Khan v Minister for Immigration and Citizenship
[2025] FedCFamC2G 1187
•29 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration and Citizenship [2025] FedCFamC2G 1187
File number(s): MLG 3016 of 2020 Judgment of: JUDGE CORBETT Date of judgment: 29 July 2025 Catchwords: MIGRATION – Skilled Regional Sponsored (Provisional) (Subclass 489) visa - Application for judicial review – Whether the Tribunal applied the wrong test – Whether the Tribunal failed to identify compassionate or compelling circumstances – Application dismissed. Legislation: Migration Act 1958 (Cth) ss 5(1), 65, 359AA
Migration Regulations 1994 (Cth) Sch 2, 4, cls 489.211, 489.211(3), 4020, 4020(1), 4020(2), 4020(4)(a), 4020(4)(b)
Cases cited: Babicci vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1645
Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285
Bi v Minister for Immigration and Border Protection (2017) 327 FLR 1
Cody v J H Nelson Pty Ltd (1947) 74 CLR 629
Kandel v Minister for Immigration [2015] FCCA 2093
Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184
Kaur v Minister for Immigration and Border Protection [2018] FCCA 1614
Mala v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 556
Masson v Parsons [2019] HCA 21
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 500
Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham [2000] HCA 1
Sharma v Minister for Immigration and Border Protection [2016] FCCA 961
Singh v Minister for Immigration and Border Protection [2016] FCA 156
Singh v Minister for Immigration and Border Protection [2020] FCAFC 31
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297Vyas v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1226
Division: Division 2 General Federal Law Number of paragraphs: 78 Date of last submission/s: 12 June 2025 Date of hearing: 12 June 2025 Counsel for the Applicant: Mr N Mutton Solicitor for the Applicant AR Law Services Counsel for the Respondents Mr K Sypott Solicitor for the Respondents: HWL Ebsworth Lawyers ORDERS
MLG 3016 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUHAMMAD YUSUF KHAN
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CORBETT
DATE OF ORDER:
29 JULY 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’;
2.The name of the second respondent is amended to ‘Administrative Review Tribunal’;
3.The amended application for judicial review filed 14 May 2025 be dismissed; and
4.The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CORBETT
The applicant seeks judicial review of a decision of the second respondent (Tribunal) made on 23 July 2020. The Tribunal affirmed the decision of a delegate of the first respondent (Minister) to refuse to grant the applicant a Skilled Regional Sponsored (Provisional) (Subclass 489) visa (visa).
Reference in these reasons to ‘CB’ pages are references to the Court Book that was tendered and admitted as evidence at the hearing before this Court and designated exhibit ‘R1’.
BACKGROUND
The applicant is a citizen of Pakistan (CB 2). He first arrived in Australia on 24 July 2011 on a Student (Class TU) (Subclass 572) visa (CB 114, 244).
On 25 January 2018, the applicant applied for the visa and retained a registered migration agent to act on his behalf (CB 1-16). His former wife was listed as a dependent spouse and secondary applicant.
On 6 June 2018, the applicant received a request for more information from the Department of Home Affairs via his migration agent (CB 83-5). This request was for personal particulars for character assessment, Police clearance certificates, evidence of employment and immigration health examinations (CB 87). On 3 July 2018, the applicant provided two Police clearance certificates from Pakistan dated 23 June 2018 (CB 106-7).
On 19 September 2018, the Department of Home Affairs received email correspondence from the applicant’s agent withdrawing the applicant’s former wife from his application due to ‘recent relationship issues’ (CB 146-7).
On 19 November 2018, the applicant’s migration agent ceased to act on behalf of the applicant (CB 168).
On 26 May 2019, the applicant remarried. He submitted a notification of changes in circumstances and Form 1436, requesting that his new wife be added to his visa application (CB 179-192).
On 7 June 2019, the applicant was sent an invitation to comment on unfavourable information regarding bogus documents within the meaning of s 5(1) of the Migration Act 1958 (Cth) (Act). In that letter, the Minister informed the then applicants that it is a requirement for the grant of a visa that the applicant satisfies the Public Interest Criterion (PIC) 4020 contained in cl 4020 of Sch 4 to the Migration Regulations 1994 (Cth) (Regulations). Clause 4020(1) of the Regulations requires that there is no evidence before the Minister that the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material related to the visa application. The applicant was advised that as there is evidence suggesting that he provided, or caused to be provided, a bogus document, he may fail to satisfy PIC 4020(1), which can result in refusal of the visa. The documents alleged to be bogus were two Police clearance certificates purportedly obtained from Pakistan (CB 197-200).
On 27 June 2019, the applicant responded and submitted a statutory declaration dated 25 June 2019 stating that his Police clearance certificate was obtained from Pakistan by his former wife’s friend and since separating from her on 17 September 2018, he is unable to contact that third party and verify the authenticity of the documents (CB 202). The applicant also provided an updated Police clearance certificate from West Zone, Karachi dated 19 June 2019 (CB 201).
On 16 August 2019, a delegate of the Minister refused to grant the applicant the visa (CB 206-9). The delegate was not satisfied that the visa criteria was met by the applicant, in particular cl 489.211 in Sch 2 of the Regulations. It is a requirement of cl 489.211 of the Regulations that PIC 4020 is satisfied.
The delegate concluded that the evidence that the applicant had provided, or caused to be provided, included a bogus document or false or misleading information in relation to the visa application. The delegate placed ‘little weight’ on the applicant’s statutory declaration as the applicant was ‘deemed responsible and held accountable for all evidence and documents submitted’ (CB 213). The delegate was not satisfied that the applicant met PIC 4020(1), and therefore cl 489.211(3) has not been met (CB 210-5).
On 18 August 2019, the applicant filed an application for review with the Tribunal to review the delegate’s decision (CB 216-7). The applicant submitted supporting documents including a statutory declaration from his sister, a character reference from his employer and a PAYG payment summary (CB 223-237).
On 1 July 2020, the applicant was invited to a hearing before the Tribunal to be held on 16 July 2020 (CB 238-241).
On 13 July 2020, the applicant’s reappointed agent provided an outline of written submissions (CB 245-260). The submissions contained a detailed critique of the delegate’s reasons and an explanation of why the applicant did in fact satisfy PIC 4020 and alternatively, why it should be waived by the Minister. Attached to the submissions were Tribunal decision records of various cases said to support the applicant’s application for the visa and in particular why there were compelling or compassionate reasons that ought to be considered by the decision-maker (CB 261-389).
On 16 July 2020, the applicant appeared before the Tribunal via telephone during the COVID-19 pandemic, assisted by his migration agent (CB 398 [5]).
On 24 July 2020, the applicant was notified that the Tribunal affirmed the delegate’s decision to refuse to grant the applicant the visa and provided written reasons to the applicant dated 23 July 2020 (Decision) (CB 395-409).
TRIBUNAL’S DECISION
In the Decision, the Tribunal considered the criteria for the visa set out in s 65 of the Act and Sch 2 of the Regulations. The Tribunal identified the requirements of cl 489.211, and that these requirements can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa (CB 398 [9]-[10]).
The Tribunal found that the applicant had a fair opportunity to give evidence and present arguments at the hearing (CB 398 [6]).
The Tribunal identified two main issues to be resolved. First, whether the applicant had given, or caused to be given, a bogus document, or information that is false or misleading in a material particular. Secondly, if the applicant is found to have provided such a document in breach of PIC 4020(1), whether there are compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the grant of the visa (CB 401 [27]).
At the hearing, the Tribunal put to the applicant under s 359AA of the Act, information contained in the Department file including the opinion of a Forensic Document Examiner dated 17 August 2018 that the ‘originating document is counterfeit or has been fraudulently altered’ (CB 401 [31]). After a brief adjournment to discuss with his agent, the applicant reiterated the information in his statutory declaration that his former wife had arranged the certificates through a third party whose identity was unknown (CB 402 [33]).
The Tribunal then referred to the definition of a ‘bogus document’ in s 5(1) of the Act (CB 402 [35]). In the Decision, the Tribunal found that there was reason to suspect that the Police clearance certificates were ‘bogus documents’ (CB 402 [36]). This view was based on the outcome of the Forensic Document Examiner’s report and the outcome of phone calls to the Police station in Pakistan from which the certificates were said to have been issued (CB 402 [37]).
The Tribunal noted that the applicant did not deny the documents were bogus but claimed he should not be held responsible for his former wife’s actions (CB 402 [38]).
The Tribunal found that for the requirements in cl 4020(1) and (2) to be satisfied, it is not necessary to show knowing complicity by the applicant, and that all that is necessary to be shown is that the information provided was purposefully false (CB 402 [39]).
The Tribunal found that the applicant had responsibility for all documents provided in support of his visa application (CB 403 [44]). By delegating the responsibility of gathering evidence and arranging for it to be submitted, the applicant implicitly authorised his wife to act as his agent and he is bound under the common law principles of agency (CB 403 [45]).
The Tribunal found that there was purposeful falsity, either on behalf of the applicant’s former wife or the anonymous agent she engaged (CB 403 [47]).
The Tribunal thus found the provision of bogus documents by the applicant a breach of PIC 4020 (CB 403 [49]).
The Tribunal then addressed whether there were compassionate or compelling circumstances that would entitle the Minister to waive the breach of cl 4020(1) and (2) of the Regulations. The Tribunal identified that it is a two-staged enquiry, and that the decision maker must consider:
(1)whether there are compelling circumstances within the meaning of cl 4020(4)(a) or compassionate or compelling circumstances within the meaning of cl 4020(4)(b), and if so,
(2)whether to exercise the discretion to waive the requirements of PIC 4020, having regard to those circumstances (CB 404 [51]).
The Tribunal used case law for guidance on how the phrases ‘compelling’ and ‘compassionate’ operate in the PIC 4020 context (CB 404 [51]). These included Singh v Minister for Immigration and Border Protection [2016] FCA 156 at [20] per North J, where the Court held that ‘compelling circumstances’ are limited to those which have a special or strong persuasive force, relying on earlier authorities that refer to circumstances ‘evoking interest, attention…in a powerfully irresistible way’, that ‘must be so powerful’ or force or drive the decision-maker ‘irresistibly’ to be satisfied (see Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1645 at [11], and on appeal in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285; Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 500 at [31]) (CB 404 [51]).
The Tribunal identified that the terms ‘compelling’ or ‘compassionate’ are not defined in the Act or Regulations (CB 404 [52]). Thus, the determination is one of subjective judgement and is a question of fact and degree (see Kandel v Minister for Immigration [2015] FCCA 2093 [32]). Furthermore, the circumstances must affect the interests of Australia, an Australian citizen, permanent resident or an eligible New Zealand citizen (CB 404 [53]).
The Tribunal also considered the Explanatory Statement to SLI No.13 of 2011 (Explanatory Statement), which introduced PIC 4020, and used it for guidance on the types of circumstances that may be compelling or compassionate. These may include family reasons (e.g. unexpected serious or fatal situations such as the incapacitation or death of a partner or child or another family unit member), the family members being left without financial or emotional support, and a parent in Australia being separated from their child (CB 405 [55]).
The Tribunal then relied on the decision of Vyas v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1226 (Vyas) per Judge Raphael as an example of a case where the then Federal Circuit Court found that there was no error by the Tribunal in finding that compelling and compassionate circumstances did not exist where the circumstances would simply be saddening (CB 405 [56]).
The Tribunal gave consideration to the statutory declaration provided by the applicant’s sister, an Australian citizen who lives in Melbourne with her husband and three children, a ten-year-old son and two daughters aged eight and four years old. The declaration was replicated in the decision and included evidence that:
My husband, our children and I are heavily reliant on him for lots of our family oriented and children’s welfare matters very frequently, as we require his personal assistance very regularly in the looking after of, and the taking care of, our three very young children who are quite mischievous to say the least. (CB 406 [59])
The Tribunal also considered the oral evidence of the applicant at the hearing, that he was very close with his nephew and nieces. In particular, he has developed a close bond with the youngest niece who would cling to him and cry, and her mother would need to make promises of taking her to a local hamburger restaurant (CB 406 [60]). The Tribunal found that the applicant was initially vague about how often he would visit his sister’s family, suggesting it was only occasionally. Further discussion prompted his response that prior to the COVID-19 lockdowns occurring at the time of the hearing, he visited 2-3 times a week on his way home from work (CB 406 [61]).
The Tribunal found that there was no evidence of grounds for waiver based on compelling circumstances that affect the interests of Australia (CB 407 [62]). The Tribunal then considered whether there were compassionate or compelling circumstances under cl 4020(4)(b) of the regulations.
The Tribunal accepted that the applicant is close with his sister who claims to rely on him, particularly in times of emergency, however also found that she is supported by her husband and family, including another younger brother who lives with the applicant (CB 407 [63]).
The Tribunal did not accept that it would have such a detrimental effect on the family as claimed (CB 407 [64]). While the nephew and nieces would be saddened, the Tribunal was not satisfied that the circumstances and impact of the applicant’s departure would amount to compassionate or compelling circumstances that affect the interests of an Australian citizen, including the applicant’s sister and her family (CB 407 [65]).
The Tribunal affirmed the delegate’s decision not to grant the visa (CB 407 [66]-[67]).
PROCEEDINGS IN THIS COURT
On 17 August 2020, the applicant (but not his new wife) filed an application for judicial review in this Court. The application for judicial review was supported by an affidavit of the applicant’s lawyer affirmed on 14 August 2020 that annexed a copy of the Decision.
On 10 March 2021, a Registrar of this Court ordered that the applicant file and serve any amended application with proper particulars, any supplementary Court Book and written submissions 28 days before the date fixed for final hearing.
On 1 May 2025, the final hearing of the application for judicial review was fixed for final hearing before this Court in Melbourne in person on 12 June 2025.
On 14 May 2025, the applicant filed an amended application and outline of submissions. On 29 May 2025, the Minister prepared a Court Book and an outline of submissions.
In the amended application for judicial review, the applicant identified a single ground of review. That ground was, that the Tribunal erred by applying the wrong test, asking the wrong question and/or failing to complete its statutory task in finding that there were not compassionate circumstances. The following particulars were provided:
Particulars
a. One of the issues before the Tribunal was whether to waive the requirements of PIC 4020(1) and (2) on the basis that there were compelling or compassionate circumstances affecting the interests of an Australian citizen that justified granting the visa, pursuant to PIC 4020(4)(b).
b. Consideration of waiver involved a two-stage inquiry, the first of which was to determine whether there were ‘compelling’ or ‘compassionate’ circumstances affecting the interests of an Australian citizen or other relevant person.
c. In finding that there were not compassionate circumstances, the Tribunal erred in:
a. determining the meaning of ‘compassionate’ other than by reference to the ordinary meaning of the word;
b. further and alternatively, wrongly taking into account the decision in Vyas v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1226 in determining what constituted compassionate circumstances.
At the hearing before this Court on 12 June 2025, Mr Mutton of counsel appeared for the applicant. Mr Sypott of counsel appeared for the Minister.
APPLICANT’S SUBMISSIONS
The applicant filed a written outline of submissions dated 14 May 2025 and a list of authorities.
Counsel for the applicant accepted that the Tribunal correctly identified the issues to be resolved by the Tribunal on the application for review. There was also no dispute that the applicant provided (perhaps unwittingly) a bogus document to the Minister in support of his application for the visa. Therefore, the issue to be determined was whether there were compelling or compassionate circumstances affecting the interests of an Australian citizen or other relevant person so as to engage the discretion to waive the requirements of PIC 4020(1)(a), (b) or (2) of the Regulations.
In addressing the first stage, the applicant submitted that as the Act and Regulations required the Tribunal to give the word ‘compassionate’ it’s plain and ordinary meaning, citing Cody v J H Nelson Pty Ltd (1947) 74 CLR 629, 647-8 per Dixon J and Masson v Parsons [2019] HCA 21 [26] per Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ.
The plain and ordinary meaning of the word meant that the threshold for establishing compassionate circumstances is low, with circumstances that give rise to feelings of sorrow, pity, or sympathy being sufficient. The Tribunal did not refer to or apply the ordinary meaning of the word, did not refer to any authorities on the definition and did not use words from the dictionary definition that might indicate that it applied the correct test (such as ‘sympathy’, ‘sorrow’, ‘pity’ or ‘concern’). Counsel for the applicant cited Judge Baird in Kaur v Minister for Immigrationand Border Protection [2018] FCCA 1614 at [24] (Kaur 2018) where her Honour relied on the Macquarie Dictionary definition of ‘compassionate’, which is a feeling of ‘sorrow, or pity for the sufferings or misfortune of another; sympathy’.
It was submitted that the Tribunal erred by determining the meaning of compassionate circumstances by reference to examples, rather than the ordinary meaning. It was thus submitted that the Tribunal applied the wrong test and/or failed to perform the statutory review task required under s 348 of the Act (See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [41] per Gaudron J and at [82] per McHugh, Gummow and Hayne JJ). One example of this error was identified in paragraph [51] of the Decision (CB 404) by the Tribunal referring to the case of Singh v Minister for Border Protection [2016] FCA 156 at [23]–[24] where the Court consider the meaning of the word ‘compelling’, and not the word ‘compassionate’.
Mr Mutton submitted that, in the alternative, even if the Tribunal considered the ordinary meaning, it erred in being guided by the decision of Vyas. The Court in Vyas did not consider whether the Tribunal erred in its assessment of the effect on the applicants’ family members. That case does not establish which types of circumstances are “compassionate” for the purpose of the discretion.
Further, the decision in Vyas was prior to the decision of the Full Court of the Federal Court in Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 (Kaur) where the Court held that PIC 4020 involves a two-stage test (Kaur at [26] per Dowsett, Pagone and Burley JJ). In Vyas, the Tribunal conflated the two stages and therefore it should not be relied on as a sound example. Consequently, it is unclear from that case whether the circumstances in that case were not ‘compassionate’ or were indeed ‘compassionate’ but not sufficient to justify the granting of the visa on discretionary grounds. The Tribunal erred in referring to and relying on Vyas as a relevant example and instead should have found that there were ‘compassionate’ circumstances that affected an Australian citizen or citizens and should have exercised the Tribunal’s discretion to waive cl 4020(1) and to grant the visa.
MINISTER’S SUBMISSIONS
Counsel for the Minister relied on the outline of written submissions filed with the Court on 29 May 2025 and a list of authorities dated 3 June 2025. In the outline of submissions, the Minister identified two substantive arguments raised by the applicant in the amended application for judicial review.
In relation to argument one, the Minister conceded that in the Decision, the Tribunal made no reference to the ordinary meaning of the word ‘compassionate’ or to defining that meaning using a dictionary or case law. However, the Tribunal did not err by failing to do so. The Tribunal is not bound to refer to curial statements or other resources when construing statutory instruments. Indeed, the courts have cautioned against using judicial language in substitution to the plain meaning of the words used in a statute (Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 at [10] per Thawley J).
Counsel for the Minister referred to Bi v Minister for Immigration and Border Protection (2017) 327 FLR 1 (Bi), where a similar argument to the applicant’s was raised regarding the meaning of ‘compelling circumstances’ under cl 4020(4). Judge Riley rejected the submission in that case.
In that case, her Honour held that it should be accepted that the Tribunal understood what it meant when it referred to the word ‘compelling’, unless it could be demonstrated that it did not (Bi at [16], [19], [21]-[22]). The Tribunal was not required to spell out its understanding of ordinary English words. Her Honour also considered MZYPZ v Minister for Immigration and Citizenship [2012] FCA 478 at [10] per Bromberg J as to the relevant test to be applied by the Tribunal. Therefore, the appropriate inquiry by this Court is whether the Tribunal’s reasons disclose that it proceeded on an incorrect understanding of the law. It was submitted that no such misunderstanding is present in the Decision.
In oral submissions, counsel for the Minister noted that Bi concerned ‘compelling circumstances’, and this case involved the Tribunal considering ‘compassionate circumstances’ but that was not enough to distinguish the reasoning used in Bi from the reasoning in the Decision. The reasoning of the Tribunal in the Decision does not suggest that the Tribunal ‘determined the meaning of compassionate circumstances solely by reference to examples’. The examples referred to by the Tribunal were simply an aid to establish compassionate circumstances. Further, it was submitted that there is no authority for the applicant’s submission that the meaning of ‘compassionate’ sets a low threshold of satisfaction.
In relation to reliance on Vyas, counsel for the Minister submitted that the reasoning in that case was not inconsistent with the Decision and there was no error by the Tribunal when referring to it. The reasoning in the Decision did not suggest that the Tribunal limited compelling or compassionate circumstances to those comparable to the facts in Vyas. Instead, the Tribunal made its own analysis of the circumstances relied on by the applicant and was not satisfied that there were compassionate or compelling circumstances that affected the interests of an Australian citizen (CB 407 [63]–[65]). Therefore, the Tribunal did not need to go onto the second stage and exercise its discretion.
The Minister submitted that the Tribunal in Vyas did not conflate the two stages and that it is clear from the excerpt of its reasons that its focus was on the first step (whether there were compassionate or compelling circumstances that affected an Australian citizen or permanent resident).
Counsel for the Minister emphasised that the role of this Court is to consider the reasoning in the Decision as a whole. He also submitted that the ground of review identified in the amended application and the particulars do not disclose jurisdictional error by the Tribunal, and therefore no issue of materiality arises. The amended application should be dismissed with costs.
CONSIDERATION
In this case, the Tribunal identified that it was a requirement to obtain the visa that the applicant satisfy cl 489.211 of the Regulations, which in turn required the applicant to satisfy PIC 4020 of the Regulations. PIC 4020(1) required the Minister to be satisfied that the applicant had not given the Minister a bogus document or false and misleading information when applying for the visa. The applicant did not meet this requirement.
Having failed that requirement, PIC 4020(4) of the Regulations provides that:
(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.
In Kaur, the Court identified the test to be applied when considering cl 4020(4) of the Regulations. At paragraph [24], the Court said:
[24] Fourthly, PIC4020(4) sets up a two-staged inquiry. It obliges the decision-maker first to be satisfied that there are “compelling circumstances”. Only then may the decision-maker go on to consider those circumstances in the application of his or her discretion. The appellants’ argument conflates these inquiries. They submit that upon the involvement of any child in a visa application to which PIC4020 applies, the existence of the Convention comes into consideration as a compelling circumstance warranting the balancing exercise of the considerations involved. In our view, that does not represent a correct interpretation of the regulation. PIC4020(4)(a) imposes a filter, whereby the decision-maker must consider that there exist “compelling” (that is, “forceful”; Paduano v Minister for Immigration and Multicultural andIndigenous Affairs (2005) 143 FCR 204 at [32]-[37] per Crennan J) circumstances. In the present case, the Tribunal applied that filter at [82] to reject the appellants’ submissions. We see no error in that approach.
At paragraph [51] of the Decision, the Tribunal correctly identified that the inquiry to be made by it as decision maker was two-staged (CB 404). The Tribunal was not required (unlike in Kaur) to consider whether there were ‘compelling circumstances’ that affected the interests of Australia under sub-cl 4020(4)(a), but it did recognise that it must consider and apply the words ‘compassionate or compelling’ for the purpose of sub-cl 4020(4)(b) (CB 404 [52]).
The Tribunal did not explain in its reasoning the construction given to the words ‘compassionate or compelling’, but did note that there was no definition of the words and therefore the Tribunal was required to engage in an active intellectual process of considering the applicant’s evidence and to give reasons for refusing to waive a breach of PIC 4020(1) (CB 404 [51] and [52] footnote 17).
The Tribunal also correctly noted that it is not sufficient for the purpose of waiver that there be ‘compassionate or compelling’ circumstances alone. The circumstances must affect the interests of an Australian citizen, permanent resident or eligible New Zealand Citizen (CB 404 [53]). In that regard, it correctly interpreted and applied Vyas (see footnote 18 of the Decision at CB 404). The Tribunal also noted in that footnote that the Court in Vyas used the Explanatory Memorandum to assist when considering the plain words of the waiver provision. In that regard, the Court and the Tribunal were not using the Explanatory Statement erroneous but as an aid to construction to the meaning to be given to the plain words used (see also CB 405 [55] footnote 21).
The Tribunal then considered the applicant’s circumstances disclosed by the evidence before it. In particular, the relationship the applicant had with his sister, her family unit and her three children should the applicant be returned to Iran. The Tribunal did not expressly explain why the claimed devastation of the sister and her family would ‘not have a detrimental effect’, nor did the Tribunal clearly explain why such devastation was not a ‘compassionate or compelling’ circumstance affecting a citizen of Australia within the meaning of cl 4020(4)(b) of the Regulations. However, when read as a whole, the conclusion reached by the Tribunal was that it was not satisfied on the evidence and the plain meaning of ‘compassionate and compelling circumstances’ that it should thereafter consider the exercise of the discretion (CB 407 [65]).
There is a lacuna in the reasoning of the Tribunal in the Decision in reaching the ultimate conclusion as to whether the first stage of the two-stage test in cl 4020(4) was satisfied, but there was no error by the Tribunal in applying the wrong test or by asking the wrong question. ‘Whilst it may have been preferrable that the Tribunal made this clear, such a deficiency in the expression of its reasons does not constitute jurisdictional error’ (see Minister for Immigration v SZNPG [2010] FCAFC 51 at [48] per Katzman J citing Re Minister for Immigration and Multicultural Affairs: Ex parte Durairajasingham [2000] HCA 1). At best, the applicant’s complaint is to the weight given by the Tribunal in reaching the state of satisfaction required to engage sub-cl 4020(4)(b). The weight to be given to the evidence is clearly in the domain of the Tribunal and not this Court (see Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297 at [5] per Kiefel, Nicholson and Downes JJ). The Tribunal did engage in an active intellectual process of considering the applicant’s evidence and giving reasons for failing to waive the applicant’s breach of PIC 4020(1).
Counsel for the applicant submitted that when giving meaning to the word ‘compassionate’, the Tribunal erred by casting the burden of satisfaction too high. It was submitted that the threshold for establishing compassionate circumstances is low (Kaur 2018 at [24] and Mala v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 556 at [21] per Judge Barnes). Regardless of the threshold, the Decision does not reflect that the Tribunal erred in giving the word ‘compassionate’ any meaning that was inconsistent with the plain and ordinary meaning of that word. The Tribunal was satisfied that the evidence of the applicant’s sister and the applicant’s own evidence was not sufficient to establish that cancellation of the visa would have such a detrimental effect to the family as claimed and whilst this would lead to sadness by the applicant’s departure, that did not amount to compassionate or compelling circumstances (CB 407 [64]). That was not a failure to apply the wrong test or the Tribunal asking the wrong question. It was also not conflating the words compassionate and compelling as occurred in Kaur 2018. The finding was open on the evidence and not a failure to complete the statutory task.
The Tribunal did not fall into error when considering the decision of Vyas. The decision in Vyas was relied on by the Tribunal for two propositions. First, that the Explanatory Statement could be used to assist in considering the plain words of the regulation (Vyas at [14]). That is what the Tribunal appears to have done (CB 405 [54]). Second, Vyas was used as an example of the application of the evidence in that case to the word ‘compassionate’ for the purpose of cl 4020(4) of the Regulations (Vyas at [18]), in particular the breakdown of Mr Vyas’s family unit should he be removed (CB 405 [56] at footnote 23). The Tribunal also referred to Sharma v Minister for Immigration and Border Protection [2016] FCCA 961 (Sharma) per Judge Dowdy as another example. This was not an erroneous application of the decision in Vyas or Sharma, but further evidence that the Tribunal engaged in the required active intellectual exercise of applying the evidence to the ordinary meaning of the words used. The Tribunal did not err by conflating the test to be applied when considering cl 4020(4) and did not ask the wrong question or misapply the applicable law by referring to Vyas.
Finally, when considering the Decision as a whole, the Court is reminded of the observation of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272 [30] that ‘…the reasons for decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’. Whilst the Tribunal could have explained the precise meaning to be given to the word “compassionate” there was no jurisdictional error by the Tribunal in the Decision by applying the wrong legal test or in consideration of the decision in Vyas. The amended application for judicial review is dismissed.
OTHER MATTERS
The Minister sought an order that the name of the first respondent be amended to ‘Minister for Immigration and Citizenship’, which is the current Ministerial title which changed on 13 May 2025.
As a consequence of the passage of the Administrative Review Tribunal (Consequential and Transitional Provisions (No 1) Act 2024 (Cth), the name of the second respondent should also be amended to the ‘Administrative Review Tribunal’.
COSTS
Costs should follow the event. The Minister sought the costs and disbursements of and incidental to the application for judicial review in the sum of $8,371.30, which is the scale amount for a contested application concluded at a final hearing provided for in Sch 2, Pt 2, Div 1 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
The sum claimed is fair and reasonable given the complexity of this case and will be ordered to be paid by the applicant.
ORDERS
The name of the first respondent is amended to ‘Minister for Immigration and Citizenship’.
The name of the second respondent is amended to ‘Administrative Review Tribunal’.
The amended application for judicial review filed 14 May 2025 be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the proceeding fixed in the sum of $8,371.30.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Corbett. Associate:
Dated: 29 July 2025
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