Khanum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1352
•18 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Khanum v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1352
File number(s): SYG 975 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 18 June 2021 Catchwords: MIGRATION – application for remedies in relation to decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Skilled (Residence) (Class VB) visa – whether Tribunal sufficiently disclosed certificate purportedly issued under s 375A of the Migration Act 1958 (Cth) – whether failure to sufficiently disclose certificate material to Tribunal’s decision – application dismissed Legislation: Federal Circuit Court of Australia Act 1999 (Cth) s 88G
Migration Act 1958 (Cth) ss 97, 375A, 476
Migration Regulations 1994 (Cth) reg 1.03, Sch 2, cls 886.223(1), 886.227, Sch 4, cl 4020
Cases cited: Hasnat v Minister for Immigration and Border Protection [2020] FCA 784
Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50
Singh v Minister for Immigration and Border Protection [2017] FCA 1443
Number of paragraphs: 28 Date of hearing: 4 June 2021 Place: Sydney First and Second Applicants: Appeared in person Third and Fourth Applicants: Appeared by their litigation guardian, the first applicant Solicitor for the First Respondent: Ms J Strugnell of Minter Ellison Lawyers ORDERS
SYG 975 of 2017 BETWEEN: AFROZA KHANUM
First Applicant
JAMAL ASHRAF
Second Applicant
LAIBA ASHRAF (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
18 JUNE 2021
THE COURT ORDERS THAT:
1.Pursuant to s 88G of the Federal Circuit Court of Australia Act 1999 (Cth), unless the Court otherwise orders, the documents identified as “Confidential Exhibit ZM-1” to the affidavit of Mr Zachary Newcombe Payne McCaughan affirmed on 26 May 2021 be kept confidential and not be disclosed to any person other than to the Court or to Court staff.
2.The application is dismissed.
3.The first and second applicants pay the first respondent’s costs set in the amount of $5,600.
REASONS FOR JUDGMENT
INTRODUCTION
The applicants apply for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant each of the applicants a Skilled (Residence) (Class VB) visa (Skilled visa).
BACKGROUND
The applicants are nationals of Bangladesh. The first applicant (applicant) and the second applicant are wife and husband; and the third and fourth applicants are their children.
On 25 June 2010 the applicant and the second and third applicants lodged an application for a Skilled visa. The applicant was the primary applicant, and the second and third applicants applied as members of the applicant’s family unit.
To have been entitled to a Skilled visa the applicant had to satisfy the requirements specified in subclass 886 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). Two requirements are relevant. The first is that specified in cl 886.223(1) of Schedule 2 to the Regulations, namely, that the “skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation”.
The second requirement is that specified by cl 886.227 of Schedule 2 to the Regulations, which required the applicant to satisfy Public Interest Criterion 4020 (PIC4020).[1] The expression “public interest criterion” is defined in reg 1.03 of the Regulations to mean a “criterion set out in a clause of Part 1 of Schedule 4” to the Regulations, and “a reference to a public interest criterion by number is a reference to the criterion set out in the clause so numbered in that Part”. PIC4020 is a public interest criterion referred to in Schedule 4 to the Regulations, and relevantly provides as follows:
[1] PIC4020 was introduced on 2 April 2011, being the commencement date of the Migration Amendment Regulations 2011 (no. 1) (SLI no 13 of 2011) (Cth). Subregulation 5.1 provides that Schedule 3 to those regulations amends the Regulations. Item 3 of Schedule 3 amended Schedule 4 to the Regulations by including, among other things, PIC4020. Subregulation 5(2) provides that the amendments made by Schedule 3 apply to applications made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958), before 2 April 2011.
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse the application;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1) (a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Regulation 1.03 of the Regulations defines “bogus document” as having the same meaning as in s 97 of the Act. Section 97 of the Act defines “bogus document” as follows:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
In the form of application for a Skilled visa the applicant stated that her nominated occupation was “cook”, and she had obtained a skills assessment from “TRA”, being Trades Recognition Australia.
By letter dated 10 August 2015 the Department of Immigration and Border Protection (Department) requested the applicant provide “evidence of your 900 hours work experience”, noting that the evidence the applicant is to provide “should include copies of all documentation submitted to the Trades Recognition Authority [sic] (TRA)”.[2]
[2] CB125
By email sent on 5 September 2015 the applicant’s agent provided the following documents:[3]
(a)a letter dated 31 August 2009 purportedly from a restaurant business (Restaurant) which represented the applicant had worked as a cook in the Restaurant since 1 June 2008 and that “she has achieved more than 900 hours of work experience as a cook”;[4]
(b)a purported application by the applicant to TRA in which she represented she had worked as a cook with the Restaurant from June 2008 to August 2009;[5] and
(c)a purported letter from TRA confirming the applicant’s application for a skills assessment was successful (TRA assessment).[6]
[3] CB134
[4] CB137
[5] CB154
[6] CB141
By letter dated 14 October 2015 the Department informed the applicant that it had received adverse information which suggested the TRA assessment was a bogus document.[7] On 10 November 2015 the applicant’s agent provided further documents to the Department, and asserted that the information the Department had received was false.
[7] CB159
On 7 December 2015 the delegate refused to grant the applicant a Skilled visa because the applicant had provided a bogus document, and therefore did not satisfy PIC4020, and the applicant did not apply for a waiver.[8]
[8] CB183
BEFORE THE TRIBUNAL
In support of her application for review of the delegate’s decision the applicant submitted a statutory declaration to the Tribunal.[9] The applicant stated she first arrived in Australia in September 2007 on a student visa; in 2008 she visited her husband and family in Bangladesh for about four weeks after which she returned to Australia where she continued with her studies; shortly after her return she discovered she was pregnant; although she contemplated returning to Bangladesh the applicant decided to remain in Australia because her husband was unemployed and she did not see a stable future for herself in Bangladesh; as her pregnancy developed the applicant began to feel unwell, resulting in her being admitted to hospital; after her release from hospital the applicant decided to make her heath a priority and was determined to keep her baby; the applicant continued her studies, but she became depressed, afraid, and extremely concerned for her baby’s future; and this led her to consider ways to secure a more permanent status in Australia.
[9] CB256
The applicant further stated that one day at school another student, whose name the applicant could not remember, told her “they” could offer the applicant a way to remain in Australia and obtain permanent residency. The student told the applicant that many people, particularly from Bangladesh, had used this method and successfully stayed in Australia on a permanent residency visa; and if the applicant paid the student $1,200 the student “would take care of the rest”. The applicant paid $1,200 to the student. The applicant then received documents purportedly from the Restaurant detailing the 900 hours of work placement she had “allegedly attended”, and she had received two executed statutory declarations confirming the applicant had completed such work.
The applicant also said she and her husband had built a life in Australia where they feel connected with its culture and values; the applicant and her husband have two daughters born in Australia; the applicant is currently employed at two aged-care facilities and works roughly six days a week; the second applicant currently works as a process worker; and the third applicant has been diagnosed with a particular condition that requires medication, and the applicant fears that if the applicants are required to return to Bangladesh the third applicant would struggle to obtain adequate care.
TRIBUNAL’S REASONS
The Tribunal was satisfied the TRA assessment was a bogus document, and that the applicant had given, or caused to have given to the Minister or an officer, a bogus document in relation to her application for a Skilled visa. The Tribunal therefore concluded the applicant did not meet PIC4020.
The Tribunal next referred to a certificate that had been given purportedly pursuant to s 375A of the Act (375A Certificate).[10] The Tribunal noted the applicant admitted she had given or had caused to have given to the Minister or an officer a bogus document and, therefore, she has admitted she does not satisfy PIC4020; and the applicant admitted to paying for false statements to obtain a positive skills assessment. The Tribunal was satisfied the documents covered by the 375A Certificate were not relevant to whether compliance with the requirements of PIC4020 should be waived, thus implying the documents were relevant to whether the applicant satisfied PIC4020.
[10] The 375A Certificate is at CB191
The Tribunal then considered whether there are any compelling circumstances that affect the interests of Australia, or whether there are any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that would justify the granting of the Skilled visa. The Tribunal first noted that the expressions “compelling circumstances” and “compassionate or compelling circumstances” are not defined, and further noted that to be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied;[11] and that the ordinary meaning of “compassionate” relates to feelings of sympathy, sorrow, pity, or concern for others.[12]
[11] CB315, [95] referring to Plaintiff M64-2015 v Minister for Immigration and Border Protection [2015] HCA 50, at [31]
[12] CB315, [95]
The Tribunal concluded it was not satisfied the requirements of PIC4020(1) and (2) should be waived.[13]
(a)The Tribunal accepted the applicant works part-time at two aged-care facilities; that care of the elderly is an issue for an aging population in Australia; and that it is in Australia’s interests to have successful businesses employing people providing services. The Tribunal, however, was not satisfied the employment of the applicant in the aged-care facilities, or the second applicant’s employment, are compelling circumstances that affect the interests of Australia that justify the granting of the Skilled visa.[14]
(b)The Tribunal accepted the third applicant suffers from a medical condition that requires her to take daily medication, that she requires regular monitoring, and that she will require more regular check-ups as she grows older. The Tribunal, however, did not accept that the applicants would be required to live with the applicant’s husband’s mother; and it was satisfied that medical treatment for the condition from which the third applicant suffers is available in Bangladesh.[15]
(c)The Tribunal was not satisfied that in this case Australia’s ratification of the Convention on the Rights of the Child is a compelling circumstance that affects the interests of Australia that justify the granting of the Skilled visa.[16]
(d)The Tribunal considered the evidence and submissions about the applicants, but none of them are Australian citizens, permanent residents or eligible New Zealand citizens.[17]
(e)The Tribunal accepted the applicant was a valued employee, and that it would be challenging for one of the aged-care facilities to find another cook with the applicant’s skills and experience, but it was not satisfied these constitute compassionate or compelling circumstances that justify the granting of the Skilled visa.[18]
[13] CB315, [96]
[14] CB315-316, [98]-[100]
[15] CB316, [101]-[105]
[16] CB316, [106]
[17] CB317, [109]
[18] CB317, [111]-[118]
GROUNDS OF APPLICATION
The application contains one ground of application: “Taken into consideration new evidence”. As stated, the ground is incoherent.
At the hearing I asked the applicant and the second applicant, who are not legally represented, whether they had any criticism of the Tribunal’s decision. The applicant said “no, not really”. I then directed the applicant’s attention to the ground stated in the application and asked whether she wished to say anything about it. The applicant said she did not have anything to say.
The Minister, however, did raise one issue, and that relates to the 375A Certificate. The 375A Certificate states that the disclosure of the documents it identifies “are documents bearing a national security classification and containing information subject to the secrecy provisions of a commonwealth [sic] Act”. The Minister accepts:[19]
(a)the 375A Certificate incorrectly states it covers documents identified as folios 148A, 162B, and 173 (the documents covered by the 375A Certificate are identified in an affidavit made by Mr McCaughan on 26 May 2021);
(b)in a letter dated 3 November 2016 (Letter) the Tribunal sent to the applicants’ representative in response to a freedom of information request, the Tribunal disclosed the existence of the 375A Certificate, but did not provide a copy of the 375A Certificate to the applicants’ representative or to the applicants;
(c)the Letter did not specify the reasons why disclosure of the documents it covered would be contrary to the public interest;[20] and
(d)the Tribunal did not form a view about the validity of the 375A Certificate.[21]
[19] First Respondent’s Written Outline of Submissions, [19]-[21]
[20] For the relevance of this see Singh v Minister for Immigration and Border Protection [2017] FCA 1443, at [102]
[21] For the relevance of this see Hasnat v Minister for Immigration and Border Protection [2020] FCA 784, at [61]
In those circumstances, the Minister accepts the Tribunal’s disclosure was insufficient to enable the applicants to make submissions about the validity of the 375A Certificate.[22] The Minister submits, however, that this insufficiency was not material to the Tribunal’s decision. First, the Minister submits the 375A Certificate is valid in relation to two of the documents it covers, these being folios 149B and 149A; and that is because the documents, if disclosed, would reveal Departmental investigations and the identities of persons; and their disclosure, therefore, would prejudice the interests of the Commonwealth.[23] Second, and in any event, documents covered by the 375A Certificate could not reasonably have been considered by the Tribunal to be relevant to whether there are compelling circumstances, or to whether there are compassionate or compelling circumstances, that would justify the granting of a Skilled visa.[24]
[22] First Respondent’s Written Outline of Submissions, [21]
[23] First Respondent’s Written Outline of Submissions, [22]
[24] First Respondent’s Written Outline of Submissions, [23]
The documents identified as folios 149B and 149A have been provided to the Court in a sealed envelope on the basis that the Minister seeks a suppression order in relation to those documents. The Minister submits a suppression order is necessary to prevent prejudice to the administration of justice or to the interests of the Commonwealth in relation to national security. I have inspected those documents; and I am satisfied that, if disclosed, they would reveal Departmental investigations and the identities of persons involved in those investigations. For that reason, I am satisfied it is necessary to make a suppression order under s 88G of the Federal Circuit Court of Australia Act 1999 (Cth) (FCC Act) because such order is necessary to prevent prejudice to the interests of the Commonwealth.
In any event, given the applicant’s acknowledgement she had provided a bogus document, the information contained in folios 149B and 149A could not reasonably have been considered by the Tribunal to be relevant to whether there are compelling circumstances, or to whether there are compassionate or compelling circumstances, that would justify the granting of a Skilled visa. For that reason, I am not satisfied that, had the Tribunal provided proper disclosure in relation to the 375A Certificate, that could realistically have resulted in a different decision.
The other documents covered by the 375A Certificate are in evidence,[25] and they are not the subject of any claim of privilege or confidentiality. As submitted by the Minister in her written submissions, folios 162A, 161B, 160B, and 159B are internal Departmental case notes. Folio 162A records communications with the applicant about her bridging visa. Folio 161B records information relevant to whether the applicant’s claim of working 900 hours is not genuine. Folio 161B also refers to an allegation that the second applicant had previously used a different identity, although the name has been redacted. Folio 160B records “Draft of NJ Letter checked”, and it identifies documents which, I infer, the Department received. Folio 159B appears to identify matters that are pending in relation to the applicants’ application for a Skilled visa. Folios 148B and 148A records that evidence provided satisfied the 900 hours work requirement.
[25] Affidavit of Z N P McCaughan, annexure ZM-1
I accept the Minister’s submission that none of these documents could reasonably have been considered by the Tribunal to be relevant to whether there are compelling circumstances, or to whether there are compassionate or compelling circumstances, that would justify the granting of a Skilled visa. For that reason, I am not satisfied that, had the Tribunal provided proper disclosure in relation to the 375A Certificate, that could realistically have resulted in a different decision.
DISPOSITION AND COSTS
I propose to order that the application be dismissed. I also propose to make an order under s 88G of the FCC Act in relation to the documents that are identified as folios 149B and 149A. These documents are “Confidential Exhibit ZM-1” to Mr McCaughan’s affidavit.
The Minister applies for costs, and submits that, if she succeeds, costs should be set in the amount of $5,600. The first and second applicants made no submissions in relation to costs. I am satisfied that costs should follow the event and that $5,600 is a fair indemnity for the costs the Minister has incurred in defending this proceeding. I therefore propose to order that the first and second applicants pay the Minister’s costs set in the amount of $5,600.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 18 June 2021
SCHEDULE OF PARTIES
SYG 975 of 2017 Applicants
Fourth Applicant:
WADAAH ASHRAF
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