Kaur v MIBP

Case [2018] FCCA 1614

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
Re Minister for Immigration: Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration v SZNPG [2010] FCAFC 51
Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259

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

  1. A writ of certiorari issue, quashing the decision of the second respondent dated 23 June 2016.

  2. 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.

  3. 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

  1. 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

  1. 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…

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Details
AGLC
Kaur v Minister for Immigration [2018] FCCA 1614
Case
[2018] FCCA 1614
Decision Date

CaseChat Overview and Summary

This matter concerned an application for judicial review brought by the Applicants against the Minister for Immigration and Border Protection (First Respondent) and the Administrative Appeals Tribunal (Second Respondent). The Applicants sought to challenge the Tribunal's decision to refuse their visa applications. Before the Court, the Applicants did not pursue the first two grounds of review, focusing solely on the third ground, which alleged that the Tribunal misinterpreted and misapplied the law concerning subclause 4020(4) of the relevant regulations.

The central legal issue before the Court was whether the Tribunal had correctly interpreted and applied subclause 4020(4) of the Migration Provisions in considering the waiver of certain visa requirements. Specifically, the Applicants argued that the Tribunal erred by treating the concepts of "compassionate circumstances" and "compelling circumstances" as synonymous, rather than as distinct and disjunctive grounds that could independently enliven the Tribunal's discretion to grant a waiver. They contended that the Tribunal failed to separately assess whether the circumstances presented met either the compassionate or compelling test, and that its requirement for compassionate circumstances to be "sufficiently compelling" demonstrated this error.

The Court noted that the First Respondent accepted that "compassionate circumstances" and "compelling circumstances" are distinct legal concepts and that subclause 4020(4)(b) is disjunctive, meaning the waiver discretion can be enlivened by either compassionate or compelling circumstances that affect the interests of an Australian citizen and justify granting the visa. The Applicants' submission was that the Tribunal, by eliding these disjunctive concepts and requiring compassionate circumstances to be "sufficiently compelling," failed to properly undertake its review task and apply the law to the facts before it.

Orders

Orders of the court

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Background

Background to the litigation

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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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