Khakpour v Minister for Immigration and Anor (No.3)

[2020] FCCA 1497

FEDERAL CIRCUIT COURT OF AUSTRALIA

KHAKPOUR v MINISTER FOR IMMIGRATION & ANOR (No.3) [2020] FCCA 1497

Catchwords:
MIGRATION – Cancellation of Visa due to provision of misleading information and bogus documentation – whether there were compelling or compassionate reasons for waiver of PIC 4020 criteria – no jurisdictional error established on the part of the Tribunal – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.57.

Migration Regulations 1994 (Cth), Sch. 2, cl. 820.226, Sch. 4, PIC

4020.

Cases cited:

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous

Affairs (2003) 236 FCR 593.

AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261

FCR 503.

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

Applicant: MOHAMMED ALI KHAKPOUR

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 796 of 2019

Judgment of: Judge Egan

Hearing dates: 19 March 2020, 6 May 2020, 28 May 2020

Date of Last Submission: 28 May 2020

Delivered at: Brisbane

Delivered on: 10 June 2020

REPRESENTATION

Counsel for the Applicant: Mr Boccabella

Solicitors for the Applicant: AJ Torbey & Associates

Solicitors for the First Respondent: Ms Allen, Solicitor of Sparke Helmore

Second Respondent: Submitting appearance save as to costs

ORDERS

1. The Further Amended Application for Review filed on 24 April 2020 be dismissed.

2. The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 796 of 2019

MOHAMMED ALI KHAKPOUR

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Iran who first arrived in Australia on 26 May 2009 as the holder of a Tourist Visa. The applicant was granted a further Tourist Visa on 19 October 2012.

2. On 28 November 2014, the applicant returned to Australia on a Temporary Work Skilled (Subclass 457) Visa.

3. On 13 July 2016, the applicant applied for a Partner (Temporary) (Class UK) Visa based upon his asserted relationship with his sponsor, who was a permanent Australian resident.

4. On 22 July 2016, the applicant’s temporary work visa was cancelled because he had provided a bogus document and information that was false and misleading in a material particular in relation to his temporary work visa application.

5. On 2 August 2017, the applicant was invited, pursuant to the provisions of s. 57 of the Migration Act 1958 (Cth) (‘the Act’), to comment upon certain information that would be the reason, or part of the reason, for the refusal of the visa application.

6. In submissions provided to the Department, the applicant’s migration agent conceded that false information had knowingly been provided by the applicant to the Department in support of the applicant’s temporary work visa application, and that he had also knowingly submitted a bogus document in respect of such application. It was submitted on behalf of the applicant, however, that because of the sponsor’s exemplary career, as well as the psychological hardship that the sponsor would suffer should the applicant be required to make another visa application offshore, there were compelling and compassionate reasons for waiving the relevant PIC 4020(1) criteria.

7. On 17 October 2016, a delegate to the Minister refused to grant the visa on the basis that cl. 820.226 to Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’) had not been met.

8. Clause 820.226 relevantly provided as follows:

   “820.226

   “The applicant satisfies public interest criteria 4020 and 4021.”

9. PIC 4020(1), (4) and (5) to Schedule 4 of the Regulations relevantly provided 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.

   …

   (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.”

10. On 3 November 2016, the applicant applied to the Administrative Appeals Tribunal (‘the Tribunal’) for a review of the delegate’s decision. On 2 August 2018, the applicant’s agent provided written submissions and supporting documentation to the Tribunal.

11. A hearing before the Tribunal took place on 18 September 2018, at which time the applicant and the sponsor appeared with the applicant’s migration agent.

12. On 12 August 2019, the Tribunal affirmed the decision of the delegate not to grant the visa.

Reasons of the Tribunal

1. It was recorded at [3] of the reasons of the Tribunal that, at the Tribunal hearing on 18 September 2018, oral evidence was given by both the applicant and the sponsor.

2. At [6] of its reasons, the Tribunal recorded that it had had regard to PIC 4020(1) to Schedule 4 of the Regulations.

3. At [11] of its reasons, the Tribunal recorded that in applying for the temporary work visa, the applicant had provided:

   ·“Answers about countries in which he had lived during the previous 10 years that omitted information about having lived in the United States between 2004 and 2006;

   ·A translation and copy of a degree certificate for a Bachelor of Computer Software Engineering from Islamic Azad University, completed 21 May 2003; and

   ·A translation and copy of transcripts for that degree for the academic years 1998, 1999, 2000, 2001, 2002 and 2003.”

4. At [12] of its reasons, subsequent to the applicant being notified that the Tribunal had received adverse information concerning the applicant’s visa application, the applicant’s agent:

   ·“Sought to clarify the times at which Mr Khakpour lived in the United States and asserted that Mr Khakpour had never held a green card; and

   ·Admitted that the degree certificates and transcripts were bogus documents.”

5. At [15] of its reasons, in the light of the applicant’s admissions, the Tribunal said:

   “[15] in the light of the applicant’s non-denials and admissions, I am satisfied that:

   ·Mr Khakpour has provided information that is false or misleading in a material particular, as defined in PIC 4020(5), in that the omission of information about his residence in the United States was false or misleading at the time it was given, and relevant to the criteria the Minister may consider when making a decision on the application, namely the satisfaction of background, eligibility and security checks; and

   ·Mr Khakpour has provided bogus documents within the meaning of s. 5(1), namely degree certificates and transcripts that purport to have been, but were not, issued in respect of Mr Khakpour and/or were counterfeit or had been altered by a person who did not have the authority to do so;

   in relation to the 457 visa application, being a visa he held in the 12 months before the partner visa application was made.”

6. At [16] of its reasons, the Tribunal recorded that the applicant did not meet the relevant PIC 4020(1) criteria.

7. At [17] – [28] inclusive, the Tribunal considered whether there were compelling reasons for waiver of the relevant PIC 4020 criteria. At [20] of its reasons, the Tribunal summarised the applicant’s submissions as follows:

   ·“There are compelling circumstances that affect the interests of Australia, in its science and research sector, should [sponsor’s name omitted] return to Iran. Australia would be deprived of her talent and expertise and would bear the costs of her further education, which were financially supported by the Australian government; and

   ·There are compelling compassionate circumstances affecting an Australian permanent resident, [sponsor’s name omitted], who has led an exemplary life in Australia and excelled in her further education, who would suffer psychological hardship and whose career would be adversely affected if the applicant were required to return to Iran.”

8. At [21] – [24] inclusive, the Tribunal set out the sponsor’s academic qualifications and aspirations in relation to the development of a prototype in the field of bone tissue engineering. [1]

   [1]        See articles at Court Book (‘CB’) pages 256 – 266 inclusive and pages 267 – 273 inclusive.

9. At [25] of its reasons, the Tribunal considered the applicant’s submission that the prospect of the sponsor’s separation from him, or of her being required to choose between her relationship with the applicant and her career, had caused the sponsor to suffer considerable psychological pain. It was claimed that the sponsor had suffered from sleeping problems and frequent crying. Reference was made to a medical certificate from one Dr. Oo dated 10 July 2018. That certificate provided as follows:

   “QUT Medical Centre

   Queensland University of Technology

   Medical Certificate

   10/07/2018

   THIS IS TO CERTIFY THAT

   Ms [sponsor’s name omitted] has been a regular patient of this surgery since 2014.

   I have been seeing [sponsor’s name omitted] frequently since 14^th November 2017.

   [Sponsor’s name omitted] has been experiencing significant anxiety symptoms with sleep disturbance. This is precipitated by his partner current application for partner’s visa.

   [Sponsor’s name omitted] has been experiencing frequent crying, sadness, inability to concentrate and switch off with altered sleep pattern. Her symptoms are severe enough to require management with medications and she is to get supportive counselling to assist her.

   Thank you.”

   The sponsor had said that she had been prescribed some medication for her treatment, but there was no documentary evidence of that before the Tribunal. It was recorded that the sponsor had not attended any counselling, and it was noted that there was no report from a psychologist before the Tribunal. It was recorded that little weight was given to the claims of the sponsor, because there was no supporting evidence of the sponsor’s condition which confirmed the symptoms complained of by her to Dr. Oo. 

10. At [26] of its reasons, it was noted by the Tribunal that apart from the claimed symptoms recorded by the GP, there was no other evidence put before the Tribunal relating to matters which might go to suggesting that there were compassionate or other compelling reasons for waiver of the PIC 4020 criteria. There were no children of the relationship between the sponsor and the applicant, and there was no claim that the sponsor was financially dependent upon the applicant. It was noted that the sponsor had far better career prospects than the applicant, and that she had managed her own affairs before the time at which it was claimed that the applicant and the sponsor had commenced a relationship.

11. At [27] and [28] of its reasons, the Tribunal analysed statements and references put before it going to the nature of the relationship between the applicant and the sponsor, but it held that such evidence did not support a conclusion that there were compelling circumstances that affected the interests of Australia, or compassionate or compelling circumstances that affected the interests of an Australian citizen which would justify the granting of the visa. It was found that the PIC 4020 criteria ought not to be waived.

Grounds for Review

1. At the hearing before this Court, the applicant relied upon the following grounds for review as set out in a Further Amended Application for Review filed on 24 April 2020:

   “1A. The AAT failed to properly apply and interpret paragraph 4020(4) of Schedule 4 to the Migration Regulations 1994.

   2. The AAT misunderstood and/or misapplied each of the relevant tests under subclause 4020(4)

   Particulars

   (a) The AAT did not appreciate that there are three separate tests to be applied in working out the application of subclause 4020(4), which are that the decision maker is :

   (i) satisfied that compelling circumstances that affect the interests of Australia justify the granting of the visa;

   (ii) satisfied that compassionate…circumstances that affect the interests of an Australian citizen…justify the granting of the visa;

   (iii) satisfied that compelling…circumstances that affect the interests of an Australian citizen…justify the granting of the visa;

   (b) Each separate test required full and separate treatment linked to the case as put by the visa applicant and his sponsor, the Australian citizen wife.

   (c) The AAT failed to apply those three separate tests or if it did, it misapplied, wrongly interpreted or misunderstood each of those tests;

   (d) As a result the AAT’s decision was infected with jurisdictional error.

   3. Further and/or in the alternative, the AAT through its consideration of subclass 4020(4) conflated the fact that there was a residual separate discretion to be exercised separate from determining its satisfaction about each of the separate matters in subclass 4020(4)(a) and (b). As a result there was a jurisdictional error.

   4. Further and/or in the alternative, the matters referred to in the previous two grounds can be characterised as the AAT asking itself the wrong question or questions;

   5. The AAT failed to conduct a proper review under ss 348, 349, 362 and generally under Part V of the Migration Act 1958 Cwth.

   Particulars

   (a) The AAT concluded in paragraph 24 of its reasons (CB 295) as follows:

   Further – and crucially – it was not her evidence that, should Mr Khakpour’s visa be refused, that she would necessarily leave Australia. Her evidence was that she honestly could not see herself returning to Iran and that there was nothing there for her.

   (b) This was a misunderstanding of the applicant’s case and a misunderstanding of the position of the applicant’s Australian citizen wife. Therefore it was a jurisdictional error;

   (c) Further and/or in the alternative, the AAT, overall, misunderstood the case as put by the applicant and his Australian citizen wife such that there was a failure to meet the requirement as set out in Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 namely:

   [65]The law requires that a decision-maker must give proper, genuine and realistic consideration to the merits of the case, including by the application of an active intellectual process.

   (d) The AAT did not properly identify what the circumstances were of the Australian citizen partner Dr Tavakoli in order to properly review whether there were compassionate circumstances affecting her interests;

   (e) In the circumstances of this case the AAT ought to have made inquiries of the Minister’s Department to identify what the expected processing times were for a subclass 309 partner provisional visa which could only be lodged by the applicant when he was outside Australia.”

2. The grounds for review each go to the question as to whether the Tribunal had correctly or incorrectly considered and applied the relevant PIC 4020 criteria.

3. The Court noted that for Grounds 1A and 2, the applicant relied upon each of the grounds as set out in Ground 5(a) – (e) inclusive of the Further Amended Application for Review, in support of the submission that the Tribunal had misunderstood or misapplied each of the relevant tests under PIC 4020(4). It was submitted that the Tribunal could not properly apply the test as to what constituted ‘compassionate circumstances that affected the interests of an Australian citizen’ unless it properly identified issues surrounding the probable time of separation of the parties during the making by the applicant of a visa application offshore. The applicant referred to the Tribunal member asking the applicant, during the course of the hearing, whether she would be able to manage a temporary separation. [2]

   [2]        Affidavit of Rebecca Woodrow filed on 7 February 2020 – see Annexure ‘RW-1’ – transcript at

   283.

4. It has long been accepted that decisions of administrative bodies are not required to make reference in their decisions to each and every piece of evidence which might have been placed before them. Nor should their reasons be scrutinised with an eye keenly attuned to error. The Full Court of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 per French, Sackville and Healy JJ said at [46] – [47]:

   “[46] It is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; 62 ALD 225 ; 180 ALR 1 at [87]–[97]) and a failure by the tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

   [47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

5. The Tribunal was criticised by the applicant for relying upon the sponsor’s evidence to the effect that she didn’t see herself in the situation of returning to Iran, whilst the applicant’s offshore visa application was being processed, as evidence of a lack of compelling circumstances affecting the interests of an Australian citizen justifying waiver of the criteria. There was no basis for such criticism. The Tribunal was entitled to have regard to the intentions of the sponsor when assessing whether the relevant criteria ought to be waived.

1. The use by the Tribunal member of the word ‘temporary’ was in the context of the member asking questions of the sponsor which went to the issue as to how the sponsor would be affected during any period when the applicant was offshore making another visa application. It was reasonable for the Tribunal member to have regard to what would be a temporary separation which, in such context, was not meant to be a reference to an unidentified short period of time, but rather a period of time which was not permanent. The meaning which was submitted by the applicant ought to have been attributed to the use of that word, namely as being a short period of time, was unjustified.

2. The Tribunal was required to review the delegate’s decision in an inquisitorial manner. The Tribunal found that there was insufficient evidence before it to justify a finding that the sponsor would suffer serious medical/psychological symptoms as a result of any temporary separation from the applicant whilst he was offshore making another visa application. In such circumstances, the length of time required for any such offshore visa application processing was not critical to the Tribunal’s considerations. The offshore processing time was a peripheral issue, the significance of which had been brought into focus because of the applicant’s own untruthfulness in the submission of an earlier visa application form. There was no other medical evidence before the Tribunal which went to any other issue – such as the ability of the sponsor to fall pregnant after a temporary period of separation from the applicant – which amounted to a compelling or compassionate reason for waiver of the criteria. 

3. Further, on the question of the length of processing time required for the processing of any offshore visa application, the applicant had been put on notice that if he provided misleading information or fraudulent documents to the Department in respect of a visa application, then processing delays could occur. [3] The fact that a two year exclusion period applied in the event of the provision of misleading or fraudulent information being provided was not a matter which ought to be inferred was not considered by the Tribunal as part of its deliberations. It was a subsidiary matter which was not a consideration which was central to an assessment as to whether or not there were compelling or compassionate reasons for waiver of the PIC 4020 criteria.

   [3]        CB page 52 – 53 inclusive – letter from Department to Applicant dated 14 July 2016.

4. In any event, nowhere in the submissions made to the Tribunal on behalf of the applicant – either pre-hearing or at the time of the hearing – was the question of processing delays in the making of visa applications offshore relevantly addressed in a clearly articulated way. That was not a live issue before the Tribunal. A Tribunal is only required to consider clearly articulated argument and claims which clearly emerged from the evidence. As was said by Collier, McKerracher and Banks-Smith JJ in AYY17 v Minister for Immigration and Border Protection & Anor (2018) 261 FCR 503 at [18]:

   “[18] It is common ground that nothing in the statutory constraints to be found within Pt 7AA of the Migration Act (as discussed, for example, in BMB16 v Minister for Immigration and Border Protection (2017) 253 FCR 448 per Dowsett, Besanko and Charlesworth JJ) affects the relevant existing case law on this topic, namely, the duty to consider claims and issues arising from material before it as that law applies to the Administrative Appeals Tribunal under Pt 5 of the Migration Act. In that regard, we note that:

   ·    The Tribunal review function requires it to consider all claims made by an applicant and its essential components or integers: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) per Allsop J (as the Chief Justice then was) (at [42]), with whom Spender J agreed.

   ·    The Tribunal is only required to consider such claims where they are either:

   (a)  the subject of substantial clearly articulated argument, relying on established facts; or

   (b)  clearly emerge from the materials: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) per Black CJ, French and Selway JJ (at [55] and [68]) and AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) per Barker J (at [67]).

   ·    These principles apply to the IAA regime: Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 per Kenny, Tracey and Griffiths JJ (at [79]) where their Honours said:

   … A body such as the IAA, which is conducting an inquisitorial review process in which there is a claim for protection under s 36(2)(a) of the [Migration] Act must not only consider and determine the case as articulated by the protection visa applicant, but also do so in relation to an unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body (see NABE at [58]-[61] per Black CJ, French and Selway JJ).

   (Emphasis added.)

   ·    As to whether a claim clearly emerges, the following principles were collected in AWT15 by Barker J (at [67]-[68]):

   (a)  such a finding is not to be made lightly (NABE at [68]);

   (b)  the fact that a claim might be said to arise from materials is not enough (NABE at [68]);

   (c)   to clearly emerge from the materials, the claim must be based on “established facts” (SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 (SZUTM) per Markovic J (at [37]-[38])). In SZUTM, Markovic J said:

   37 While the tribunal is not required to deal with claims which are not clearly set out and which do not clearly arise from the material before it, the tribunal is not limited to dealing with claims expressly articulated by an applicant. A claim not expressly advanced by an applicant will attract the review obligation of the tribunal when it is plain on the face of the material before it.

   38 Both the appellant and the Minister have made submissions on whether there is a requirement that there be a claim based on “established facts”. At [35], the primary judge found, relying on NABE and Dranichnikov that, as the threshold point the claim must “emerge clearly from the materials before the Tribunal and should arise from established facts”. I agree with the primary judge’s approach: the decision in NABE must be read in light of the principle set out in Dranichnikov.

   (d)  while there is no precise standard to determining whether an unarticulated claim has been “squarely raised” or “clearly emerges” from the materials “a court will be more willing to draw the line in favour of an unrepresented party”: Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR77 per Flick J (at [21]); and

   (e)   understanding whether a claim has clearly emerged from materials cannot be assessed in a vacuum. Consideration must be given to the way an applicant’s claims are presented over time.”

5. Because the time for offshore processing was not a live issue before the Tribunal, it cannot be said that the Tribunal, when so analysing the matters of relevance before it, failed to make an obvious inquiry 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. 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.”

6. The applicant did not satisfy the relevant PIC 4020 criteria. There was little supporting evidence before the Tribunal relating to the effect that any separation from the applicant would have upon the sponsor. The Tribunal carefully considered all of the evidence before it and, having weighed up all of such evidence, found against the applicant. It was open for the Tribunal to so find. The Tribunal appropriately undertook its review function. It did not err in the manner in which it did so.

7. The Tribunal clearly engaged upon a consideration of the applicant’s claims and found against the applicant. It has long been accepted that different minds might legitimately reach different conclusions. As was said by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:

   “[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions.  The complaint of illogicality or irrationality was said to lie in the process of reasoning.  But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

8. Neither could the decision be considered as legally unreasonable, or one lacking an evident and intelligible justification, as such respective concepts were considered by Hayne, Kiefel and Bell JJ in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [66] and [76] where it was said:

   “[66] This approach does not deny that there is an area within which a decision-maker has a genuinely free discretion.  That area resides within the bounds of legal reasonableness.  The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power.  Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be exercised for that of a decision-maker.  Accepting that the standard of reasonableness is not applied in this way does not, however, explain how it is to be applied and how it is to be tested.

   …

   [76] As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".  The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power.  Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at.  Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.”

9. The applicant has failed to establish jurisdictional error on the part of the Tribunal.

10. The Further Amended Application for Review is without merit and is dismissed.

11. The Court will hear the parties as to costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Egan

Associate:

Date: 10 June 2020