Kandel v Minister for Immigration & Anor
[2014] FCCA 1479
•10 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KANDEL v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1479 |
| Catchwords: WORDS AND PHRASES – “the interests of Australia”. |
| Legislation: Migration Act 1958 (Cth), ss.65, 97, 474, 476 Migration Regulations 1994 (Cth), Schedule 2, cl.856.223, Schedule 4, PIC 4020 |
| Australian Maritime Safety Authority v Livestock Transport and Trading (2009) 174 FCR 74; [2009] FCAFC 10 Explanatory Statement, Migration Amendment Regulations 2011 (No.1) |
| Applicant: | CHIRANGIBI KANDEL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | PEG 400 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 24 June 2014 |
| Date of Last Submission: | 24 June 2014 |
| Delivered at: | Perth |
| Delivered on: | 10 July 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Kristopher |
| Solicitors for the Applicant: | Lumlan & Associates |
| Counsel for the First Respondent: | Mr A Gerrard |
| For the Second Respondent: | Submitting appearance, save as to costs |
Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS (made on 24 June 2014, amended on 9 July 2014)
The application be dismissed.
The applicant pay the first respondent’s costs in the sum of $6646 by 24 July 2014.
Formal reasons for judgment will be published at a later date.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 400 of 2013
| CHIRANGIBI KANDEL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Migration Review Tribunal.[1] The Tribunal Decision affirmed a decision of a delegate[2] of the first respondent, the Minister for Immigration & Border Protection,[3] not to grant the applicant an Employer Nomination (Residence) (Class BW) visa.[4]
[1] “Tribunal Decision” and “Tribunal” respectively. The Tribunal Decision is at Court Book (“CB”) 228-233.
[2] “Delegate’s Decision” and “Delegate” respectively. The Delegate’s Decision is at CB 165-169.
[3] “Minister”.
[4] “Employer Nomination Visa”.
An application for judicial review was filed in this Court on 24 December 2013, supported by an affidavit of the applicant sworn the same day. An amended application for judicial review was filed on 9 April 2014, supported by an affidavit sworn the same day.
At hearing on 24 June 2014 the Court made the following orders:
1.The application be dismissed.
2.The applicant pay the first respondent’s costs in the sum of $6646 by 24 July 2014.
3.Formal reasons for judgment will [be] published at a later date.
These are the Reasons for Judgment referred to in order 3 above (which has been amended by an amending order dated 9 July 2014 correcting the bracketed omission in order 3 above).
Factual and procedural background up to the time of the Tribunal Decision
The factual and procedural background to the matter is as follows:
a)the applicant is a citizen of Nepal;
b)the applicant applied for the Employer Nomination Visa on 3 December 2010;[5]
c)on 8 November 2011 the Employer Nomination Visa application was refused by the Delegate because the applicant did not satisfy Public Interest Criterion 4020[6] as he had provided a bogus document to the Department in his application;[7]
d)the bogus document was a fake birth certificate for a son who was in fact a brother, and the applicant confirmed this;[8]
e)the applicant applied to the Tribunal for review of the Delegate’s Decision on 6 December 2011;[9] and
f)a hearing was held on 24 and 29 October 2013 by the Tribunal.[10]
[5] CB 1-92.
[6] “PIC 4020” of Schedule 4 to the Migration Regulations1994 (Cth) (“Migration Regulations”).
[7] CB 167-168.
[8] CB 167 and 230 at para.10.
[9] CB 173-179.
[10] CB 204-205, 223-224 and 229 at para.4.
Tribunal Decision
On 28 November 2013 the Tribunal affirmed the Delegate’s Decision not to grant the applicant an Employer Nomination Visa.[11] In arriving at that decision the Tribunal:
[11] CB 233 at para.33.
a)identified the issue in the review as being whether the applicant met PIC 4020 of Schedule 4 to the Migration Regulations as required by cl.856.223 of Schedule 2 to the Migration Regulations, which it summarised as requiring that:
·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
·the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made to the present: PIC 4020(2)[12]
[12] CB 229 at para.6.
and noted that the requirement could be waived if there were certain compelling or compassionate reasons justifying the granting of a visa;[13]
b)noted that the term “information that is false or misleading in a material particular” is defined in PIC 4020(5) of Schedule 4 to the Migration Regulations and that the term “bogus document” is defined in s.97 of the Migration Act 1958 (Cth);[14]
c)noted that the applicant conceded that he had provided a bogus document, namely a fake birth certificate purporting to be for a son, whereas it was in fact for his brother, to the Department in relation to his Employer Nomination Visa application. The Tribunal therefore found that there was evidence that the applicant had provided a bogus document to an officer of the Department in relation to the application for an Employer Nomination Visa;[15]
d)noted that the requirements of PIC 4020 of Schedule 4 to the Migration Regulations could be waived where there are compelling circumstances that affect the interests of Australia, or where there are compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or an eligible New Zealand citizen;[16]
e)noted that the applicant had asked the Tribunal to consider the circumstances affecting the interests of Mr Dhakal, an Australian citizen, and the Director of the company which owned the Himalayan Restaurant where the applicant worked. Mr Dhakal gave evidence that he had been unable to find suitable chefs in Australia and had travelled to Nepal to recruit a new cook but was concerned that he may not be able to find a cook in Nepal with the requisite English language proficiency or knowledge of Australian hygiene standards. Mr Dhakal gave evidence that he relied on the applicant to operate one of his three restaurants and if he could not replace the applicant he may have to close one of his other restaurants with the potential that Australian employees will lose their jobs;[17]
f)noted that there was limited guidance available on the meaning of the terms ‘compassionate’ and ‘compelling’ beyond their ordinary meaning. The Tribunal referred to the Explanatory Statement when PIC 4020 was added to Schedule 4 to the Migration Regulations, as well as the relevant Departmental guidelines, and further noted that those guidelines were not binding on the Tribunal;[18]
g)found that the language used in PIC 4020 of Schedule 4 to the Migration Regulations “does impose a high degree of gravity to the circumstances that must be present in order for the discretion to become available to … [the Tribunal] to be exercised”;[19]
h)accepted Mr Dhakal’s concerns as genuine and accepted that his business may face a significant setback. The Tribunal did not, however, accept that there is no prospect that a suitable cook could be recruited in the near future. The Tribunal accepted that there may be temporary hardship for Mr Dhakal whilst he searches for a suitable replacement but that the potential closure of the business was contingent and speculative;[20]
i)concluded that the circumstances affecting Mr Dhakal did not reach the gravamen of being compelling circumstances affecting the interests of Australia, or compelling or compassionate circumstances that affect the interests of an Australian citizen, permanent resident or an eligible New Zealand citizen; and
j)declined to waive the requirements of PIC 4020(1)(a) of Schedule 4 to the Migration Regulations, and therefore found that the applicant did not satisfy PIC 4020 of Schedule 4 to the Migration Regulations for the purposes of cl.856.223 of Schedule 2 to the Migration Regulations and that the Employer Nomination Visa must therefore be refused.[21]
[13] CB 229 at para.7.
[14] “Migration Act”.
[15] CB 230 at paras.10 and 12.
[16] CB 230 at para.13.
[17] CB 230-231 at paras.14-21.
[18] CB 231-232 at paras.22-25.
[19] CB 232 at para.26.
[20] CB 232 at para.28.
[21] CB 232 at para.30.
The amended application and affidavit in support
The sole ground of review, with particulars, is set out in the amended application filed on 10 April 2014, and is as follows:
The Migration Review Tribunal’s purported decision is vitiated by a misapprehension and misapplication of the relevant law which amounts in the circumstances of this case to a jurisdictional error.
Particulars
(i)On 3 December 2010 the applicant applied for an Employer Nomination (residence) (Class BW) visa.
(ii)On 26 October 2011 the applicant informed the First Respondent in writing that the applicant provided incorrect information in regards to his child on his application form, namely the information about a son, Sandeep Kandel, who was in fact the applicant’s brother.
(iii)On 26 October 2011the applicant informed the First Respondent in writing that the applicant provided the First Respondent with Birth Certificate No 55 dated 17 May 1995 for Sandeep Kandel which was a non-genuine document.
(iv)The First Respondent’s delegate was not satisfied that there were compelling and compassionate circumstances affecting interests of an Australian citizen, Australian permanent resident so as to waive the requirements of the Public Interest Criterion 4020.
(v)On 8 November 2011 the First Respondent’s delegate refused to grant the visa.
(vi)On 6 December 2011 the applicant filed an application for review of the First Respondent’s decision with the Migration Review Tribunal.
(vii)The applicant provided documentary and witness evidence that there are compelling and compassionate circumstances that affect the interests of the Australian citizen, namely the applicant’s employer, Mr Bhairaab Dhakal. The applicant showed that he has special skills that are highly sought after in Australia.
(viii)On 28 November 2013 the Migration Review Tribunal affirmed the First Respondent’s delegate decision to refuse to grant the Employer Nomination (residence) (Class BW) visa.
(ix)The Migration Review Tribunal erred in construing that the requirements of Public Interest Criterion 4020 should not be waived.
The applicant’s affidavit sworn on 9 April 2014[22] refers to a series of factual matters relating to:
a)the applicant’s birth;
b)details of the applicant’s current employment;
c)details of the applicant’s past employment;
d)the structure of the chain of restaurants in which the applicant presently works;
e)the applicant’s duties as head chef; and
f)the difficulties it is alleged that the director of the company running the chain of restaurants would have in replacing the applicant.
[22] “Applicant’s 9 April 2014 Affidavit”.
The Applicant’s 9 April 2014 Affidavit contains no more than factual material which was, or ought to have been to the extent that it was not, before the Tribunal. Factual material going to the merits of the Tribunal’s consideration is not material that can be considered by the Court on a judicial review application in which the Court looks to whether or not the Tribunal has committed jurisdictional error, unless bias or a want of procedural fairness is alleged, which is not the case here.[23]
Submissions
[23] SZJBD v Minister for Immigration & Citizenship [2008] FCA 922 at para.24 per Siopis J; WZAMV v Minister for Immigration & Anor [2008] FMCA 1284 at para.57 per Lucev FM.
Applicant’s submissions
The applicant submits that:
a)the Minister may waive the requirements of any or all of PIC 4020(1)(a) or (b) and (2) of Schedule 4 to the Migration Regulations if satisfied that 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, justify the granting of the visa;
b)in Vyas & Anor v Minister for Immigration, Multicultural Affairs & Citizenship & Anor[24] the Court said that the compelling or compassionate circumstances can be those of the applicant’s but must be shown to have a connection or affect upon the interests of Australia or the interests of an Australian citizen or permanent resident;
[24] (2013) 281 FLR 274; [2013] FCCA 1226 (“Vyas”).
c)in Vyas the applicant had managerial responsibilities for up to 20 persons, and it was said that it would be difficult to replace him because of his detailed knowledge of the business of some years, and that this might endanger the employment by the company of persons in the Auburn area where it was situated, and that this provided “compelling circumstances” or “compassionate or compelling circumstances” within PIC 4020(4) to Schedule 4 of the Migration Regulations. The Court referred to the Tribunal’s consideration and the Tribunal’s reasons for decision:
The Tribunal has considered whether to waive the requirements of subclause 4020(1). In considering this issue the Tribunal must consider whether there are compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances that affect the interest of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.[25]
[25] Vyas FLR at 250 per Judge Raphael; FCCA at para.6 per Judge Raphael.
d)the Tribunal Decision constitutes a jurisdictional error in terms of the conventional formula provided for in Craig v The State of South Australia;[26]
[26] (1995) 184 CLR 163.
e)the Tribunal disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case;
f)the circumstances exist primarily as a result of the applicant’s role and employment as a Senior Cook at an Australian company, namely Himalayan Restaurant and Café;
g)the applicant is a highly skilled and valued employee who has assisted the owners and management to develop the business which has resulted in a significant increase in its turnover;
h)it would be possible but extremely costly to replace the applicant and to recruit another person to the position and it would have a considerably deleterious effect on the business should the applicant have to be replaced;
i)the applicant is a cook with about 20 years’ experience and has specific unique skills in Nepalese cuisine;
j)documentary evidence and witness’ statements were presented to the Tribunal in relation to these circumstances;
k)the owner of the business and employees, who are Australian citizens, might be affected by the loss of the applicant’s services in the business. The owner of the restaurant has made a few attempts to find a suitable employee to replace the applicant but was not successful;
l)it would also be appropriate to recall that the applicant has been working in Australia since 2007 and has significant local experience which is usually in demand;
m)the restaurant provides an important role in providing employment, particularly in the Perth metropolitan area; and
n)the above circumstances amount to compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of Australian citizens and the Tribunal should have waived the requirements of PIC 4020 of Schedule 4 to the Migration Regulations.
Minister’s submissions
The Minister submits that:
a)there is no jurisdictional error of a kind prescribed in Minister for Immigration & Multicultural Affairsv Yusuf & Anor,[27] and consequently the Court cannot set aside the decision of the Tribunal as one involving jurisdictional error;[28]
b)the son’s birth certificate was a bogus document as defined in s.97 of the Migration Act, and was evidence sufficient to meet the requirements of PIC 4020 of Schedule 4 to the Migration Regulations;[29]
c)the applicant concedes that he submitted a bogus document and there is no challenge to the Tribunal’s finding in this regard. Rather, the applicant challenges, without proper particularisation, the Tribunal’s approach to determining whether or not there were compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interest of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
d)there is no definition of compelling or compassionate circumstances in the Migration Act or Migration Regulations. It is a question of fact finding and weight to be given to the relevant evidence by the Tribunal;[30]
e)it is well-established that it is not for this Court to engage in a re-hearing of the merits. It is clear from the Tribunal’s reasoning that the Tribunal carefully considered the submissions made on behalf of the applicant, including those matters referred to in the Applicant’s 9 April 2014 Affidavit. There can be no concern that the Tribunal failed to accord the applicant procedural fairness or failed to carry out a review in accordance with the Migration Act: indeed, the Tribunal allowed an additional hearing date to hear evidence from the applicant’s employer; and
f)the Tribunal Decision does not involve jurisdictional error and the application should be dismissed with costs.
Consideration
[27] (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ (“Yusuf”).
[28] Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ (“Plaintiff S157”).
[29] Migration Act, s.97; Singh v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCCA 1435 at para.25 per Judge Cameron.
[30] Lakhani v Minister for Immigration and Citizenship [2013] FCCA 451 at para.29 per Judge Hartnett.
Relevant legislation and guidelines
The term “bogus document” is defined as follows in s.97 of the Migration Act:
… 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.
Clause 856.223 of Schedule 2 to the Migration Regulations provides that at the time of the Tribunal Decision the applicant must satisfy PIC 4020 of Schedule 4 to the Migration Regulations to satisfy the conditions for the grant of an Employer Nomination Visa.[31]
[31] Migration Regulations, cl.856.223(1)(a).
PIC 4020 of Schedule 4 to the Migration Regulations provides:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or 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 the application;
the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(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 interest 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.
The Explanatory Statement made upon the introduction of PIC 4020 of Schedule 4 to the Migration Regulations provided, amongst other things, that compassionate or compelling reasons include:
· family reasons (for example, unexpected serious or fatal family situations over which the applicant had no control, such as the incapacitation or death of a partner or child or another member of the family unit);
· that family members in Australia would be left without financial or emotional support; and
· a parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and would therefore be subject to an exclusion period).[32]
[32] Explanatory Statement, Migration Amendment Regulations 2011 (No. 1) at 19-20; CB 231 at para.22.
The relevant Departmental guidelines, as set out in the Tribunal Decision, provide that there may be compelling circumstances affecting Australia where:
· Australia’s trade or business opportunities would be adversely affected were the person not granted the visa (noting that gaining employer sponsorship is not considered sufficient grounds for a waiver); or
· Australia’s relationship with a foreign government would be damaged were the person not granted the visa; or
· Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.[33]
[33] CB 231 at para.23.
Jurisdictional error
The Tribunal Decision is only reviewable by this Court if it is affected by jurisdictional error.[34] An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[35]
[34] Migration Act, ss.474 and 476; Plaintiff S157 CLR at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; HCA at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
[35] Yusuf CLR at 351 per McHugh, Gummow and Hayne JJ; HCA at para.82 per McHugh, Gummow and Hayne JJ.
Concession as to no jurisdictional error
During the course of submissions by the applicant’s Counsel the Court asked Counsel to identify the jurisdictional error or errors made by the Tribunal. Counsel, frankly but properly, conceded that he was unable to do so, and also indicated that advice had been given to the applicant that no jurisdictional error was identifiable in the Tribunal Decision, but notwithstanding that advice, the applicant’s instructions were to proceed with the application. Arguably, that properly made concession might be sufficient for the Court to make an order dismissing the application, but the Court has, in any event, set out below its assessment of why no jurisdictional error was made by the Tribunal.
Assessment
In this case it is apparent that the Tribunal identified the correct issue to be determined, namely whether the applicant met PIC 4020 of Schedule 4 to the Migration Regulations as required by cl.856.223 of Schedule 2 to the Migration Regulations for the purposes of the grant of the Employer Nomination Visa, and in particular, that there be no evidence that a bogus document in relation to the application for the Employer Nomination Visa had been given to the Minister, whilst also identifying that that requirement might be waived if there were certain compelling or compassionate reasons justifying the grant of the Employer Nomination Visa.[36]
[36] CB 229 at para.6.
The Tribunal then asked whether or not there was a bogus document given to the Minister by the applicant in relation to the application for an Employer Nomination Visa. The Tribunal did so by reference to the definition of “bogus document” in s.97 of the Migration Act, and by reference to the concession by the applicant that he had indeed submitted a fake birth certificate to the Minister in relation to the Employer Nomination Visa application.
Having determined that the applicant did not meet the criteria in PIC 4020(1)(a) of Schedule 4 to the Migration Regulations, the Tribunal went on to consider the next question which was whether there were either:
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.[37]
[37] PIC 4020(4) of Schedule 4 to the Migration Regulations.
The Tribunal was not satisfied that:
a)compelling circumstances affecting the interests of Australia; or
b)circumstances which were compassionate or compelling affecting the interests of an Australian citizen, the Tribunal having satisfied itself that Mr Dhakal, the director of the company that owned the Himalayan Restaurant and Café which employed the applicant, was an Australian citizen,[38]
were established. Whether such circumstances exist is a matter of fact to be found by the Tribunal on the evidence before it.
[38] CB 231 at para.21.
The Tribunal considered the available evidence, and in particular the evidence from both the applicant and Mr Dhakal as to the effect on the Himalayan Restaurant and Café business if the applicant was not granted an Employer Nomination Visa, and came to the view that the relevant circumstances as set out above were not satisfactorily established. That was solely a matter for the Tribunal to determine given there was available evidence which was sifted and weighed by the Tribunal.[39] The Tribunal carefully weighed the evidence and submissions made before it, and whilst accepting that there would be some affect upon the business of the Himalayan Restaurant and Café which would affect the interests of Mr Dhakal as an Australian citizen, the Tribunal was not satisfied that the circumstances were either compelling or compassionate such that they affected Mr Dhakal’s interests to the extent required under PIC 4020 of Schedule 4 to the Migration Regulations and the Departmental guidelines. A similar outcome occurred in Chand & Ors v Minister for Immigration & Anor.[40] There the Court accepted that Mr Chand was a valued employee and held an important position in a green grocery business, and that his employers, who were Australian citizens, might be affected by the loss of his services in the business. The Tribunal was not satisfied that that constituted compelling circumstances affecting Australia’s interests or compassionate or compelling circumstances affecting the interest of Australian citizens.[41] In Vyas, cited by the applicant, this Court held that the applicant’s claims related only to her and not to an Australian citizen, permanent resident or eligible New Zealand citizen.[42] In the circumstances, Vyas does not assist the applicant. Further, the Tribunal was not satisfied that there were compelling circumstances affecting the interests of Australia having regard to the meaning of that phrase and the Departmental guidelines. The conclusion that compelling circumstances affecting the interests of Australia are not demonstrated by reason of the departure of a specialist cook from a Nepalese restaurant in Perth demonstrates no error, factual, legal or jurisdictional, especially when regard is had to the meaning of “the interests of Australia” as connoting a more significant, objective and public interest than that associated with employment in a restaurant.[43] In short, the Tribunal considered the issue to be determined by reference to the correct questions and had regard to all of the relevant material, both legal and factual. It arrived at factual conclusions with respect to the issue of whether or not there were established the relevant circumstances sufficient to warrant granting the applicant the Employer Nomination Visa and determined that it was not satisfied that such circumstances had been established.[44] In those circumstances, the Tribunal affirmed the Delegate’s Decision to refuse to grant the applicant an Employer Nomination Visa.
[39] Minister for Aboriginal Affairs & Anor v Peko-Wallsend Limited & Ors (1986) 162 CLR 24 at 40-41 per Mason J and 64-65 per Brennan J.
[40] [2014] FCCA 751 (“Chand”).
[41] Chand at para.4 per Judge Driver.
[42] Vyas FLR at 255-256 per Judge Raphael; FCCA at para.18 per Judge Raphael.
[43] Re Minister of Immigration, Local Government & Ethnic Affairs v Roberts (1993) 41 FCR 82 at 87 per Einfeld J, which was cited with approval in Lin v Minister for Immigration & Citizenship & Anor (2009) 176 FCR 371 at 391 per Foster J; [2009] FCA 494 at para.94 per Foster J. In Australian Maritime Safety Authority v Livestock Transport and Trading (2009) 174 FCR 74 at 83 per Dowsett, Rares and Gilmour JJ; [2009] FCAFC 10 at para.32 per Dowsett, Rares and Gilmour JJ the “interests of Australia” were said to be engaged by ships loading cargo in Australian waters being required to comply with the appropriate standard, particularly an international Convention in force in Australia.
[44] Migration Act, s.65.
When regard is had to all of the circumstances of the Tribunal’s consideration, and the manner in which the Tribunal Decision was arrived at, namely that the correct issue was identified, the correct questions were asked, and all of the relevant material was taken into account, the Tribunal Decision was a decision made within power by the Tribunal and which evinces no jurisdictional error.
Conclusions and order
On 24 June 2014 the Court:
a)concluded that the Tribunal Decision was not affected by jurisdictional error,[45] and in those circumstances made an order dismissing the application; and
[45] Migration Act, ss.474 and 476.
b)also ordered that the applicant pay the Minister’s costs in the sum of $6646 by 24 July 2014. In light of the concession made by the applicant’s Counsel and set out in paragraph 17 above, the Court asked the Minister whether indemnity costs were sought, but the Minister indicated that indemnity costs were not sought.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 10 July 2014
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