Khan v Minister for Immigration, Citizenship and Multicultural Affairs - [2022] FedCFamC2G 675

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 675

File number(s): SYG 85 of 2018

Judgment of: JUDGE GIVEN

Date of judgment: 15 August 2022

Catchwords: MIGRATION – review of a decision of the Administrative Appeals Tribunal – adjournment application declined - PIC 4020 – whether compelling and compassionate circumstances – whether applicant denied opportunity to give evidence and present arguments – application dismissed

Legislation:
Administrative Decisions (Judicial Review) Act 1977 (Cth)

Migration Act 1958 (Cth) ss 5, 359AA, 360, 474, 476

Migration Regulations 1994 (Cth) cl 500.217, Public Interest Criterion 4020

Cases cited:
Minister for Immigration and Border Protection v Sandhu [2016] FCA 130

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1

Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553

NABEv Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499

Division: Division 2 General Federal Law

Number of paragraphs: 56

Date of hearing: 15 August 2022

The Applicant: In person

Solicitor for the Respondents: Mr E Taylor of Mills Oakley
ORDERS

SYG 85 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
WAQAS KHAN

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:

JUDGE GIVEN

DATE OF ORDER:

15 AUGUST 2022

THE COURT ORDERS THAT:
1.The application filed on 11 January 2018 is dismissed.
2.The applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,400.
3.Pursuant to r 17.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), Orders 2 and 3 above not be entered until the date of the publication of written reasons for judgment (revised from transcript) which, for the avoidance of doubt, and for the purposes of r 36.03 of the Federal Court Rules 2011 (Cth), will also be taken to be the date upon which the judgment was pronounced.

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).
EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)
JUDGE GIVEN:

By an application to show cause filed with the Court on 11 January 2018, the applicant seeks review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 12 December 2017 affirming a decision of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Khan v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 675
Case: [2022] FedCFamC2G 675
Decision Date

CaseChat Overview and Summary

In the matter of Khan v Minister for Immigration, Citizenship and Multicultural Affairs, the applicant, who had been refused a visa under the Migration Act 1958 (Cth), sought judicial review of the Tribunal’s decision. The Tribunal had affirmed the delegate’s decision to refuse the applicant a visa on the basis that he had provided a counterfeit document in support of his application, and that there were no compelling circumstances warranting a waiver of the policy criteria. The applicant contended that the Tribunal erred in finding that the document was counterfeit and that there were no compelling circumstances warranting a waiver of the policy criteria.

The primary legal issue before the Court was whether the Tribunal erred in finding that the Habib Bank letter was counterfeit and that there were no compelling circumstances warranting a waiver of the policy criteria. The Court had to consider whether the Tribunal’s findings were open to it on the evidence before it, and whether any error affected the outcome of the matter. The Court had to consider whether the Tribunal gave proper weight to the evidence and whether it took into account all relevant considerations.

The Court found that the Tribunal’s decision was not affected by any error. The Tribunal had correctly found that the Habib Bank letter was counterfeit, as it had been materially altered by a person who did not have the authority of Habib Bank to do so. The Tribunal had also correctly found that there were no compelling circumstances warranting a waiver of the policy criteria, as the applicant had failed to provide any evidence to support his contention that there were such circumstances. The Court found that the Tribunal had given proper weight to the evidence and had taken into account all relevant considerations. Accordingly, the Court dismissed the application for judicial review.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 12 December 2017, the Tribunal affirmed the decision under review (CB 153-159).The Tribunal’s decision Based on enquiries made with the Department and AHC, the Tribunal found the response from Habib Bank and the AHC relating to the first Habib Bank letter was accurately described in the delegate’s decision record (CB 154, [6]), and that the AHC’s response to its enquiries about the second Habib Bank letter “re-confirms” that the first Habib Bank letter was “fake” (CB 154-155, [7]). On the basis of the information raised with the applicant pursuant to s 359AA, the Tribunal found that the first Habib Bank letter was counterfeit and had been altered in a material way by a person who did not have the authority of Habib Bank to do so: see s 5(1) definition of “bogus document”, sub-section (b) (CB 157, [25]). Relying on the AHC’s advice that the second Habib Bank letter was also “non-genuine”, the Tribunal did not accept the applicant’s explanation that the first Habib Bank letter contained false information due to a mistake on the part of Habib Bank. The Tribunal found there was an element of fraud or deception in relation to both letters (CB 157, [26]). The Tribunal found therefore that the applicant had given a bogus document in relation to the visa application, being the first Habib Bank letter, and that he did not satisfy PIC 4020(1) (CB 157, [27]). The Tribunal (at CB 158, [34]) noted that the applicant failed to provide any response to its question about whether there were circumstances that would warrant a waiver. On the basis of the evidence before it, the Tribunal was not satisfied that there were: (a)compelling circumstances that affected the interests of Australia; or (b)compelling or compassionate circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand city;which justified the grant of the visa. Accordingly, the Tribunal found that neither of PIC 4020(1) or PIC 4020(2) should be waived (CB 158-159, [35]-[36]).APPLICATION TO THIS COURT On 11 January 2018 the applicant commenced these proceedings by filing an application for an order to show cause pursuant to s 476 of the Act. On 12 February 2018, a Registrar of this Court made orders by consent which provided, inter alia, for the applicant to file and serve an amended application by 4 June 2018, which did not occur. Nor did the applicant file written submissions 14 days before the final hearing as required. On 3 May 2022, this matter was brought into my docket and listed for hearing on 20 July 2022. The listing notice was sent to the parties via email on that date, including to the applicant at the email address for service which was provided in the originating application. On 23 May 2022, the applicant wrote the Court seeking an adjournment of that hearing on the basis that he was overseas and was only due to return on 19 July 2022, which meant that he would land either on or shortly after the date which was listed for the hearing. In the circumstances, the Minister consented to a brief adjournment and accordingly, the matter was relisted before me today. The applicant indicated his consent to this hearing date in an email dated 22 June 2022, which was sent to my Associate with the first respondent’s solicitor copied, and that email said:I am agreed on the new hearing date on 15 August 2022.

Ratio Decidendi

Legal Principle Established

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File number(s):	SYG 85 of 2018
Judgment of:	JUDGE GIVEN
Date of judgment:	15 August 2022
Catchwords:	MIGRATION – review of a decision of the Administrative Appeals Tribunal – adjournment application declined - PIC 4020 – whether compelling and compassionate circumstances – whether applicant denied opportunity to give evidence and present arguments – application dismissed
Legislation:	Administrative Decisions (Judicial Review) Act 1977 (Cth) Migration Act 1958 (Cth) ss 5, 359AA, 360, 474, 476 Migration Regulations 1994 (Cth) cl 500.217, Public Interest Criterion 4020
Cases cited:	Minister for Immigration and Border Protection v Sandhu [2016] FCA 130 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 NABEv Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZMDB v Minister for Immigration and Citizenship (2008) 105 ALD 499
Division:	Division 2 General Federal Law
Number of paragraphs:	56
Date of hearing:	15 August 2022
The Applicant:	In person
Solicitor for the Respondents:	Mr E Taylor of Mills Oakley

SYG 85 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	WAQAS KHAN Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

ORDER MADE BY:	JUDGE GIVEN
DATE OF ORDER:	15 AUGUST 2022