded the applicant did not satisfy the PIC criteria, for the purpose of clause 885.224.  In those circumstances, the unsuccessful application for the visa was affirmed. The findings made by the Tribunal were clearly open.  There was no error by the Tribunal in its approach to the application of the requirements of PIC 4020(1), as permitted by PIC 4020(4). There is no jurisdictional error in the findings of the Tribunal in respect of whether or not there were compelling or compassionate circumstances that warranted a waiver of the criteria.

15. The Tribunal then continued to deal with a further requirement that the applicant needed to satisfy, because the applicant did not provide evidence that he meets the English language requirements for the grant of a visa, in respect of clause 885.213. After referring to that criteria and the IELTS tests for the applicant, the Tribunal found:

    29. …The Tribunal, therefore, that the applicant did not meet r.1.15C(a) and that he did not meet the definition of ‘competent English’ in r.1.15C.  Accordingly, the Tribunal also finds the applicant did not meet cl.885.213 of Schedule 2. 

    30. The Tribunal has found above that the applicant does not meet cl.885.213. The Tribunal finds, therefore, that the applicant does not meet the essential criteria for the grant of a Subclass 885 visa. As this is the only relevant subclass the application under review will be affirmed.

16. There is no substance in the ground of alleged jurisdictional error in the further amended application.  When it was identified that there was a further hurdle in relation to the adverse finding in respect of the applicant’s English language requirement for the visa, the applicant indicated that he wished to seek an adjournment to explore whether a further ground could be identified. The adverse finding which creates a further hurdle was clearly open and reflects no jurisdictional error. The Court is entirely satisfied that there is no utility in granting such an adjournment, as any such adjournment will only give rise to the incurring of further costs in respect of an application that is doomed to failure.

17. I should note, in relation to this application, that even if, contrary to the view I have expressed, there was some error in relation to the PIC, this is a case where, because of the non-compliance with the alternative criteria, it would not, in any event, be an appropriate place to grant any relief of the kind the applicant was seeking.

18. For the above reasons, the application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  4 March 2015