Lakhani v Minister for Immigration and Citizenship
[2013] FCCA 451
•12 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LAKHANI v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 451 |
| Catchwords: MIGRATION – Judicial review of Migration Review Tribunal decision – refusal of Skilled Provisional (Class VC) Subclass 485 visa – no breach of s.359A of the Migration Act 1958 (Cth) – no undue delay resulting in a denial of procedural fairness – consideration of ‘compelling circumstances’ – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 97, 359A |
| Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 223 ALR 171 Talukder v Minister for Immigration and Anor [2009] FMCA 223 |
| Applicant: | ANILKUMAR DAYARAM LAKHANI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1230 of 2012 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 4 March 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 12 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gipp |
| Solicitors for the Applicant: | JK Legal |
| Counsel for the First Respondent: | Ms Latif |
| Solicitors for the First Respondent: | Clayton Utz Lawyers |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $8,296.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1230 of 2012
| ANILKUMAR DAYARAM LAKHANI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) dated 4 September 2012. The Tribunal affirmed a decision of a Delegate of the First Respondent (‘the Delegate’) not to grant the Applicant a Skilled Provisional (Class VC) Subclass 485 visa.
The grounds of the application are as set out in the Amended Application filed by the Applicant on 25 February 2013. They are as follows:-
“1. The Tribunal erred in failing to comply with s 359A(1)(a) of the Migration Act 1958 (Cth.).
Particulars
The Tribunal was obliged to provide the applicant with access to the original EILTS report (certificate) and the document examiner’s findings and report.
2. The Tribunal’s discretion miscarried in relation to its consideration of “compelling circumstances that affect the interests of Australia”, giving rise to jurisdictional error in that the Tribunal erred in its interpretation of the phrase “compelling circumstances that affect the interests of Australia” in PIC 4020(4)(a) [cl.4020(4)(a) of Schedule 4 of the Migration Regulations 1994 (Cth)] by refusing to properly consider the interests of the applicant’s employer, the Royal Victorian Eye and Ear Hospital.
3. The Tribunal erred in applying the provisions of PIC 4020(1) at all to the question of whether the applicant met the requirements of cl 485.224 of the Regulations due to unreasonable delay, when the Tribunal (differently constituted) failed to determine the applicant’s review application in a timely fashion and that the delay of approximately 20 months in making such a decision constituted undue delay such that the applicant was denied natural justice in circumstances where the applicant’s visa application should have been finally determined before 2 April 2011 and the promulgation of PIC 4020.
Particulars
(a) The applicant’s visa application was lodged on 26 September 2008.
(b) On 28 August 2009 the first respondent refused the visa application on the grounds that the applicant did not have “competent English”.
(c) On 15 September 2009 the applicant lodged an application to review the decision of the second respondent to the Tribunal.
(d) On 2 April 2011 the Migration Regulations 1994 (Cth) were amended to introduce PIC 4020. The transitional provisions determined that PIC 4020 applied to applications for a visa made, but not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958 (Cth)), before 2 April 2011.
(e) On 5 May 2011 the Tribunal determined that the applicant had “competent English” and remitted the application back to the second respondent; despite the Tribunal determining the application pursuant to s 360(2) of the Migration Act 1958 (Cth).
(f) On 12 May 2012 the second respondent refused the applicant’s visa application on the grounds that the applicant had provided a “bogus” document in the course of his visa application on 26 September2008 and therefore did not meet the provisions of PIC 4020.
(g) On 5 September 2012 the Tribunal affirmed the decision of the second respondent not to grant the applicant’s 485 visa on the grounds the applicant did not meet the requirements of PIC 4020 and accordingly the requirements of cl 485.224 of the Regulations.”
The Applicant relies upon Contentions dated 25 February 2013. The First Respondent relies upon the Response to Application dated 8 October 2012 and Contentions dated 28 February 2013. A Court Book and Supplementary Court Book were filed on 10 December 2012 and 27 February 2013 respectively and introduced into evidence. The First Respondent seeks dismissal of the application.
History
The history of this matter is accurately summarized in the First Respondent’s Contentions as follows:-
a)The Applicant is a citizen of India;
b)On 26 September 2008, the Applicant applied for the Skilled Provisional (Class VC) Subclass 485 visa;
c)On 22 July 2009, the case officer allocated to the Applicant wrote to him and requested he provide additional information within 28 days;
d)On 12 August 2009, the Applicant responded and provided some of the information requested. The information provided to the case officer included an International English Language Testing System (‘IELTS’) test report form dated 25 June 2009, reporting on a test taken on 13 June 2009. The IELTS test report indicated that the Applicant achieved a score of 6.0 in each of the listening, reading and speaking components, 6.5 in writing and 6.0 overall band score;
e)On 28 August 2009, the case officer and Delegate of the Minister of Immigration and Citizenship (‘the First Delegate’) informed the Applicant that his application had been refused and gave reasons for the decision;
f)In her reasons, the First Delegate recorded as follows;
“I have contacted IELTS directly and they have confirmed that the results provided on your test report form can not be verified as Genuine. IELTS records show that you obtained scores of 6.0 for Listening, 5.5 for Reading, 5.5 for Writing and 6.0 for Speaking.
Also the Adelaide Document Examiner has examined the original test report form submitted to this office and has confirmed that the test report form is genuine, however the scores for Reading and Writing have been altered.”
g)The First Delegate found the Applicant had not demonstrated his level of English to the competent standard and consequently did not satisfy the requirements of cl.485.22 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’);
h)On 15 September 2009, the Applicant applied to the Tribunal for review of the First Delegate’s decision (‘the First Tribunal’);
i)On 29 March 2011, whilst the application was before the First Tribunal, the Applicant provided a further IELTS test report demonstrating competent English;
j)By a decision dated 5 May 2011 the First Tribunal (differently constituted) remitted the application to the Delegate with a direction that the Applicant met cls. 485.215 and 485.22 of Schedule 2 of the Regulations on the basis of the IELTS test report provided on 29 March 2011;
k)On 19 August 2011, the Delegate wrote to the Applicant. The Delegate informed the Applicant that he had to satisfy the requirements of the Public Interest Criterion 4020 (‘PIC 4020’), contained in cl.4020 of Schedule 4 of the Regulations. The Delegate stated the Department of Immigration and Citizenship (‘the Department’) had become aware the Applicant may not satisfy PIC 4020 and provided a detailed account of that information. In essence, that the Applicant had provided the First Delegate with an IELTS test result with scores for the reading and writing components that had been altered. The Delegated invited the Applicant to comment on the information and supply a statement indicating compelling or compassionate reasons why the Department should consider new information and continue processing the application;
l)On 23 September 2011, the Applicant provided a statement and correspondence in response. Broadly, the Applicant denied having provided false information and provided evidence of his current employment;
m)On 11 May 2012, the Delegate refused to grant the Skilled Provisional (Class VC) Subclass 485 visa. The application was refused because the Delegate was not satisfied cl.485.224(1)(a) of Schedule 2 of the Regulations had been complied with, on the basis of the material before him;
n)On 25 May 2012, the Applicant applied to the Tribunal for review of the decision;
o)On 27 August 2012, the Applicant provided an “updated statement” and submissions. The Applicant denied having provided a false IELTS test report and provided subsequent IELTS test reports supporting his contention that he had perfect English. He explained that the 13 June 2009 IELTS test report related to a test he had sat in India. The report was sent to his parents who arranged for his friend to deliver it to him in Australia. He then submitted the report to the Department. He stated if his IELTS test report was “somehow tampered with”, he had no knowledge of it or involvement with it;
p)In submissions provided on the same date, the Applicant contended he had not been provided with the Adelaide Document Examiner’s report or conclusions, nor did he have the original IELTS test report alleged to be a “bogus document”. He contended he was “placed in an unfair position where he [did] not have access to the original [IELTS test report, [had] no access to the examiners [sic] findings and actual report and … no ability to properly [sic] test and challenge the conclusions reached by the examiner”. During the hearing on 28 August 2012, the Tribunal gave the following indication;
from memory, there are no further details other than what is provided in the delegate’s decision record and the natural justice letter the Department sent to the applicant, which is reasonably clear. However, if the Tribunal finds that there is and the information is potentially adverse, it will put that information in a letter to the applicant for comment prior to making any decision;
q)During the hearing the Applicant’s registered migration agent submitted the Applicant should be given the benefit of the doubt and took the Tribunal to relevant authority. He pressed the submission concerning the Adelaide Document Examiner’s qualifications. In response, the Tribunal noted “IELTS Australia has advised that the Applicant’s results in reading and writing are incorrect”;
r)Neither the Applicant nor his representative provided any further evidence or argument in this connection. The Tribunal did not in fact provide a letter inviting comment and did not rely upon any further information in deciding the review;
s)The Applicant also claimed compelling and compassionate circumstances for waiving the application of PIC 4020 in whole or in part existed and pointed to his employment as an accountant/ senior finance officer with a major public sector employer, being the Eye and Ear Hospital, who relied upon him and his expertise;
t)The Applicant’s representative made submissions in support of the application for waiver.
The Tribunal decision
The Tribunal noted that at the time the visa application was lodged the Skilled Provisional (Class VC) visa contained subclasses 485 (Skilled-Graduate) and 485 (Skilled – Regional Sponsored). The criteria for a Subclass 485 visa are set out in Part 485 of Schedule 2 of the Regulations. The Tribunal determined the issue before it concerned PIC 4020, as it appeared in Schedule 4 of the Regulations. On 2 April 2011, the Migration Amendment Regulations 2011 (no.1) (Cth) came into effect. These Regulations had inserted PIC 4020 into Schedule 4 of the Regulations. As the visa application under review by the Tribunal was made, but not finally determined before 2 April 2011, PIC 4020 was pertinent to the application for review before the Tribunal.
The issue for the Tribunal as stated by it was had the Applicant satisfied the requirements of PIC 4020? Was there evidence that the Applicant had 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 (‘MOC’), a bogus document or information that was false or misleading in a material particular in relation to the application for the visa, noting it was asserted that the Applicant gave an IELTS test report form in which the results were altered to the Department as part of his visa application.
Public Interest Criterion 4020, as contained in cl.4020 of Schedule 4 of the Regulations, is as follows:-
“(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.”
Section 97 of the Migration Act 1958 (Cth) (‘the Act’) states:
“"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.”
The Tribunal was satisfied on the evidence before it that the Applicant relied on results of an IELTS test undertaken on 13 June 2009 recorded in a test report form dated 25 June 2009 to satisfy the requirement that he had competent English at the time of the visa application.
The Tribunal found that the IELTS test report form that was originally submitted by the Applicant with his visa application to the Department clearly stated that he achieved a score of 6.0 for reading and 6.5 for writing in the IELTS test he undertook on 13 June 2009. IELTS Australia confirmed that the Applicant achieved a score of 5.5 for reading and 5.5 for writing. Accordingly, the Tribunal found that the correct score the Applicant achieved for the reading and writing test components in the IELTS test he undertook on 13 June 2009 was 5.5 for each component.
Consequently, the Tribunal found that the IELTS test report form the Applicant originally submitted to the Department with his visa application has been altered to set out a score of 6.0 for reading and 6.5 for writing. As a result, the Tribunal reasonably suspected that the IELTS test report form the Applicant originally submitted to the Department with his visa application was a document that had been altered by a person who did not have the authority to do so. The Tribunal found that it was a “bogus document” as defined in s.97 of the Act. In addition, given this finding, the Tribunal also found that the IELTS test report form the Applicant originally submitted was also a document that purported to have been issued in respect of the Applicant, but was not so issued. Consequently, the Tribunal also found that it was a “bogus document” as defined in s.97 of the Act. Accordingly, the Tribunal was satisfied that there was evidence before it that the Applicant gave, or caused to be given, a “bogus document” to the Minister, or an officer, in relation to his application for a Subclass 485 visa, as set out in cl.4020(1)(a) of Schedule 4 of the Regulations.
In addition, given the evidence before it, the Tribunal was also satisfied that the IELTS test report form the Applicant originally submitted with his visa application constituted information that was false or misleading in a material particular in relation to the application for a Subclass 485 visa. This was because it contained incorrect information stating that the Applicant had achieved a test score of 6.0 for reading and 6.5 for writing, rather than the correct scores of 5.5 for the reading and writing test component in the IELTS test he undertook on 13 June 2009. The Tribunal found that this information related to “a material particular” because Reg.1.15C(a) of the Regulations required the visa applicant to have achieved an IELTS test score of at least 6.0 for each of the four test components of speaking, reading, writing and listening. As such, a score of 5.5 for the reading and writing components would have resulted in a finding that the Applicant did not have “competent English” as defined in Reg.1.15C of the Regulations and the Applicant would not satisfy the requirements of cl.485.215 of Schedule 2 of the Regulations.
The Tribunal was of the view that the information the Delegate relied on to reach his decision from IELTS Australia, the relevant test centre, and a document examiner in Adelaide was sufficiently probative evidence, following the reasoning in Talukder v Minister for Immigration and Anor [2009] FMCA 223.
The Tribunal therefore found that there was evidence before the Tribunal that the Applicant had given to the Minister a bogus document in relation to the application for the visa that was the subject of review, so the Applicant did not meet the requirements of PIC 4020(1)(a).
Having found that the Applicant did not meet the requirements of PIC 4020(1)(a), the Tribunal turned to consider PIC 4020(4) which provides that the Minister (or on review, the Tribunal) may waive the requirements of PIC 4020(1)(a) if satisfied there exists compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that justify the grant of the visa.
In this case, the Applicant argued that such circumstances existed primarily because of his job as a senior finance officer with a hospital in Melbourne. At the hearing, his registered migration agent put forward a number of submissions explaining how this was a job that supports the Australian community and the ways in which the hospital – a public sector entity – would be inconvenienced and even prejudiced if the Applicant had to leave. The Tribunal considered these submissions carefully and whilst it accepted that the Applicant was a committed and hard worker and that his employer would be inconvenienced to a certain extent if he had to quit, it did not accept that these things individually or cumulatively amount to “compelling circumstances which affect the interests of Australia which justified the grant of the visa” – in that they were also skills, attributes and contributions held and made by many others in Australia, and as such Australian interests would not be affected by the absence of these contributions by the Applicant himself.
The Applicant said at the hearing that he also has a cousin in Australia. However, the Tribunal noted that his cousin was not an Australian citizen or permanent resident or eligible New Zealand citizen and the Tribunal found that this was not a compelling or compassionate circumstance to justify the grant of the visa.
For the reasons as set out in paragraph 15 and 16 herein, and having regard to the relevant case law, policy guidelines and Explanatory Statement to the amending legislation that introduced PIC 4020, the Tribunal found that the Applicant did not meet cl.4020(4)(a) or (b) of Schedule 4 of the Regulations and therefore did not meet the requirements of PIC 4020(4). Consequently, there was no basis upon which the Tribunal could waive the requirements of PIC 4020(1(a).
As the Applicant did not meet the requirements of PIC 4020(1)(a), the Tribunal found that he did not satisfy the requirements of cl.485.224(a) of Schedule 2 of the Regulations.
Given the findings above, the Tribunal found that the Applicant did not meet the requirements of cl.485.224 of Schedule 2 of the Regulations.
Consideration
Ground 1 – failure to comply with s.359A(1)(a) of the Act
Section 359A of the Act is as follows:-
“(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.”
The Applicant argues that the Tribunal did not disclose to the Applicant any information whereby the Applicant’s solicitors could investigate the veracity of the information relied upon by the Tribunal as contained in the Adelaide Document Examiner report wherein it was said the scores for reading and writing had been altered, or take steps to meet it.
The Applicant denied altering the document and denied providing an IELTS test report that was altered. The Applicant argued that the Tribunal ought to have made its own enquiries as to the nature of the claim that the IELTS test report had been altered, in particular, knowing of the Applicant’s denials. Further, the Applicant argued the Tribunal was obliged to provide access to:-
a)the original IELTS certificate; and
b)the document examiner’s finding and report,
to the Applicant. The provision of such documents it was claimed clearly came within the provisions of s.359A of the Act, as the evidence relied upon by the Tribunal adversely affected the Applicant’s interests. The Applicant being denied such opportunity to examine the evidence, was said to be unable to challenge the findings of the Adelaide Document Examiner and nor was he able to have the evidence examined by an independent expert to challenge the finding.
The First Respondent submitted in answer to this ground for review that s.359A(4)(b) of the Act provided a complete answer to the ground. The IELTS test report dated 25 June 2009 and the information from the Adelaide Document Examiner was information contained in the Delegate’s decision. The Applicant provided a copy of that decision to the Tribunal. This issue was considered in Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 where at paragraph [74] North, Greenwood and Besanko JJ said:-
“[74] The appellant's second submission that s 359A of the Act did not apply to the information in the Tribunal's letter because it was information that the respondent gave for the purpose of the application for review was not raised before the Federal Magistrate. It is raised in the appellant's notice of appeal. In view of our conclusion in relation to his first submission it is not strictly necessary for us to consider it. However, we will indicate our view of the submission because of the contention the respondent seeks to raise. We would decide the submission in the appellant's favour because it seems to us that the information in the Tribunal's letter is substantially the same as that in the Delegate's record of decision and, following the decision of Sundberg J in Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241, the information given to the Tribunal need not be information an applicant relies on. In those circumstances, the exception in s 359A(4)(b) applied.”
I accept the submission of the First Respondent in respect of this ground.
Even if s.359A(4)(b) of the Act did not apply, as I find it did, PIC 4020(1) applied by reason of the information provided by IELTS Australia. That information was not the subject of any request or evidence by the Applicant before the Tribunal. The Tribunal gave the Applicant the particulars of information required to be given by it as set out in its letter of 19 August 2011 wherein it invited comment on suspected fraudulent information supplied with a valid application for a visa. The particulars of that information, the sufficiency of which was not challenged by the Applicant, were:-
“IELTS test result
You provided results of your IELTS test dated 13 June 2009, test report 09IN028396LAKA122G, showing that you obtained scores of 6.0 for Listening, 6.0 for Reading, 6.5 for Writing and 6.0 for Speaking. IELTS Australia and test centre IN122 were contacted directly and it was confirmed to the Department that the results provided for candidate 028396 from the given test date of 13 June 2009 could not be verified as genuine. IELTS records show that you obtained scores of 6.0 for Listening, 5.5 for Reading, 5.5 for Writing and 6.0 for Speaking.
Also the Adelaide Document Examiner examined the original test report form submitted to this office and confirmed that the test report form is genuine, however the score for Reading and Writing have been altered.
Please be advised that PIC 4020 requires that 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 relation to:
▪ the application for the visa or
▪ a visa that the applicant held in the period of 12 months before the application was made.
As evidence has been found in your application that suggests a bogus document or information that is false or misleading in a material particular has been submitted, you are strongly encouraged to carefully read the following information to further understand how this matter can be addressed with the Department.”
The Applicant argues the original documents were to be provided to the Tribunal by the Applicant. But what is required to be provided by the Tribunal in its obligation of disclosure pursuant to s.395A of the Act is “clear particulars” of the information that is relevant in an invitation to comment. The Applicant was under no misapprehension as to why the Tribunal considered he had provided a bogus document as the information pertaining to the establishing of that allegation was given to him in a form readily understood by him. The particulars of the information given were sufficient to enable understanding and a response on the part of the Applicant. No further obligation is imposed upon the Tribunal and, in particular, in the manner claimed by the Applicant. The Applicant himself made no enquiries with IELTS Australia to confirm the genuiness or otherwise of his test results and nor was any evidence placed before the Tribunal to that effect. He said simply he had no idea whether the allegation that his IELTS test report had been altered was true or correct.
The Tribunal was not in these circumstances required to make its own further enquiries as to the information it relied upon.
Ground 2 – “compelling” circumstances
The Applicant argues that the Tribunal error in its interpretation of the phrase “compelling circumstances that affect the interests of Australia” in PIC 4020(4)(a) by refusing to properly consider the interests of the Applicant’s employer, the Royal Victorian Eye and Ear Hospital. It is argued this error of law resulted in jurisdictional error.
There is no definition of compelling or compassionate circumstances in the Act or Regulations. This is very much a question of fact finding and weight given to the relevant evidence by the Tribunal. In the exercise of its discretion, the Tribunal, in a not unduly restrictive approach, was not persuaded that the application of PIC 4020 ought to have been waived. This was open to it on the evidence which was absent, any direct evidence from the Applicant’s current employer save as to evidence of employment, and it is not for this Court to engage in a review of the merits (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
Ground 3 – unreasonable delay
The Applicant argues that the Tribunal erred in applying the provisions of PIC 4020(1) at all to the question of whether the Applicant met the requirements of cl.485.224 of Schedule 2 of the Regulations.
The Applicant alleges there was a delay of approximately 20 months in the making of the decision and that such undue delay denied the Applicant natural justice in circumstances where his visa application should have been finally determined before 2 April 2011 and, accordingly, the promulgation of PIC 4020. Specifically, the Applicant relies upon the decision in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs(2005) 223 ALR 171.
This argument cannot succeed. Firstly, there was not an inordinate delay of 20 months as claimed and secondly, delay of itself is not a ground of jurisdictional error. Where it renders a decision unsafe, for reasons of an inability to assess credit for instance, it can deny an applicant procedural fairness and lead to jurisdictional error. But the facts of this application are far removed from that.
The Applicant could not obtain a visa prior to 29 March 2011 when he submitted to the Tribunal at the first tribunal hearing an IELTS test report exhibiting competent English. The proceedings were then as a consequence remitted by that Tribunal. The amending legislation came into effect on 2 April 2011, some four days only later. This was the extent of the delay, although it cannot fairly be described as ‘delay’. Further, there was no adverse credibility findings based solely or significantly on the demeanour of the Applicant combined with a lengthy or significant unexplained delay as required by the authorities in this area to establish jurisdictional error. This is so even considering the entire period of the proceedings from the time of making application for a visa. Finally, as submitted by Counsel for the First Respondent:-
“as a matter of law, there are sound policy reasons why a courts (sic) should be hesitant to rely upon a change to the legislative framework as a means of demonstrating prejudice for the purpose of granting relief. Legislative amendments are a matter for Parliament. They are beyond the control of the decision-maker and parties to administrative proceedings: refer NAIS at [11] per Gleeson CJ. Secondly, applicants should not be encouraged to prosecute review applications on the basis of speculation concerning the timing of legislative amendment.”
This ground must fail.
Costs
The First Respondent claims costs beyond the scale amount of $6,646 on the basis that the Applicant filed an Amended Application and Written Submissions on 25 February 2013 and not by 1 February 2013, as ordered in Orders made by the Court on 1 November 2012. This late filing of material resulted in costs thrown away by the First Respondent as set out in paragraphs 20 and 21 of an Affidavit sworn 4 March 2013 by Mr Ben Petrie, a lawyer employed by Clayton Utz, lawyers for the First Respondent. Mr Petrie sets out in that Affidavit the attempts made by him to ascertain when and if the lawyers for the Applicant would comply with the procedural orders, so as to avoid the incurring of any unnecessary costs. The contents of his Affidavit are unchallenged. The additional costs incurred are claimed in the sum of $1,650. Costs are a discretionary matter. I propose to award those costs, they being incurred as a result of the Applicant’s failure to comply with procedural orders of the Court. The First Respondent’s incurring of them was after it had given every opportunity to the Applicant to avoid the incurring of these costs thrown away. Their quantum is reasonable and they should be paid by the Applicant.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 12 June 2013
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