Kaur v Minister for Immigration
[2019] FCCA 2629
•10 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2629 |
| Catchwords: MIGRATION – Application for student visa – provision of misleading information at the time of the making of the application for the visa – no compelling reasons for waiver of PIC 4020 criteria – application dismissed. |
| Legislation: Migration Regulations 1994 (Cth), Sch.2. cl.500.211, 500.311, Sch.4. cl.4020 |
| Cases cited: CED15 v Minister for Immigration and Border Protection [2018] FCA 451 Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 |
| First Applicant: | VEERPAL KAUR |
| Second Applicant: | GURJANT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 683 of 2017 |
| Judgment of: | Judge Egan |
| Hearing date: | 10 September 2019 |
| Date of Last Submission: | 10 September 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 10 September 2019 |
REPRESENTATION
| First Applicant: | In person |
| Second Applicant: | In person |
| Solicitors for the First Respondent: | Ms Ward of Sparke Helmore |
| Second Respondent | Submitting appearance |
ORDERS
The application for reinstatement filed on 23 July 2018 be dismissed.
The application for review filed on 8 December 2017 be dismissed.
The First Applicant and the Second Applicant pay the First Respondent’s costs of and incidental to the proceedings fixed in the amount of $2,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
PEG 683 of 2017
| VEERPAL KAUR AND ANOTHER |
First Applicant
| GURJANT SINGH |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The first applicant and the second applicant are citizens of India. The first applicant was the applicant for a student (temporary) (class TU) visa. The second applicant applied for a dependent’s visa based upon his relationship with the first applicant.
On 11 May 2017 the Department corresponded with the applicant in relation to adverse information received by the Department in respect of the first applicant’s 10 March 2017 visa application. In particular, the Department indicated in its letter to the applicants dated 11 May 2017 that both the first applicant and the second applicant had been found guilty of theft and fraud (court book page 40).
In the 11 May 2017 letter to the applicants, reference was made to it being a requirement for the grant of a student (sub-class 500) visa that the applicant satisfied Public Interest Criterion (PIC) 4020 contained in schedule 4 to the Migration Regulations 1994 (Cth)(the Regulations). PIC 4020 provides as follows:
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).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A) The applicant satisfies the Minister as to the applicant's identity.
(2B) The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(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: For the definition of bogus document , see subsection 5(1) of the Act.
It is noted by clause 4020(1) that it is a requirement of such criterion that there is no evidence before the Minister that the applicant had given, or caused to be given, to the Minister, a bogus document or information that was false or misleading in a material particular in relation to the application for a visa.
The first applicant today conceded that she had been convicted of stealing and gaining a benefit by fraud. At court book page 46 there appears a document entitled “National Police Certificate” dated 19 May 2017, which relevantly recorded that in the Perth Magistrates’ Court on 23 February 2017:
a)The first applicant was convicted of stealing and fined $750.
b)The first applicant was convicted of gaining a benefit by fraud and was fined $400.
That conviction predated the making of the application for the visa by the first applicant and the second applicant on 10 March 2017, and therefore ought to have been relevantly disclosed on the application for visa form. That was not done and, therefore, the first applicant and the second applicant had clearly provided misleading information in a material particular to the Department in relation to the application for the visa.
In those circumstances, the Minister could nevertheless waive the requirement that was imposed by clause 4020(1) if:
a)There were compelling circumstances that affected the interests of Australia; or
b)There were compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
At [1]-[8] of its reasons, the Administrative Appeals Tribunal (AAT) set out the relevant history of the refusal of the visa by the Department based upon the non-compliance with the provisions of clause 4020. It is noteworthy that the AAT also found that the applicants had not satisfied clause 500.211 in schedule 2 of the Regulations. Clause 500.211 relevantly provides as follows:
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
(b) if the application is made in Australia – the applicant is seeking to remain in Australia because the relevant educational institution requires the applicant to do so during the marking of the applicant’s postgraduate thesis;
(c) if the applicant is a Foreign Affairs student--the applicant has the support of the Foreign Minister for the grant of the visa;
(d) if the applicant is a Defence student--the applicant has the support of the Defence Minister for the grant of the visa.
It was relevantly found that because the first applicant had not met clause 500.211 of Schedule 2 to the Regulations, the second applicant, in his capacity as a dependent, did not satisfy clause 500.311 to Schedule 2 of the Regulations.
At [9] of its reasons, the AAT recorded that the first applicant appeared before the Tribunal on 18 October 2017 to give evidence and present arguments. The applicants were represented in the Tribunal proceedings by a registered migration agent who appeared by telephone.
At [13] of its reasons, the AAT recorded that the applicant advised the Tribunal at the hearing:
a. Enrolment had been secured and that the applicant is currently undertaking an Advanced Diploma of Business with Skills Australia Institute, Western Australia College International, which commenced on 24 July 2017 and is due to complete on 19 July 2018;
b. Casual work of less than 20 hours per week is currently being undertaken as a cleaner and that the spouse of the applicant was performing the same work;
c. No other family, apart from the applicant's spouse currently reside in Australia;
d. The purpose of study is to gain skills to support an intended food merchandising and promotion business in India, associated with the family agricultural farming business, with a crop sales value of $40,000;
e. There is an intention to continue study beyond the current course and approval has already been given by the provider to undertake Diplomas in Leadership and Management and Advanced Leadership and Management until 2021;
f. Following consultations with a medical practitioner in May 2017, the applicant's medical practitioner had given a medical clearance in July and the applicant was no longer taking medication;
At [16] of its reasons, it was noted that the applicant confirmed to the AAT that the correspondence sent by the Department to her dated 11 May 2017 had been read and understood insofar as the requirements of PIC 4020 were concerned.
At [17-21] of its reasons, the Tribunal dealt with the applicant’s response, it being pointed out to the first applicant that she had provided misleading information to the Department when she filled out her application for a visa.
At [21-28] of its reasons, the AAT further dealt with and considered responses from the first applicant concerning the circumstances of her allegedly having incorrectly filled out the visa application. It noted that the first applicant had stated that she and her partner had been “badly jinxed” at the relevant time, and that she had suffered from fear and alcohol problems.
It was noted that the migration agent, one Mr Kahn, advised the Tribunal that he had no knowledge of matters relating to the applicant’s criminal conviction, and that he had declined to make any further comment in relation to matters relating to PIC 4020.
At [29] – [39] of its reasons, the Tribunal considered in detail the question as to whether the requirements of PIC 4020 had been met or not, and it relevantly set out the tests for determining that question. It considered that in all of the circumstances, the decision of the delegate under review ought to be affirmed.
At [40] – [43] inclusive of its reasons, the Tribunal, after having dealt with issues relating to whether the clause 4020 (1) or (2) conditions ought to be waived, found that it was not satisfied that the requirements should be waived.
At [44] – [55] of its reasons, the Tribunal undertook a detailed analysis as to why there were no compelling reasons to waive the relevant 4020 requirements.
The Tribunal arrived at its decisions in a careful and considered manner.
The conclusions on which the Tribunal reached its decision were open on the evidence before it. As Thawley J said in CED15 v Minister for Immigration and Border Protection [2018] FCA 451 at [21-24] inclusive:
[21] In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal’s reasons, which provided:
69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant’s neighbourhood was murdered at that time, along with Tamils in other villages.
70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was “at the camp” however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant’s credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was “at the camp”.
[22] The appellant submitted that the “later” evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant’s cousin was a detail of less importance than the horrific murder of the family and the appellant’s fear of the army because of his being a witness.
[23] It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox.
[24] The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30].
It cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious enquiry about a critical fact, as was the subject of consideration by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ in Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 at [25-27] where it was said:
[25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.35 It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
[26] The first reason is that there was nothing on the record to indicate that any further inquiry by the tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
[27] No issue of procedural fairness otherwise arises. SZIAI was given an opportunity to comment upon the National Ameer’s letter and did so in the limited terms indicated. To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event. The National Ameer’s letter was by way of information that the tribunal considered would be a reason, or part of a reason, for affirming the decision under review. It discharged its obligation, pursuant to s 424A of the Migration Act, by giving SZIAI the opportunity to comment on that information. The letter did not raise a new issue in the sense that that term is used in s 425.
The decision was not legally unreasonable, or one lacking an evident and intelligible justification. [1]
[1] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76].
Further, it cannot be said that no other rational or logical decision-maker could not have made the same decision as did the Tribunal. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130]:
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
In all of the circumstances, the first respondent by Ms Ward, submitted that the applicant’s application in a case for reinstatement of the originating application for review, filed on 8 December 2017, should be dismissed, primarily on the ground that such originating application for review was without merit. The court agrees with such submission.
As illustrated above, the Tribunal carefully considered all of the matters before it. It found that there were no compelling reasons for waiver of the relevant clause 4020 conditions.
In all of the circumstances, therefore, the applicant’s application for reinstatement ought properly to be refused. The result of such order is that the originating application is also dismissed as being without merit.
And it is ordered accordingly.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Egan
Associate:
Date: 17 September 2019
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