Kaur v MIBP
[2018] FCCA 1614
•25 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1614 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal’s (AAT) decision – Skilled Graduate Visa – compassionate circumstances – compelling circumstances – public interest criteria – whether AAT applied correct test for public interest criteria – whether AAT conflated separate tests of compassionate and compelling circumstances – error established. |
| Legislation: Migration Act 1958 (Cth), ss.65, 476 Migration Regulations 1994 (Cth), reg.2.08; schedule 2 cls.202.222, 485.224; schedule 4 cl.4020 |
| Cases cited: Babicci v Minister for Immigration [2005] FCAFC 77; (2005) 141 FCR 285 Collector of Customs v Pozzolanic (1993) 43 FCR 280 Kaur v Minister for Immigration [2017] FCAFC 184 Mala v Minister for Immigration [2005] FMCA 556 Plaintiff M64/2015 v Minister for Immigration [2015] HCA 50; 258 CLR 173 |
| First Applicant: | GURPREET KAUR |
| Second Applicant: | RAJWINDER SINGH |
| Third Applicant: | GURTAAZ SINGH GILL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1876 of 2016 |
| Judgment of: | Judge Baird |
| Hearing date: | 6 March 2018 |
| Date of Last Submission: | 6 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2018 |
REPRESENTATION
| Solicitors for the Applicants: | Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr P Knowles |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue, quashing the decision of the second respondent dated 23 June 2016.
A writ of mandamus issue directed to the second respondent requiring it to consider and determine the applicants’ application for review of the decision of a delegate of the first respondent dated 16 September 2011 according to law.
The first respondent pay the applicants’ costs in the amount of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1876 of 2016
| GURPREET KAUR |
First Applicant
| RAJWINDER SINGH |
Second Applicant
| GURTAAZ SINGH GILL |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal dated 23 June 2016. The Tribunal dismissed an application for review by it of a decision of a Delegate of the First Respondent made on 16 September 2011 to refuse the Applicants Skilled (Provisional) (class VC) subclass 485 (Skilled Graduate) Visas under s.65 of the Act.
Background
The Applicants are citizens of India. On 14 December 2009, the First Applicant applied to the Department of Immigration and Citizenship for the Visas. The First Applicant sought to satisfy the primary criteria for the grant of the Visa. She nominated the skilled occupation of hairdresser. The Second Applicant is the First Applicant’s spouse, and was included in the application for the Visa at the time it was lodged. The Third Applicant is a child of the marriage of the First and Second Applicants, born after the application was lodged, and was automatically added to the Visa application by operation of regulation 2.08 of the Migration Regulations 1994 (Cth). The Department was notified of this change of circumstances on or about 18 January 2011.
On 16 September 2011, the Delegate refused the Visa application. The Delegate found that the First Applicant did not satisfy clause 485.224 of Schedule 2 of the Regulations because she did not satisfy public interest criterion 4020 (PIC 4020) of Schedule 4 of the Regulations.
On 5 October 2011, the Applicants lodged an application for review of the Delegate’s decision by the then Migration Review Tribunal. On 10 December 2012, the Review Tribunal affirmed the Delegate’s decision.
On 3 January 2013, the Applicants sought judicial review of the Review Tribunal’s decision. On 23 September 2014, the Federal Circuit Court of Australia dismissed that application. On 22 January 2015, by consent, the Federal Court of Australia set aside the orders of the Court, quashed the decision of the Review Tribunal, and remitted the Visa application to the Tribunal for determination according to law.
On 15 June 2016, a newly constituted Tribunal held a hearing with the Applicants. On 23 June 2016, the Tribunal handed down its decision, affirming the decision of the Delegate made 16 September 2011 refusing to grant a Visa to the Applicants.
On 18 July 2016, the Applicants filed the present application in this Court.
Proceeding before the Tribunal
The issue before the Tribunal was whether the Applicants met PIC 4020 as required by cl.485.224 of Schedule 2 of the Regulations for the grant of the Visas, or if not, whether in the exercise of the discretion under cl.4020(4) the Tribunal would waive the requirements of PIC 4020(1) and (2). The relevant provisions of each of cl.485.224 and PIC 4020 are as follows:
Schedule 2
485.224
(1) The skills of the applicant for the applicant’s nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.
(1A)If the assessment is expressed to be valid for a particular period, that period has not ended.
(2)If the applicant’s skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.
Schedule 4
4020
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5‑reviewable decision, a relevant assessing authority or a 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 to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
…
(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 interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
The Tribunal found that the First Applicant had given, or caused to be given, to a relevant assessment authority and to the Tribunal information that is false or misleading in a material particular in relation to her application for a Visa, and that she had provided to the Department (and to the Tribunal during the review) a bogus document, namely a skills assessment reference dated 19 October 2009 from “Highlights Hair and Makeup by Ching Mercardo”. It found that the First Applicant did not meet PIC 4020(1) (Tribunal at [44]-[46]). That finding is not the subject of challenge in this Court.
The Tribunal then considered whether the requirements of PIC 4020(1) or (2) should be waived.
Consideration by the Tribunal of PIC 4020(4)
At [48] of its decision, the Tribunal paraphrased the operation of PIC 4020(4):
[48] The requirements of cl.4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa.
At [49] of its decision, the Tribunal explained:
[49]The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
The Tribunal continued:
[50]For the following reasons, the Tribunal is not satisfied that the requirements should be waived. As recorded in T1's decision record [Review Tribunal decision of 10 December 2012], at the time of that decision, the applicant had made no claims that there were any compelling circumstances or compassionate or compelling circumstances as referred to in PIC 4020(4).
The Tribunal recorded (at [51]) that at the hearing before it, in support of her claim that the Tribunal apply the PIC 4020(4) waiver the First Applicant said that:
(a)she has been doing volunteer work in the community teaching the Punjabi language to young children;
(b)she had also worked as a nurse for about a year, having undertaken a course as an assistant nurse;
(c)she also assisted a couple, one of whom is in a wheelchair and one of whom has dementia;
(d)she and her husband (the Second Applicant) also assist a blind person; and
(e)all of the persons she assisted were Australian citizens.
At [51] of its decision the Tribunal considered the above, but did not consider them to be compelling circumstances that affect the interests of Australia. That is, the Tribunal was not satisfied that the First Applicant’s claims met PIC 4020(4)(a).
At [52], the Tribunal then stated:
[52]While the Tribunal accepts that her assistance to Australian citizens suffering from disabilities may possibly constitute compassionate circumstances affecting the interests of an Australian citizen, the applicant has provided no details and there is nothing before the Tribunal to satisfy it that, in the applicant's absence, the people concerned would not be able to receive assistance from other sources. In these circumstances, the Tribunal does not consider that the matters raised constitute circumstances that are sufficiently compelling as to justify the granting of the Visa.
(The emphasis added is that given in ground 3 of the Applicants’ grounds of review in the application before this Court.)
The Tribunal concluded at [53] that “Therefore the requirements of cl.4020(1) should not be waived”, at [54] that on the basis of the above the First Applicant did not satisfy PIC 4020 for the purposes of cl.485.224, and at [55] that in the absence of any evidence to indicate that the Second or Third Applicants met the primary criteria for the Visas none of the Applicants met the primary criteria for the grant of the Visas.
The Applicants’ ground of review
The application in this Court sets out three grounds for review. Before me the Applicants did not press grounds 1 and 2. They pressed ground 3. It is as follows:
3. The Second Respondent misinterpreted the applicable law and or misapplied the law to the facts.
Particulars:
(i)The Tribunal misinterpreted the applicable law and or misapplied the law to the facts in relation to subclause 4020(4) of the regulations.
(a)In considering whether the waiver contained in subclause 4020(4) should be applied , the Tribunal stated:
… (The particulars then reproduced [51] and [52] of the Tribunal’s decision, giving emphasis to the last sentence of [52]: see above at [16].)
(b)The Tribunal failed to understand that for the purposes of subclause 4020(4), 'compassionate circumstances' and 'compelling circumstances' have different legal tests. Because of such failure, the Tribunal treated them as being one and the same, such that it did not apply the law to the facts.
Proceedings in this Court
The parties’ submissions
The Applicants submit that the Tribunal at [52] (see above at [16] and the emphasis there reproduced) elided the disjunctive concepts of “compassionate circumstances” and “compelling circumstances” in PIC 4020(4)(b). They submit the Tribunal treated them as being one and the same, when the review task before it was that it should have, separately, considered and determined whether: (i) the claims made by the First Applicant were compassionate circumstances that affect the interests of an Australian citizen; (ii) the claims made by the First Applicant were compelling circumstances that affect the interests of an Australian citizen; (iii) the claims made by the First Applicant of the Second Applicant’s assistance were compassionate circumstances that affect the interests of an Australian citizen; and (iv) the claims made by the First Applicant of the Second Applicant’s assistance were compelling circumstances that affect the interests of an Australian citizen, in each case so as to justify the grant of the Visas.
The Applicants submit that the Tribunal at [52] required that the matters claimed as “compassionate circumstances” be “sufficiently compelling” in order to satisfy it under PIC 4020(4)(b). The Applicants point to the Tribunal’s reliance on “in these circumstances” (namely that the First Applicant had “provided no details” of the claimed assistance and that there was nothing before it to satisfy it that the people concerned would not be able to receive assistance from other sources) to determine that the matters relied on by the First Applicant as compassionate circumstances were not “sufficiently compelling”, and accordingly the Tribunal did not properly undertake its review task.
The First Respondent accepts that the concept of “compassionate circumstances” is distinct from the concept of “compelling circumstances”, and that the requirements in PIC 4020(4)(b) are disjunctive, i.e. the discretion may be enlivened if there are either compassionate or compelling circumstances which have the requisite effect on the interests of, inter alia, Australian citizens, and which justify the granting of the visa.
The First Respondent submits, however, that reading the Tribunal’s reasons as a whole it applied the correct approach. It submits that the grammar and syntax of the Tribunal’s reasons are not to be parsed at the expense of the whole. It submits that the Tribunal expressly and separately addressed the meaning of each term at [49], and that at [52] the Tribunal considered first, whether the matters relied on by the First Applicant at [51] satisfied the test of compassionate circumstances, and secondly, whether those matters were compelling circumstances enlivening the exercise of discretion.
The First Respondent emphasises the Tribunal’s use in [52] of “may possibly” as showing that the Tribunal accepted the theoretical possibility that the First Applicant’s assistance could amount to compassionate circumstances, but that it concluded that the paucity of evidence before it could not justify such a conclusion. In the last sentence of [52] the Tribunal then, so the First Respondent submits, addresses the disjunctive consideration of compelling circumstances.
The meanings of relevant terms
The Macquarie Dictionary (2018) defines “compelling” as “demanding attention or interest” and as “convincing”. It defines “compassionate” as “having or showing compassion”, and, in turn, defines “compassion” as “a feeling of sorrow or pity for the sufferings or misfortunes of another; sympathy”.
At [49] the Tribunal referred to Plaintiff M64/2015 v Minister for Immigration [2015] HCA 50; 258 CLR 173. The High Court, per French CJ, Bell, Keane and Gordon JJ (considering the phrase “compelling reasons for giving special consideration” in cl.202.222(2) of Schedule 2 of the Regulations), there stated that:
[31]In addition, the state of mind required of the Minister (or a delegate) must be reached by reference to “reasons” that are “compelling”; that is, those reasons must “force or drive the decision-maker” “irresistibly” to be satisfied that “special consideration” should be given to granting the particular application. Paragraphs (a), (b) and (c) of cl.202.222(2) may be met by an applicant in a general way, but the reasons why that is so may not be sufficiently compelling to satisfy the Minister that “special consideration” should be given to granting the application. (footnotes not reproduced)
In Babicci v Minister for Immigration [2005] FCAFC 77; (2005) 141 FCR 285, Tamberlin, Conti, and Jacobson JJ stated (in relation to “compelling” in the context of “compelling circumstances”):
[21]In our opinion there is no error in construing “compelling circumstances” to mean circumstances which force or drive the decision-maker, in a metaphorical rather than a physical sense, to decide whether or not the jurisdictional fact exists for the exercise of the discretion. We were told that no case has authoritatively construed the phrase and the whole of the debate depended upon dictionary definitions of the word “compelling”.
[22]In our view nothing turns on the fact that the MRT’s interpretation relied upon the present participle of the verb “to compel”. We respectfully disagree with the learned primary judge’s view of this.
[23]In our opinion the true issue for consideration is whether the MRT asked itself the correct question by proceeding on the basis that “compelling circumstances” were those which “forced or drove” or “compelled” a particular result.
[24]There are, as was acknowledged in the debate, shades of differences between the various dictionary definitions of “compelling”. But on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg.1.20J(1) should be waived.
Recently, in Kaur v Minister for Immigration [2017] FCAFC 184 (the first appellant was a Ms Balihar Kaur), the Full Court of the Federal Court of Australia, in the context of PIC 4020(4)(a) said (at [26]) that “compelling circumstances” were “forceful”. The Full Court stated that PIC 4020(4)(a) set up a two‑staged inquiry, it obliges that the decision maker first be satisfied that compelling circumstances existed, and only then, may the decision maker go on to consider those circumstances in the application of his or her discretion.
In Mala v Minister for Immigration [2005] FMCA 556, her Honour Judge Barnes (then FM) expressed the distinction between compelling and compassionate as follows:
[21]Counsel for the applicant contended that, consistent with the ordinary meaning of the word, "compelling" in reg.2.05(4)(a) meant "invoking substantial or great sympathy". However such a definition is more applicable to the concept of "compassionate", which the Macquarie Dictionary defines as "having or showing compassion" which in turn is defined as "a feeling of sorrow or pity for the sufferings or misfortunes of another, sympathy". In contrast, compelling is defined in the Macquarie Dictionary as "demanding attention or interest" when used as an adjective.
Consideration
First, PIC 4020(4)(a) and (4)(b) specify different tests. Paragraph (4)(a) requires that the Minister be satisfied that there are “compelling circumstances” to enliven the application of the Minister’s discretion. Secondly, in contrast, PIC 4020(4)(b) provides that the application of the Minister’s discretion is enlivened if the Minister is satisfied that “compassionate or compelling circumstances” exist in relation to the interests of (inter alia) an Australian citizen. In context, the use of the disjunctive “or” in paragraph 4(b) directs that the terms “compassionate” and “compelling” are independent concepts, and thus the paragraph provides for the Minister to be satisfied of the existence of either of two circumstances, each having a different character. As the ordinary meanings of the words and judicial consideration of the terms establishes, in the context of PIC 4020(4)(b) in order to be satisfied that “compassionate circumstances” exist the decision maker is not required to be satisfied the circumstances are “compelling” or that he or she is “compelled” to the necessary state of satisfaction, nor need “compelling circumstances” elicit compassion to satisfy the decision maker.
It may be accepted, as the First Respondent urges, that the Tribunal’s reasons “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: Collector of Customs v Pozzolanic (1993) 43 FCR 280, 287; and are “meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272.
It is also well established that “deficiency in the expression of (the Tribunal’s) reasons does not constitute jurisdictional error”: Minister for Immigration v SZNPG [2010] FCAFC 51 [48], referring to Re Minister for Immigration: Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407.
I do not comprehend these cautions as requiring me to accept uncritically the decision before me for judicial review where the decision maker has conflated discrete concepts, misapplied relevant tests, or omitted one or more necessary steps from their reasoning.
It is true that at each of [48], [49] and [50] the Tribunal recited the whole statutory phrase “compassionate or compelling circumstances”, and at [49] that it cited Plaintiff M64/2015 and set out the ordinary meaning of “compassionate”. It does not follow, however, from those recitations of the statutory phrase and its reference to authority and ordinary meaning at [49] that the Tribunal in its consideration at [52] then applied those meanings disjunctively as separate concepts.
I consider that the Tribunal conflated the discrete concepts of “compassionate” and “compelling” in its consideration and determination at [52] whether it was satisfied the circumstances relied upon by the First Applicant existed as required by PIC 4020(4)(b).
I find that the Tribunal at [52] mistakenly required as its state of satisfaction for PIC 4020(4)(b) that the circumstances be both “compassionate” and “compelling” – in the words of the Tribunal that they be “sufficiently compelling”. Whilst it was alive to the possibility that the matters claimed “may possibly constitute” compassionate circumstances, by its finding that “in these circumstances” (of the paucity of detail of the claimed matters and non-satisfaction of lack of alternative assistance available to those assisted) the matters raised were not “sufficiently compelling”, the Tribunal conflated two discrete concepts to require that the claimed compassionate circumstances be sufficiently compelling in order for it to be satisfied circumstances within paragraph (4)(b) existed.
The Tribunal thereby fell into jurisdictional error.
Conclusion
I have reached the conclusion that the Applicants have established ground 3 of the application.
The Application should be allowed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Baird
Associate:
Date: 25 June 2018
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