Kaur v Minister for Immigration
[2013] FCCA 1162
•4 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1162 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled residence visa – whether the Tribunal misinterpreted the law, made an arbitrary or irrational decision or breached s.360 of the Migration Act 1958 (Cth) considered. |
| Legislation: Acts Interpretation Act 1901 (Cth), s.15AB |
| Clements v Bull (1953) 88 CLR 572 Quarm v Minister for Immigration (2008) 216 FLR 192 Qui v Minister for Immigration (1994) 55 FCR 439 SZOOR v Minister for Immigration (2012) 202 FCR 1 |
| First Applicant: | MANINDER KAUR |
| Second Applicant: | GURSIMRAN SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 73 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 21 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 4 October 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Dobbie Dobbie & Devine Immigration Lawyers |
| Counsel for the Respondents: | Mr J Kay Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The title of the first respondent be amended to “Minister for Immigration and Border Protection”.
A writ of certiorari shall issue removing the record of the Migration Review Tribunal decision made on 20 December 2012 into this Court for the purpose of quashing it.
An order of mandamus shall issue requiring the Migration Review Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG73 of 2013
| MANINDER KAUR |
First Applicant
GURSIMRAN SINGH
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 20 December 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Skilled Residence (Class VB) visas.
The following statement of background facts is derived from the submissions of the parties.
The applicants are both citizens of India. The second applicant (Mr Singh) is a party to the proceedings solely by virtue of his inclusion as a member of the family unit; it is therefore the first applicant (Ms Kaur) who must satisfy the court that the Tribunal fell into error.
On 30 December 2010, the applicants lodged an application for a Class VB (subclass 885 and subclass 886) visa. Ms Kaur was the person seeking to satisfy the primary criteria for the grant of the visa. Mr Singh was included as a secondary applicant, on the basis of being a member of the family unit of Ms Kaur[1].
[1] Court Book (CB)1-17; CB106-112
In support of the application, Ms Kaur gave an answer on the application form that she had proficient English, as a result of undertaking an International English Language Testing System (IELTS) test on 20 November 2010[2]. She also provided the IELTS test report form (test report form number 10IN011485OTPM855G), and a letter from the British Council, dated 20 November 2010, as evidence that she had proficient English[3].
[2] CB15-16
[3] CB28-29
A delegate of the Minister made enquiries as to the genuineness of the IELTS test report form and the British Council letter. The results and the letter were found to be not genuine[4].
[4] CB63, CB70, CB73
Criterion 885.224, at the time Ms Kaur applied for the visa, did not contain public interest criterion (PIC) 4020. That is because PIC 4020 was introduced and took effect on 2 April 2011 (the relevance of this fact is discussed in the applicants’ submissions).
On 26 July 2011, Ms Kaur was given a procedural fairness letter from a delegate of the Minister in relation to the IELTS test results and the letter from the British Council. Ms Kaur was put on notice that providing a bogus document or information that was false or misleading in a material particular was relevant to public interest criterion 4020 of Schedule 4 of the Migration Regulations 1994 (Cth) (Regulations)[5].
[5] CB8-85
On 5 September 2011, Ms Kaur responded, providing IELTS results of 6.0 in each band, for a test undertaken on 20 August 2011. The response also include a statutory declaration from Ms Kaur declaring that she did not know that the results previously submitted were, as she puts it, fraudulent[6].
[6] CB88-96
On 21 September 2011, a delegate of the Minister refused the applicants’ Class VB visa application on the basis that Ms Kaur had not satisfied clause 885.224 at the time of decision, which, by that time, contained PIC 4020[7]. The delegate found that the tests results and the letter from the British Council were “bogus documents” for the purposes of s.97 of the Migration Act 1958 (Cth) (Migration Act). PIC 4020(4)(b) provides that the Minister may waive any or all of the requirements of PIC 4020 if he is satisfied, relevantly, that there are compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident. The delegate declined to waive the requirements because there was nothing before him to support a waiver.
[7] CB119-135
On 7 October 2011, the applicants sought review of the delegate’s decision at the Tribunal[8].
[8] CB136-143; CB144
On 27 August 2012, the applicants made submissions to the Tribunal in writing, and included an IELTS test result for Ms Kaur, for a test undertaken on 4 August 2012, evidencing proficient English[9]. The submission addressed the waiver provisions of PIC 4020, contained in PIC 4020(4).
[9] That test result and the result of the test undertaken on 20 August 2011 did not figure in the Tribunal’s decision and it was not suggested that they should have
Ms Kaur has a sister, Ms Kulveer Begum. Ms Begum (as well as Ms Kaur) gave evidence at the Tribunal hearing on 28 August 2012[10]. Ms Begum and her husband have a son who at the time of the Tribunal’s decision was four years old. Ms Begum and her family are all Australian citizens. The Tribunal accepted that:
a)Ms Begum’s husband was a taxi driver;
b)Ms Kaur had been assisting Ms Begum by baby-sitting Ms Begum’s son during the day while Ms Begum was at work;
c)if Ms Begum were unable to work it would have an adverse impact on her family’s finances.
[10] CB178; see transcript annexed to the affidavit of Ma Rosario Xiella Devine, affirmed 6 August 2013
The waiver was addressed on the basis that Ms Kaur’s sister has a child of tender years; that Ms Kaur’s sister, and her sister’s husband work, in order to make ends meet; they were able to work because Ms Kaur looked after her sister’s child; Ms Kaur’s sister and her family would suffer significant hardship if the visa were not granted, because no one would be able to look after the child if Ms Kaur had to depart Australia (if the Class VB visa was not granted)[11].
[11] CB161-167; CB165-166
The judicial review application
The present proceedings began with a show cause application filed on 16 January 2013. The applicants now rely upon an amended application filed on 6 August 2013. That application contains the following particularised grounds:
1. The Second Respondent misinterpreted and or misapplied the law to the facts
Particulars:
(i) The Tribunal misinterpreted the applicable law or misapplied the law to the facts by finding that item 4020 of Schedule 4 and subclause 885.224 of Schedule 2 of the Migration Regulations 1994 (‘the regulations’) applied to the First Applicant:
(a) Item 4020 was introduced and took effect on 2 April 2011 by virtue of r5 of the Migration Amendment Regulations 2011 (No.1) and items [3] and [4] of Schedule 3 of those amending regulations.
(b) Subregulation 5(2)(a) of the amending regulations is invalid in so far as it purports to apply to an application already lodged before the item was introduced, because it is manifestly unjust and or oppressive and is contrary to the intention of Parliament in relation to the use of the regulation making power it [authorised] for use by the First Respondent.
(c) The Tribunal therefore misinterpreted the applicable law or misapplied the law by finding that the First Applicant had to satisfy item 4020 for the purposes of subclause 885.224.
(ii) The Tribunal misinterpreted the applicable law or misapplied the law concerning the application of subitem 2040(4).
(a) Subitem 4020(4) required the Tribunal to consider whether compelling circumstances that affect the interests of Australia, or whether compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, justified the granting of the visa sought.
(b) In determining whether the First Applicant satisfied subitem 4020(4), the Tribunal unlawfully limited its enquiry to situations that fell within the types of circumstances identified in the Explanatory Statement to the Migration Amendment Regulations 2011 (No.1), rather than the broader enquiry required by subitem 4020(4).
2. The decision of the Second Respondent is arbitrary or irrational
Particulars:
(i) The Tribunal’s decision is arbitrary or irrational:
(a) Subitem 4020(4) of the regulations provides:
[4020]…
(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.
(b) The First Applicant claimed that there were compassionate or compelling circumstances that affected the interests of Australian citizens (namely her Australian citizen sister, her sister’s son and her sister’s husband) to justify the granting of the Class VB (subclass 885) visa sought. Those circumstances were that she looked after her sister’s minor child so that her sister could work, as her sister’s family could not survive on one income.
(c) The Tribunal accepted that there would be an adverse impact on the family finances of the First Applicant’s sister if the sister could not work.
(d) Despite this, the Tribunal required that the First Applicant’s sister to show that she could not leave her employment and get alternative employment during the day when her son was at day care or school. That requirement was wholly irrational or arbitrary when there was no evidence that she could find suitable alternative employment and during the hours as stated by the Tribunal in its decision, and given that she had progressed from casual employment to permanent employment because of the First Applicant’s assistance.
3. The Tribunal failed to provide the Applicant the hearing prescribed by s.360 of the Act or failed to carry out its core function of the review.
(a) In finding the Applicant did not satisfy subitem 4020(4), the Tribunal found that the Applicant’s sister, Ms Kulveer Begum, had not provided any probative evidence that she was
unable to make alternate babysitting arrangements or [was] unable to obtain a day shift in her current employment or [was] unable to obtain alternative employment which will enable her to work during the day when her son is in Day care or at school.
(b) The Tribunal was obligated to, but never put to the First Applicant, or to Ms Kulveer Begum, that Ms Begum show that she was unable to make alternate babysitting arrangements, or was unable to obtain a day shift in her current employment, or was unable to obtain alternate employment, which would have enabled her to work during the day when her son is in Day care or at school.
(c) This is especially so where Ms Begum stated at the hearing that she would lose her job and that her family could not survive on one income, if the First Applicant did not care for her child as stated.
(d)The Tribunal’s failure to do so meant that it did not provide the hearing prescribed by s.360 and that it did not carry out its core function of review. That failure constitutes jurisdictional error.
I have before me as evidence the court book filed on 13 June 2013 and the affidavit of Ma Rosario Xiella Devine made on 6 August 2013 which introduces a transcript of the hearing conducted by the Tribunal on 28 August 2012.
Both parties made oral and written submissions.
Consideration
The applicants’ contentions
This application raises some issues that I have previously dealt with in the matter of Kaur & Ors v Minister for Immigration[12]. In particular, Ground 1(i) is the same as Ground 1(ii) in my earlier decision in Kaur. The applicants’ contentions in support of this ground were prepared by the same solicitors as in the earlier case of Kaur and are materially the same in support of this ground.
[12] [2013] FCCA 933
Clause 885.224 relevantly provided at the time of decision:
The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021; …
PIC 4020 relevantly provided:
(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 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 the application;
the applicant and each 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 interests 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.
Note Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.
PIC 4020(4) required the Tribunal to consider whether compelling circumstances that affect the interests of Australia, or whether compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, justified the granting of the visa sought.
Ms Kaur claimed that the waiver should be granted because of the care that she provides to her sister’s child. At the hearing Ms Kaur’s evidence in relation to the waiver was as follows[13]:
Q144 Does your case affect the interests of Australia or an Australian citizen, Australian permanent resident or eligible New Zealand citizen?
I think every day I think of my nephew because my sister ..... and she has ..... overtime, she finish 9.00, 9.30 sometime and I finish 6 o’clock, then directly I go to childcare and pick up his baby and take care of him, feed him and everything, then my sister come back and she take, take out her son. Like on Tuesday to Friday I help my sister to take care of her baby.
[13] Transcript at page 20
Ms Kaur’s sister, Ms Begum, gave the following evidence at the hearing[14]:
[14] Transcript at pages 23-25
A(I)(WIT) Do you want to hear something about my family?
TRIBUNAL MEMBER
Q159 Well, I’ve just been given your citizenship papers.
MS BEGUM
Yeah.
TRIBUNAL MEMBER
Q160 And you have a son who is now 4 years old?
MS BEGUM
Yeah, nearly 4 years old, yeah. I’m working afternoon shifts, I’m working from ..... eight hours and sometime I have overtime also and I finish early in the morning, sometime I have long shifts also because sometime we are very busy and she look after my baby because all the daycares are here up to 6.30, I can’t pick my baby and my husband also working evening shifts, he is a taxi driver and I completely depend on her and her husband because they pick my baby and she feed her dinner, everything, she look after ..... look after him at the night-time.
TRIBUNAL MEMBER
Q161 How often does she look after the child?
MS BEGUM
Yeah, for the five days.
TRIBUNAL MEMBER
Q162 Monday to Friday?
MS BEGUM
Monday to Friday, yes, and sometime I have a shift on Saturday ..... because ..... no day care on the Saturday Sunday so she look after on Saturday Sunday also. My husband is also working on Saturday Sunday.
TRIBUNAL MEMBER
Q163 O.K. Mr Dobbie, are there any other questions you’d like me to ask the witness?
MR DOBBIE
If the applicant had to leave Australia say how would that affect you?
TRIBUNAL MEMBER
Q164 You’ve explained to me the current situation as far as your work is concerned and the assistance your sister gives you with caring for your child while you’re working. If your sister had to return, to leave Australian and return to India, what impact would that have on you and your son?
MS BEGUM
Yeah, definitely, like, you can understand the ..... for the last couple of years I’m trying to ..... because if my sister leave, that really, it’s hard for me, I’d have to leave my job. And you know, with the one person’s salary we can’t survive here because if we are working somewhere we ..... all the circumstances and if my sister leave, definitely I have to leave my job and, yeah. And I want to say something, that, that if ..... my husband because of my sister, because of her I got my job. When I start my work my son was nearly 1 year old and he, he was very sick all that time and she look after my son at that time, that’s because I was start working as a casual, casual job and because of her I am today a permanent employee and because of her I am living with my husband because on that time my circumstance ..... different because I was at home and ..... my husband ..... because I was not working he always asking me that why you are not working, then as a mother I don’t want to leave my baby, my sick baby in the day care, yeah, because she look after my son, that’s why I start work. If today I’m living with my husband because of her.
In determining whether Ms Kaur satisfied PIC 4020(4), the Tribunal is said to have unlawfully limited its enquiry to situations that fell within the types of circumstances identified in the Explanatory Statement (ES) to the Migration Amendment Regulations 2011(No 1)[15], rather than the broader enquiry required by PIC 4020(4). The applicants assert that the criterion required, in the present case, a determination by the Tribunal whether:
(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;
[15] CB185 at [95] - CB186 at [97]; CB18 at [100]
justify the granting of the visa.
Compassionate circumstances are not limited to those examples listed in the PAM or the ES. In Mala v Minister for Immigration[16], Federal Magistrate Barnes (as she then was) considered the meaning of compelling and the meaning of compassionate, for the purposes of waiving Condition 8503. Her Honour stated the following at [21]:
Counsel for the applicant contended that, consistent with the ordinary meaning of the word, “compelling” in Regulation 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. In Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590 O’Loughlin J suggested at [21]:
The circumstances that must fit the description of ‘compelling and compassionate’ must have developed since the grant of the visa … Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87. There is little doubt that both words call for the occurrence of an event or events that are far-reaching and most heavily persuasive. Incidental matters are not to be taken into account except where it is appropriate to have regard to their totality.
[16] [2005] FMCA 556
The applicants assert that the Tribunal did not undertake the broader enquiry required by PIC 4020(4), unlawfully fettering itself with an enquiry limited to the parameters it cited from the ES. This is evident by its finding at [100]-[101] [17]:
Having considered the evidence, the Tribunal is not satisfied that these circumstances are of the kind contemplated in the Explanatory Statement. The Tribunal is not satisfied that, in the circumstances of this case, there are compelling or compassionate circumstances that affect the interests of Australian citizens or Australian permanent residents.
In view of the above, the Tribunal is not satisfied that there are 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 eligible New Zealand citizen that justify the granting of the visas. Accordingly, the Tribunal has determined not to waive the requirements of PIC 4020(1)(a).
[17] CB186 at [100]-[101]
The applicants submit that, as a result of the Tribunal’s misinterpretation of the law and its misapplication of the law to the facts, it did not determine whether the waiver should be granted pursuant to PIC 4020(4). That error constitutes jurisdictional error.
In relation to Ground 2, the applicants contend as follows.
Ms Kaur claimed that there were compassionate or compelling circumstances that affected the interests of Australian citizens (namely her Australian citizen sister, her sister’s son and her sister’s husband) to justify the granting of the Class VB (subclass 885) visa sought. Those circumstances were that she looked after her sister’s minor child so that her sister could work, as her sister’s family could not survive on one income. This was relevant for the purposes of the waiver contained in PIC 4020(4).
The Tribunal accepted that there would be an adverse impact on the family finances of Ms Kaur’s sister if the sister could not work[18].
[18] CB186 at [99]
Despite this, the Tribunal required Ms Kaur’s sister to show that she could not leave her employment and get alternative employment during the day when her son was at day care or school. That requirement is said to have been wholly irrational or arbitrary when there was no evidence that she could find suitable alternative employment and during the hours as stated by the Tribunal in its decision, and given that she had progressed from casual employment to permanent employment because of Ms Kaur’s assistance[19].
[19] Transcript at pages 24-25 at Q164
The applicants submit that this was not a case where reasonable minds might differ[20]. The Tribunal therefore committed jurisdictional error.
[20] Minister for Immigration v SZMDS (2010) 240 CLR 611, per Crennan and Bell JJ at 647-648 [130]-[131]
In relation to Ground 3, the applicants contend that, in finding that Ms Kaur did not satisfy PIC 4020(4), the Tribunal found that Ms Kaur’s sister, Ms Begum, had not provided any probative evidence that she was:[21]
unable to make alternate babysitting arrangements or [was] unable to obtain a day shift in her current employment or [was] unable to obtain alternate employment which will enable her to work during the day when her son is in Day care or at school.
[21] CB99
The applicants submit that the Tribunal was obligated to, but never put to Ms Kaur, or to Ms Begum, that Ms Begum show that she was unable to make alternate babysitting arrangements, or was unable to obtain a day shift in her current employment, or was unable to obtain alternate employment, which would have enabled her to work during the day when her son is in daycare or at school. This is apparent from the transcript.
This is especially so where Ms Begum stated at the hearing that she would lose her job and that her family could not survive on one income, if Ms Kaur did not care for her child as stated[22].
[22] Transcript at pages 24-25 at Q164
The applicants submit that the Tribunal’s failure to do so meant that it did not provide the hearing prescribed by s.360 and that it did not carry out its core function of review. That failure constitutes jurisdictional error. The Tribunal thus failed to conduct its core function of review, thereby committing jurisdictional error[23].
[23] Minister for Immigration v Li (2012) 202 FCR 387, Greenwood and Logan JJ, at 395 [26]-[30]
The Minister’s contentions
The Minister’s submissions on the question of retrospectivity are similar but not identical to the Minister’s submissions in the earlier case of Kaur. The differences in my view simply reflect the fact that different counsel represented the Minister in the two cases.
On the issue of unreasonableness, the Minister submits that the applicants suggest that the Instrument is invalid because it is unjust or oppressive. This claim appears to be a claim that the Instrument is unreasonable in the sense considered by Lockhart J in Qui v Minister for Immigration[24] and by Besanko J in Guo v Minister for Immigration[25]. As noted by Besanko J in Guo, the test is very demanding and involves “a question of whether the delegated legislation represents a real exercise of the power in the empowering section”[26].
[24] (1994) 55 FCR 439
[25] (2009) 176 FCR 83
[26] at 92
The Minister submits that, properly construed, the relevant powers of delegation in s.31 and s.504 of the Migration Act do not inhibit, constrain or otherwise confine the Minister’s power to prescribe changes to visa criteria after an application has been made[27]. Relevantly, his Honour noted at [51]:
Unless this intent can be found in the Migration Act, the 2006 amending regulation, and its transitional provision, would prima facie be clearly within the regulation-making power provided under s.31(3), and be made for the purposes of that power. In its terms, the amending regulation both answers the description of a regulation authorised by s.31(3), and serves the purpose identified from that provision. Absent a confining intent found in other provisions, no added test of “proportionality” or “unreasonableness” could govern the validity of the regulation under the principle referred to in South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 at 165 (as discussed in Minister for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 116 ALR 54 at 66–67, and Vanstone v Clark (2005) 147 FCR 299 at 339).
[27] per Smith FM in Quarm v Minister for Immigration (2008) 216 FLR 192 at [50]-[53]
The Minister submits that there is nothing inherently or manifestly unreasonable or unjust in the change provided by the transitional provisions to the Amendment. No right of the applicants is affected. Even if the outcome creates unfairness to an applicant or an unreasonable result that, in and of itself, is insufficient to render the change invalid so long as it is made for an authorised purpose under a proper legislative power[28]. Similarly, there is no basis for concluding that the Instrument and the Amendment, as applicable to the applicants, is so lacking in reasonable proportionality as not to be a proper exercise of power[29].
[28] Clements v Bull (1953) 88 CLR 572
[29] South Australia v Tanner (1989) 166 CLR 161
One further point is noted in the Minister’s submissions. PIC 4020 was inserted into the Regulations, in part, to repeal clause 885.223 of Schedule 2. That clause, which on the applicants’ argument would have applied to them, required that there be no evidence that documents submitted were false or misleading. The change brought in by PIC 4020 merely broadened the existing prohibition by the addition of the concept of “bogus document” (arguably a bogus document is, in any event, a false one). In addition, PIC 4020 provided a benefit to applicants by allowing for waiver in compassionate or compelling circumstances. Such a change could in no meaningful sense be described as unreasonable, oppressive of unjust.
For these reasons, the Minister submits that the applicants’ submission in relation to PIC 4020 should be rejected. The Tribunal made no error in finding that it properly applied to the applicants.
As to the meaning of “compelling [or] compassionate circumstances”, the Minister submits that the requirements of PIC 4020(1) and PIC 4020(2) may, relevantly, be waived by the Minister if the Minister is satisfied that “compassionate or compelling circumstances that affect an Australian citizen” justify the granting of the visa. Ms Kaur claimed before the Tribunal that such circumstances existed in relation to her sister, Ms Begum. It is not in dispute that Ms Begum is an Australian citizen.
The Regulations, the Migration Act and the Amending Act do not provide any definition of what constitutes compassionate and compelling circumstances. The exercise of the power is discretionary and what constitutes such circumstances is a question of fact-finding and weight given to the relevant evidence by the Tribunal[30]. Paragraph [95] of the decision clearly indicates that the Tribunal understood this and therefore understood the need to assess the facts as presented by, and relied upon, by the applicants.
[30] per Judge Hartnett in Lakhani v Minister for Immigration [2013] FCCA 451 at [29]
The Tribunal’s reference to the ES is unsurprising. Consistent with the operation of s.15AB of the Acts Interpretation Act 1901 (Cth) - applicable in this case by virtue of s.13(1)(a) of the Legislative Instruments Act 2003 (Cth) – the ES was a proper source to confirm the ordinary meaning of the terms under consideration. The matters identified in the ES, to which the Tribunal referred, were nothing more than very broad examples (“family reasons”; “family members…without financial or emotional support”; “a parent…separate from their child”) demonstrating the ordinary meaning. To that extent, they supported the approach taken by the Tribunal as outlined in the first two sentences of [95].
In this context, the Minister submits that it is unclear what the applicants mean when they rely on an alleged failure by the Tribunal to undertake a “broader enquiry”. They do not identify in what way the Tribunal conducted any narrower enquiry. It is apparent from the decision that the Tribunal was aware that its role was to assess all of the facts that were relied upon by the applicants and weigh them.
The Minister submits that notwithstanding the terms of [30] of their submissions, it is apparent that the applicants’ case rests on a single sentence in the Tribunal’s reasons at [100] of the decision. The reason why this sentence demonstrates error is left largely unexplained but the Minister submits that the submission involves a miss-reading of the Tribunal’s reasons. Paragraphs [98] and [99] of the decision show that the Tribunal considered and weighed all of the factual circumstances relied upon by the applicants and, primarily due to a lack of probative evidence, the Tribunal was not satisfied that the circumstances were such as to warrant a conclusion that there were compelling or compassionate circumstances. That was an assessment based on the facts. The reference by the Tribunal to “circumstances of the kind” contemplated by the ES merely underline the Tribunal’s conclusion that the facts presented were insufficient to allow the Tribunal to be satisfied that the types of circumstance contemplated by the words “compassionate or compelling” were met in this case.
In relation to Ground 2, the Minister submits as follows. The law on when a decision-maker commits jurisdictional error because their decision is arbitrary or irrational is relatively settled by reason of the decision of the High Court in Minister for Immigration v SZMDS[31]. In that case, the plurality (judgment of Crennan and Bell JJ; Heydon J in a concurring judgment) placed a very high threshold on an applicant seeking to prove that a tribunal’s reasons were irrational. Although their Honours expressed their conclusions in slightly different terms, it is submitted that the correct position is as identified by the Full Court of the Federal Court in its analysis of SZMDS in SZOOR v Minister for Immigration[32], namely:
a)a decision cannot be illogical or irrational simply because one conclusion has been preferred over another; illogicality cannot be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence on which the decision could be based[33].
b)a decision was not illogical where reasonable minds might differ and that difference was one of degree, impression and empirical judgment; where a decision-maker gives reasons and those reasons do not reveal a logical or rational path of thought but the decision is one to which some logical or rational mind could have come then there is no jurisdictional error[34].
[31] (2010) 240 CLR 611
[32] (2012) 202 FCR 1
[33] per McKerracher J at 22-23. His Honour noted that in his view that the judgment of Heydon J although differently expressed by comparison with the judgment of Crennan and Bell JJ was not at odds with that judgment (at 23)
[34] per Rares J at 3-4
The Minister concedes that the applicants are correct in stating that the Tribunal accepted a number of matters put by the applicants, including that there would be an adverse financial impact on Ms Begum’s family if she were unable to work. However, the alleged irrationality identified at [34] of their submissions shows a misunderstanding of what the Tribunal decided and how it did so.
Contrary to the applicants’ submission, the Tribunal did not require Ms Begum to show that “she could not leave her employment and get alternative employment…”. Rather, the Tribunal found that the applicants had not discharged their burden of proving that there were “compassionate or compelling circumstances that affect the interests of Australian citizens” (emphasis added). The applicants had to demonstrate in this case that Ms Begum’s interests were materially affected. The Tribunal concluded that whilst the applicants had demonstrated that there would be financial hardship if Ms Begum did not work, they did not demonstrate that Ms Begum was unable to work if Ms Kaur were no longer looking after Ms Begum’s child. It was that latter consideration that was critical and not made out on the evidence. It is submitted that there is no doubt that such an analysis – and conclusion – was reasonably open to the Tribunal. It does not rise to the level necessary to show error for irrationality.
In relation to Ground 3, the Minister submits that Ms Kaur’s case for waiver of PIC 4020 essentially relied on persuading the Tribunal that by looking after Ms Begum’s child, Ms Kaur enabled her sister and brother-in-law to work. This is how the issue was put in the applicants’ written submissions.[35] It was a ready inference from the way the issue was framed by the applicants that were Ms Kaur to be no longer available to look after Ms Begum’s son (by reason of the rejection of her visa application) then Ms Begum would not be able to work.
[35] CB165-166
During the hearing, Ms Kaur gave evidence about her care of Ms Begum’s child. That evidence addressed what she did and the fact that her sister worked at the same time; it did not address what would happen if she were no longer there[36]. Ms Kaur’s legal representative was invited to identify other questions which might be posed but he did not pursue the issue of what would happen if Ms Kaur could no longer provide baby-sitting[37].
[36] The answer to Q144 at Transcript, page 20
[37] The answer to Q146 at Transcript, page 21
Ms Begum also gave evidence to the Tribunal. Ms Begum was in a position to provide direct evidence of what would happen in the event that Ms Kaur could no longer look after Ms Begum’s child. In fact, her initial evidence dealt with the fact that her current job required her to work during the day and therefore necessitated her sister looking after the baby; it did not deal with the issue of why Ms Begum would not be able to change her work arrangements so as to enable her to look after her child in the absence of Ms Kaur[38]. Subsequently, the Tribunal did seek to clarify what would happen to Ms Begum if Ms Kaur were to return to India[39]. Ms Begum’s evidence was that she would “have to leave my job” and that “with one person’s salary we can’t survive here”. That was a conclusion about the consequences of Ms Kaur returning to India; it was not evidence that addressed the issue of why Ms Begum would not be able to work[40].
[38] The answer to Q160 at Transcript, page 23
[39] Transcript, page 24 at Q164
[40] The answer to Q164 at Transcript, page 24
Ms Kaur identified the issue of Ms Begum’s ability to work as the basis for the application of the waiver of PIC 4020. It was her inability to work that supported the conclusion that there would be a financial impact on Ms Begum’s family. In turn, Ms Begum had to demonstrate not only that she could not work and look after her child adequately at the same time, but also that Ms Kaur was the only person who could look after her child. These matters necessarily arose from the way in which the applicants put their case. It was incumbent on them to provide evidence to support that case. However, the evidence that was provided appeared to assume a necessary connection between Ms Kaur’s absence and Ms Begum’s inability to work. It was this problem that the Tribunal identified when it concluded that no probative evidence had been provided of the lack of alternative arrangements. That was a conclusion available to the Tribunal on the material available and based on the way that the applicants, and their legal representative, chose to frame their case.
The applicants state that the Tribunal was “obligated” to put the matters identified at [99] of the decision. The Minister submits that, as the foregoing analysis demonstrates, that is a misconception about what the Tribunal did. In Minister for Immigration v Li[41], a plurality of the High Court (Hayne, Kiefel and Bell JJ) identified, obiter, the purpose of s.360(1) as[42]:
to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review….
Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case.” (emphasis added)
[41] [2013] HCA 18
[42] at [60]-[61]
In this case, the applicants, who were legally represented, delineated the issue of the connection between Ms Kaur’s care of Ms Begum’s child and Ms Begum’s ability to work. Framed in that way, it was incumbent on the applicants to provide evidence to show that Ms Begum would be unable to work without the presence of Ms Kaur. That proposition was asserted but never proved and it was that failure that underpinned the Tribunal’s conclusion at [99] of the decision. It follows that the applicants were provided with an opportunity to present evidence but failed to do so in the manner required to prove their case. Therefore, no failure in relation to s.360 arose.
Resolution
Is the amending regulation invalid by reason of retrospective operation?
On this issue, in my earlier judgment in Kaur I said[43]:
I also reject Ground 1(ii). The amending regulations relied upon by the applicants did not remove any pre-existing visa entitlement the applicants had. Nor did the Regulations impose any additional burden by way of a time of application criterion. The effect of the amendments was to render material at the time of decision something which had occurred before the amendments had taken effect. It is true that the amending regulations introduced a substantial deterrent in the form of the three year banning period where PIC 4020 was not satisfied. However, the applicants did not have to pursue their visa application in the light of the amendments. They could have withdrawn it. In my view, and consistently with the decision of the High Court in Toowoomba Foundry Pty Ltd the operation of the amendments did not destroy as at a past date any rights which then existed and neither did it impose at a past date any liability which did not then exist. I conclude that the amendments did not take effect before the date of registration of the Regulations and hence they did not offend against s.12(2) of the Legislative Instruments Act. Neither do I think it necessary to consider any common law presumption against any retroactive operation. (footnote omitted)
[43] op cit
I have not changed my opinion. I reject Ground 1(i) for the same reasons as I rejected the argument in the earlier case of Kaur. Further, I agree with the Minister’s submissions referred to at [38]-[41] above.
Did the Tribunal misapply PIC 4020(4)?
The issue in relation to this ground is whether the Tribunal erred by limiting its consideration to the ES. The Tribunal, at [95] of its reasons[44] discussed the ES and correctly noted that it was not bound by it. There is an error in the Tribunal’s reference to the waiver condition in that the Tribunal used the conjunctive “and” rather than the disjunctive “or”. This appears to have been a simple slip as the correct formulation was used elsewhere in the Tribunal’s reasons. At [97][45] the Tribunal referred to three examples from the ES of compelling or compassionate reasons for waiving the requirements of PIC 4020. The Tribunal recognised at [98] that a relevant reason for waiver advanced on behalf of the applicants was that family members in Australia would be left without financial or emotional support.
[44] CB185
[45] CB186
The applicant’s focus upon the Tribunal’s reasons at [100]:[46]
Having considered the evidence, the Tribunal is not satisfied that these circumstances are of the kind contemplated in the Explanatory Statement. The Tribunal is not satisfied that, in the circumstances of this case, there are compassionate or compelling circumstances that affect the interests of Australian citizens or Australian permanent residents.
[46] CB186
I do not accept that in this paragraph the Tribunal demonstrates any error. The reference to a circumstance of a kind contemplated in the ES is simply a reference to the postulated ground for waiver, namely that family members in Australia would be left without financial or emotional support. The Tribunal was expressing in that paragraph its view that that proposition had not been made out to its satisfaction. The Tribunal should not be taken to have been saying that only circumstances identified in the ES could be relevant.
I reject this ground of review.
Is the decision of the Tribunal arbitrary or irrational?
I also reject the contention that the Tribunal’s decision is arbitrary or irrational. In that regard, I accept the Minister’s submissions referred to at [48]-[50] above. It is apparent from the Tribunal’s reasons, and the transcript of the Tribunal hearing, that the Tribunal was well aware of the applicants’ contentions concerning the adverse impact, as they saw it, of the unavailability of Ms Kaur to care for her sister’s child. The Tribunal was, however, not persuaded that that adverse impact could not be overcome by means other than Ms Kaur’s migration to Australia. In particular, the Tribunal took the view that it was not impossible for Ms Begum to make alternate babysitting arrangements or rearrange her working hours in consultation with her employer. The Tribunal did not accept that the unavailability of Ms Kaur would necessarily have the result that Ms Begum would lose her job and that the family would suffer the financial strictures of that. In other words, while the Tribunal recognised the risk of that occurring, it was not satisfied that the risk was so clear as to constitute a compassionate or compelling circumstance. I see nothing irrational or arbitrary in that reasoning.
Did the Tribunal breach s.360 of the Migration Act?
As is noted in the applicants’ submissions, Ms Begum stated at the hearing that she would lose her job and that her family could not survive on one income if Ms Kaur did not care for her child.[47] It is apparent from the Tribunal’s reasoning at [99] that the Tribunal was not persuaded about that assertion by Ms Begum. It is apparent that the review turned on the probative value of Ms Begum’s assertion. Ms Begum gave evidence on behalf of Ms Kaur as a visa and review applicant. Section 366B of the Migration Act prevented Ms Begum from being assisted while she was giving evidence. Further, and more importantly, s.366D of the Migration Act prevented Ms Kaur or her representative from questioning Ms Begum in support of the review application. Ms Begum had not provided a written statement of her evidence and accordingly her oral evidence was critical. The assertions made by Ms Begum were made before the Tribunal and did not figure in the delegate’s decision.
[47] Transcript, pages 24-25
In Li at [60] the High Court said:
The duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example. Section 360(1) and its purpose are central to Div 5 and the conduct of the review for which the Division provides. The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues arising in connection with the decision under review. The sub-section contemplates that such a hearing will be had before the Tribunal makes its decision. The Tribunal's duty therefore extends further than merely issuing an invitation to an applicant to appear.
That statement by the High Court is entirely consistent with its earlier decision in SZBEL v Minister for Immigration[48] in relation to s.425, the mirror provision applicable to Refugee Review Tribunal proceedings.
[48] (2006) 231 ALR 592
In my view, in order to comply with its obligation under s.360 of the Migration Act to provide Ms Kaur with a fair hearing opportunity the Tribunal needed to ensure that Ms Kaur understood that the essential and significant issue upon which the review would turn was the probative value of Ms Begum’s evidence. Although the Tribunal did give to Ms Kaur’s representative the opportunity to suggest a question[49] and Ms Begum provided a responsive answer about the impact on her and her family if Ms Kaur had to leave Australia, it was not taken anywhere by the presiding member. That was the point at which the Tribunal needed to explain clearly the significance of Ms Begum’s evidence (and more particularly the probative value of that evidence) to the outcome of the review. That was not done. The omission, in my view, has the result that the Tribunal did not comply with its obligation under s.360 to provide a fair hearing opportunity and Ms Kaur should receive the relief she seeks.
[49] Transcript, page 24
Conclusion
I will order that writs of mandamus and certiorari issue.
I will hear the parties as to costs.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 4 October 2013
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