Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 229

FEDERAL CIRCUIT COURT OF AUSTRALIA

Khan v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 229

File number(s):

SYG 1115 of 2016

Judgment of:

JUDGE STREET

Date of judgment:

23 February 2021

Catchwords:

MIGRATION – Administrative Appeals Tribunal – application for a Skilled (Residence) (Class VB) visa – whether the Tribunal ought to have delayed its decision to await the outcome of the applicant’s wife’s judicial review application – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), s 476

Migration Regulations 1994 (Cth), cls 885.224, 885.322

Number of paragraphs:

32

Date of last submission/s:

2 February 2021

Date of hearing:

2 February 2021

Place:

Sydney

Counsel for the Applicant:

In person

Solicitor for the First Respondent:

Ms J Xiao
Clayton Utz

ORDERS

SYG 1115 of 2016

BETWEEN:

MD GYIED HOSSAIN KHAN

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	23 FEBRUARY 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the first respondent’s costs fixed in the amount of $6,825.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 8 April 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Skilled (Residence) (Class VB) visa (“Skilled visa).

2. The applicant is a citizen of Bangladesh. On 29 June 2010, the applicant applied for the Skilled visa as the member of a family unit of his wife seeking to satisfy the primary criteria. The applicant’s newborn daughter was later included in the application following notification of her birth.

3. On 15 November 2011, the applicant’s migration agent informed the Minister’s Department that the applicant had provided wrong information about his identity at the time of the application.

4. By letter dated 6 June 2013, the applicant’s wife, being the primary applicant, was invited to comment on the provision of false or misleading information concerning the applicant’s identity in their combined application. Further, the applicant provided a statutory declaration admitting the provision of a bogus document without his wife’s knowledge and seeking to correct what he described as a mistake.

5. On 6 August 2013, the combined application was ultimately refused and the Delegate found that the applicant’s wife did not satisfy the Public Interest Criterion (“PIC”) 4020 as required by cl 885.224 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) and therefore did not meet the requirements of the Skilled visa. It followed that the applicant and his daughter were also ineligible for the grant of the Skilled visa.

6. The applicant and his family sought a review of the Delegate’s decision in the Migration Review Tribunal, as it then was.

7. On 12 December 2013, the Tribunal affirmed the decision not to grant the applicant a Skilled visa but otherwise remitted the matter with a direction that the PIC 4020 was met in respect of the applicant’s wife and daughter, being the first Tribunal’s decision.

8. The applicant applied to this Court for judicial review in respect of the first Tribunal’s decision and, on 27 June 2014, the matter was ultimately remitted by consent orders for reconsideration by the Tribunal.

9. On 6 August 2015, the applicant appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter and his representative. The applicant advanced the submission that the outcome should await the review of his wife’s proceedings.

10. The Tribunal in its reasons identified the background to the application for review.

11. The Tribunal referred to the requirements of PIC 4020 and the applicant’s desire to stay in Australia.

12. The applicant gave evidence that he departed Australia in October 2009 and returned to Bangladesh. The applicant was asked by the Tribunal how he was able to obtain a passport in Bangladesh with a different name and date of birth. The Tribunal identified that the passport had an entirely different date of birth. The applicant agreed it was a different date of birth and a different name but that there was a mistake in the name because of the pronunciation. The Tribunal explored with the applicant that it appeared more than a mere mistake and had been done deliberately. The applicant contended it was not a deliberate mistake. The Tribunal raised with the applicant that he had entered Australia under a false name and then re-entered Australia on a third identity.

13. The Tribunal referred to the applicant’s evidence. The Tribunal summarised the applicant’s submissions. The Tribunal referred to the relevant law.

14. The Tribunal then turned to the question of whether or not there had been provided a bogus document that is false and misleading and a material particular. The Tribunal referred to the applicant acknowledging he had provided bogus documents to the Department in relation to his identity and apologised for it. The applicant expressly referred to being afraid the Department, if they knew his true identity, would not issue him with a student visa and he would not be able to join his wife.

15. The Tribunal found that the provision of the false documents was done with intent. The Tribunal found that the applicant’s conduct was purposeful and had the necessary element of deception so as to attract the operation of PIC 4020. The Tribunal acknowledged that the applicant provided information about his identity, however, as explained, the requirement of PIC 4020 applies even if the Minister only became aware of the information or bogus document through the applicant.         

16. The Tribunal found that the passport was given or caused to be given as part of the applicant’s Subclass 572 and 885 visa applications. The Tribunal found that there is evidence that the applicant has given the Minister a bogus document in relation to the current visa application and in relation to a visa held in the 12 months before.

17. The Tribunal found that the applicant does not meet the cl 4020(1).

18. The Tribunal then turned to the issue of whether there are compelling circumstances that justify the granting of the Skilled visa. The Tribunal found that it was not satisfied that the requirements should be waived. The Tribunal identified the applicant’s circumstances individually and was not satisfied of compelling circumstances that affect the interests of Australia or that there is 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 granting of the Skilled visa.

19. The Tribunal turned to the issue of the applicant’s identity. The Tribunal found that the applicant did not satisfy the requirements of PIC 4020 for the purpose of cl 885.322(a) of the Regulations and turned to whether the applicant met the criteria at the time of decision. The Tribunal found that the applicant was not the member of a family unit who satisfies the primary criteria.

20. The Tribunal found that the applicant did not meet the requirements for the grant of the Skilled visa. Accordingly, the Tribunal affirmed the decision under review.

    BEFORE THE COURT

21. These proceedings were commenced on 5 May 2016.

22. On 2 June 2016, a Judge of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

23. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed that he understood the nature of the hearing as explained by the Court.

24. The applicant orally submitted that he had been truthful by reason of identifying that he provided the fraudulent document and that in those circumstances the visa should not have been cancelled. The identification of the fraudulent document by the applicant is not a matter of itself by reason of which the applicant was entitled to the grant of the visa or a finding that there were compelling circumstances. The Tribunal’s adverse finding that the applicant provided a bogus document was clearly open for the reasons given by the Tribunal and cannot be said to lack an evidence and intelligible justification. Further, given the provision of the bogus document, it was open to the Tribunal to find that there were not compelling reasons for waiving the relevant criteria and for affirming the decision under review. The applicant’s submissions, in substance, invited the Court to engage in impermissible merits review.

25. The applicant also made oral submissions that referred to his children and his circumstances in Australia. The Court has no power to review the matter on compassionate or discretionary grounds.

26. Nothing submitted by the applicant orally identified any jurisdictional error.

    GROUNDS IN THE APPLICATION

27. The grounds in the application are as follows:

    1. The Tribunal's decision not to delay its decision to await the outcome of the Applicant's wife's judicial review application was affected by jurisdictional error in that it did not understand the significance of an important issue in the case.

    Particulars

    The Tribunal took the view that it may have considered awaiting the outcome of the wife's judicial review application if the question of whether the Applicant was a family member of a person who held a subclass 885 visa was the only criterion to be determined. The Tribunal failed to appreciate that whether or not the Applicant's wife and child would be permanent residents of Australia was relevant also to the question of whether PIC 4020 should be waived in respect of the Applicant.

28. It is apparent that the Tribunal expressly considered in its reasons the submission to await the outcome of the applicant’s wife’s application, as expressly identified in paragraphs 92 to 98 of the Tribunal’s reasons. The Tribunal considered it reasonable to determine the criteria at the time of decision. That was a logical and rational approach for the Tribunal to take and does not reflect a lack of an evident and intelligible justification. The decision of the Tribunal reflects a correct identification of the relevant criteria and a logical and rational decision.

29. The Tribunal was not required to await the outcome of the wife’s determination. The Tribunal was required to determine the criteria at the time of decision given the applicant’s failure to satisfy PIC 4020 and cl 885.322(a) of the Regulations. The criterion under cl 4020(1) was required to be determined at the time of decision and, as the Tribunal noted at paragraph 77 of its reasons, neither the wife’s application or the daughter had engaged the categories in cl 4020(4)(b) at the time of decision. Their circumstances were immaterial to the consideration of the waiver.

30. As the Tribunal noted at paragraphs 94 to 95 of its reasons, at the time of decision, the Skilled visa application of the applicant’s wife and daughter had already been finally determined under the Act. Whether the wife’s application might have succeeded in judicial review did not oblige the Tribunal to consider, contrary to the terms of PIC 4020, whether she might ultimately acquire citizenship. There was no legal unreasonableness in the Tribunal’s decision to proceed to make a determination and not to adjourn the matter or await the outcome of the applicant’s wife’s judicial review application. No jurisdictional error as alleged in ground 1 is made out.

31. Further, the Court accepts the first respondent’s submissions that the alleged error would not amount to a jurisdictional error and would be futile as the applicant’s wife ultimately failed to succeed in her review application.

32. No jurisdictional error is made out by the application. Accordingly, the application is dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated:       23 February 2021