Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1694
•23 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Le v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1694
File number(s): BRG 240 of 2020 Judgment of: JUDGE JARRETT Date of judgment: 23 July 2021 Catchwords: MIGRATION – Judicial review – Partner (Class UK) (Subclass 820) visa – whether applicant satisfied PIC 4020(1) – whether Tribunal properly applied PIC 4020(4) – no jurisdictional error – dismissed. Legislation: Migration Regulations 1994 (Cth) cl 820.226, Sch 4 PIC 4020(1), PIC 4020(4) Cases cited: Kaur v MIBP (2017) 256 FCR 235
Le v Minister for Immigration and Border Protection (2019) 164 ALD 267
LPGJ v Minister for Home Affairs [2019] FCA 1893
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Nguyen v Minister for Immigration and Anor and Le v Minister for Immigration and Anor [2017] FCCA 2680
Singh v Minister for Immigration and Border Protection [2016] FCCA 774
Number of paragraphs: 50 Date of last submission/s: 25 November, 2020 Date of hearing: 25 November, 2020 Place: Brisbane Counsel for the Applicant: Ms Yu Solicitor for the Applicant: TQH Lawyers & Consultants Solicitor for the Respondents: Sparke Helmore ORDERS
BRG 240 of 2020 BETWEEN: THI XUAN NGA LE
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE JARRETT
DATE OF ORDER:
23 JULY 2021
THE COURT ORDERS THAT:
1.The application filed on 21 April, 2020 be dismissed.
2.The applicant pay the first respondent’s costs of the application fixed in the sum of $6,500.
REASONS FOR JUDGMENT
JUDGE JARRETT:
By her application filed on 21 April, 2020 the applicant seeks judicial review of a decision of the second respondent made on 19 March, 2020 which affirmed a decision of a delegate of the first respondent not to grant her a Partner (Class UK) (Subclass 820) visa.
The applicant argues that the second respondent erred in its assessment of whether Public Interest Criterion 4020(1) should be waived pursuant to PIC 4020(4) and erred by failing to give active intellectual consideration to oral evidence given by the applicant’s daughter at the hearing that bore upon the dispositive issues.
The first respondent opposes the application. The second respondent enters a submitting appearance.
BACKGROUND
The applicant is a citizen of Vietnam. She arrived in Australia on 7 March, 2015 as the holder of a Visitor (Class FA) (Subclass 600) visa. On 27 May, 2015 she applied for a combined Partner (Temporary) (Class UK) (Subclass 820) and Partner (Residence) (Class BS) (Subclass 801) visa on the basis of her marriage to Mr Thai The Tran, a permanent resident of Australia.
The applicant and Mr Tran were married to each other between 1984 and 2001. During that marriage they had three children, born in 1984, 1989, and 1994. In 2014 they reconciled before re-marrying on 21 May, 2015 six days before the visa application now at issue was made.
On 11 August, 2016 the applicant and Mr Tran attended an interview held by a delegate of the first respondent. They were interviewed separately. During their respective interviews:
(a)Mr Tran confirmed that he had been in a relationship with a woman by the name of Thi Luc Hoang (Ms Hoang) between 1992 and 2002 and that a child had been born to that relationship. That is to say, Mr Tran had a fourth child, not just the three from his relationship with the applicant. He said nothing about the applicant’s knowledge of these matters; and
(b)The applicant gave evidence that, to her knowledge, Mr Tran had only had one other girlfriend, “Binh,” in 2001 and did not have any other children.
Amongst other things, it was necessary for the applicant to satisfy the requirements of cl.820.226 of the Migration Regulations 1994 (Cth) at the time of the visa decision. That clause required the applicant to satisfy certain of the Public Interest Criteria set out in schedule 4 to the Regulations. Among them is PIC 4020(1) and PIC 4020(4) which, at the relevant time, were in the following terms:
4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5‑reviewable decision, 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.
(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.
On 12 August, 2016 the applicant was invited by the delegate to comment on information that suggested she did not meet PIC 4020(1). The invitation suggested that there was evidence to suggest that the applicant had provided, or caused to be provided, false and misleading information in a material particular. The false and misleading information was that:
(a)Mr Tran only had three children (to the applicant); and
(b)Mr Tran had never been in a marriage or de facto relationship other than with the applicant.
On 8 September, 2016 the applicant responded to the invitation. She confirmed that she did not know about the fourth child until she spoke with Mr Tran after the interview with the delegate. Mr Tran provided a statutory declaration in which he confirmed that the applicant was unaware of the fourth child.
On 11 October, 2016 the first respondent’s delegate refused to grant the visa. One of the matters relied upon for the refusal was the delegate’s finding that the applicant did not satisfy PIC 4020(1). The delegate was not satisfied that compelling circumstances affecting 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 justified the granting of the visa.
On 1 November, 2016 the applicant applied to the second respondent for review of the delegate’s decision. On 6 December, 2016 the second respondent found that it did not have jurisdiction to review the decision because the application had been made by the sponsor, Mr Tran, who did not have standing to make the application. The sponsor applied for judicial review of the second respondent’s decision and on 9 October, 2017 another judge of this Court dismissed the application (Nguyen v Minister for Immigration and Anor and Le v Minister for Immigration and Anor [2017] FCCA 2680). On 27 March, 2019 the Federal Court (Greenwood J) allowed the appeal (Le v Minister for Immigration and Border Protection (2019) 164 ALD 267) on the basis that the second respondent did have jurisdiction to review the delegate’s decision because the application was “in truth and in substance” made by the applicant. The application for review was remitted to the second respondent for determination.
On 16 October, 2019 the second respondent invited the applicant to attend a hearing in respect of the application for review on 5 November, 2019. The hearing was postponed until 19 December, 2019 and later rescheduled for 4 February, 2020.
On 4 February, 2020, the applicant appeared before the second respondent to give evidence and present arguments. She was assisted by her representative and an interpreter in the Vietnamese and English languages. Mr Tran and the applicant’s daughter, Ms Tran, also gave evidence. On 11 and 14 February, 2020, the applicant’s representative provided written submissions and further evidence to the second respondent.
On 19 March, 2020 the second respondent affirmed the delegate’s decision not to grant the applicant the visa.
The second respondent recorded that by reason of cl.820.226 of schedule 2 to the Regulations it was for the applicant to satisfy the requirements of PIC 4020 and 4021 set out in schedule 4 to the Regulations.
The second respondent considered that the issues before it were:
(a)whether, for the purposes of PIC 4020(1), the applicant had given, or caused to be given, information that was false or misleading in a material particular in relation to the application for the visa; and if so
(b)whether there were compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen or permanent resident for the purposes of PIC 4020(4); and, if so
(c)whether those circumstances justified the grant of the visa such that the requirement of PIC 4020(1) be waived.
When taxed with the inconsistencies between the information provided by the applicant about her family and the information provided by Mr Tran, the applicant agreed that incorrect information had been provided in support of the visa application. She declined the second respondent’s offer to adjourn the tribunal hearing so as to enable her to further consider that issue. Mr Tran agreed that he had provided false information in support of the visa application.
Unremarkably then, the second respondent found that the applicant had provided information in relation to her visa application that was false or misleading in a material particular. The second respondent recorded its findings as follows:
43. Having had regard to all of the evidence before it, the Tribunal concludes that the following false and misleading information has been provided to the Department in relation to the visa application, including as follows:
(a) that the sponsor had only three children.
(b) that the sponsor had never been in a same-sex or opposite-sex de facto relationship with a person other than the visa applicant.
(c) that the applicant, at the time of the sponsor’s interview with the Department on 11 August 2016, was aware of the sponsor’s relationship with Ms Hoang and that the sponsor and Ms Hoang had a child together.
The second respondent considered that whilst there was no deception or fraud on the applicant’s part by giving that false or misleading information to the Department because at the time she gave it she did not know it was false, the second respondent did consider that there was deception and fraud on the part of Mr Tran who did indeed know the true position when he gave his information to the Department. The fraud or deception of Mr Tran was enough to demonstrate a failure to satisfy PIC 4020(1). The second respondent considered that the false information provided was relevant to ascertaining whether the applicant met the criteria for the grant of the visa in cl.820.211(2) and cl.820.221(1) to Schedule 2 of the Regulations.
Accordingly, the second respondent found that PIC 4020(1) was not met.
The second respondent next considered PIC 4020(4). The applicant contended that her sponsor’s health and need for support enlivened the waiver power in PIC 4020(4). There was evidence that he suffered from gout and a rheumatic condition. The second respondent accepted these matters and that Mr Tran relied upon the applicant, not just to assist him physically with the impact of this condition, but also for emotional and moral support.
The second respondent recorded the evidence given by the parties’ daughter Ms Tran. I will refer to that later in these reasons in more detail.
The second respondent accepted that:
(a)the separation between the applicant and the sponsor that may result from a visa refusal decision may extend to long-term separation with no certainty as to the applicant’s and Mr Tran’s future together, which in turn will lead to instability and uncertainty for Mr Tran;
(b)a refusal decision would result in the applicant’s daughter losing the benefit of the applicant caring for her father (Mr Tran), her and her son and the assistance she received from the applicant cleaning her business premises; and
(c)the entire family unit wanted the applicant to be able to remain in Australia.
The second respondent had regard to the Department’s Procedures Advice Manual and placed particular weight on Mr Tran’s chronic medical condition.
Nonetheless, the second respondent was not satisfied that the impact upon the applicant’s daughter and her son amounted to compassionate or compelling circumstances so as to enliven the PIC 4020(4) waiver power. However, it was satisfied that there were compassionate and compelling circumstances affecting the sponsor (an Australian permanent resident) based upon his health condition and the particular care that the applicant could provide.
The second respondent then considered whether those “circumstances justify the grant of the visa such that the requirement of PIC 4020(1) should be waived”. On this point it found against the applicant. Notwithstanding its finding that there were compassionate and compelling circumstances affecting Mr Tran (an Australian permanent resident), the second respondent decided not to exercise the waiver power in PIC 4020(4):
80. The Tribunal acknowledges, as submitted, and as already found by the Tribunal, that there has been no element of fraud or deception on the part of the applicant, and the Tribunal has taken into account the submission that the applicant should not be penalised or punished so severely for the provision of false information over which she had no control. However, as noted in the submissions and also already noted in these Reasons, it is not a requirement that there is an element of fraud or deception by the applicant – the element of fraud of deception can be on the part of another person, such as, relevantly in this case, by the sponsor, the person in relation to whom it is now submitted that consideration should be given regarding compassionate and compelling circumstances impacting him. Having had regard to the fact of the sponsor’s deliberate fraud, as has been found by the Tribunal and as has also been acknowledged in the submissions where it is stated that the ‘Sponsor was forced to reveal the truth’, the Tribunal is not satisfied that the compassionate and compelling circumstances impacting the sponsor justify granting the visa in the circumstances, such that the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived. In reaching this conclusion, the Tribunal observes that although it has not formally considered whether the applicant was at the time of the visa application and is now at the time of decision, the spouse of the sponsor, it has considered whether the discretion should be exercised on the basis that the required spousal relationship existed at the time of the visa application and exists now and is still not able to be satisfied that the compassionate and compelling circumstances which it has found exist justify the granting of the visa.
81. It follows that the applicant does not satisfy PIC 4020 for the purposes of cl.820.226.
The second respondent affirmed the delegate’s decision not to grant the visa.
THE GROUNDS OF REVIEW
The applicant does not challenge the second respondent’s findings that the applicant provided information in relation to her visa application that was false or misleading in a material particular. Nor is there any challenge to the way in which the second respondent approached the question of deception or fraud on the part of Mr Tran for the purposes of determining whether false or misleading had been given to the Department.
The first ground of review is in the following terms:
1. The Second Respondent (the Tribunal) erred in its assessment of whether Public Interest Criterion 4020(1) of Schedule 4 to the Migration Regulations 1994 (Cth) should be waived pursuant to PIC 4020(4), by treating the circumstances of the failure to meet PIC 4020(1) as being legally relevant to the exercise of the discretion in PIC 4020(4).
Particulars
a. The Tribunal, at [43]-[46] of its decision, found that PIC 4020(1) was not met because information that was false or misleading in a material particular had been provided to the Department in relation to the Applicant’s application for a Partner (Temporary) (Class UK) (Subclass 820) visa, including as follows:
i.That the Applicant’s sponsor only had three children, being the children of the relationship between the Applicant and the sponsor;
ii.That the sponsor had never been in a same-sex or opposite-sex de facto relationship with a person other than the Applicant; and
iii.That the Applicant, at the time of the sponsor’s interview with the Department on 11 August 20 I 6, was aware of the sponsor’s relationship with another woman named Ms Thi Luc Hoang and that the sponsor and Ms Hoang had a child together.
b. The Tribunal considered that the information referred to above at (a)(i)-(iii) was false or misleading in a material particular because:
i.The sponsor in fact had four children in total;
ii.The Tribunal considered that the sponsor had been in a relationship with Ms Hoang;
iii.There was evidence that the Applicant was unaware of the sponsor’s relationship with Ms Hoang and the child that they shared until after the Departmental interview held on 11 August 2016; and
iv.The information provided was relevant to ascertaining whether the Applicant met the criteria for the grant of the visa in cl.820.211 (2) and cl.820.221 (I) to Schedule 2 of the Regulations.
c. In considering the exercise of the power in PIC 4020(4), the Tribunal found at [78] of its decision, that there were compassionate or compelling circumstances affecting the sponsor who was an Australian permanent resident.
d. The Tribunal declined to waive the requirements of PIC 4020(1) pursuant to PIC 4020(4) for reasons including that the sponsor had engaged in deliberate fraud and that the circumstances submitted as compassionate or compelling were circumstances affecting him: see [80] of the Tribunal’s decision.
e. In making the finding referred to above at (d) the Tribunal erred by treating the discretionary matters set out in PIC 4020(4) legally relevant to the content of PIC 4020(1) and the reasons for the breach of PIC 4020(1). The discretionary matters set out in PIC 4020(4) are unrelated to the content of PIC 4020(1) and (2) and reasons for any breaches thereof.
f. As cl.820.226 to Schedule 2 of the Regulations requires the Applicant to satisfy PIC 4020 in order to be granted a Subclass 820 visa, the Tribunal’s error was material to the outcome of its decision. Consequently, the Tribunal’s decision was affected by jurisdictional error.
The applicant argues that by reasoning in the manner it did, the second respondent erred by “treating the discretionary matters set out in PIC 4020(4) legally relevant to the content of PIC 4020(1) and the reasons for the breach of PIC 4020(1)”.
The applicant relies upon Singh v Minister for Immigration and Border Protection [2016] FCCA 774 at [60] where the Court held that the discretionary matters set out in PIC 4020(4) were unrelated to the content of PIC 4020(1) and (2) and the reasons for any breaches thereof. The applicant argues that Singh stands for the proposition that the evidence given in support of a waiver of PIC 4020(1) or (2) needs to be considered independently of the reason for the failure to meet PIC 4020(1) or (2).
However, the applicant’s submissions misconstrue that part of Singh upon which she relies. In Singh, the applicant had been found by the Tribunal to have provided false and misleading information and bogus documents in support of a visa application. Three instances of such conduct were identified. One related to his English language proficiency. He had overstated his test results on a relevant English language test. The second instance related to the length of his employment in Australia. The third instance related to false information regarding the applicant’s employment history. The applicant relied upon payslips that the Tribunal determined were bogus. The Tribunal determined that Mr Singh did not satisfy PIC 4020(1) because of those false and misleading statements.
Before the Federal Circuit Court Mr Singh argued that the finding concerning the representation about his English language proficiency was erroneous because the Tribunal made no finding that it was deliberate or that there was fraud or deception involved when Mr Singh made the representation. On this point he succeeded. Emmet FCCJ was satisfied that the Tribunal had indeed fallen into error in this respect.
When it came to consider whether PIC 4020(1) should be waived, the Tribunal recorded that the applicant did not suggest that there were any compelling circumstances that affected the interests of Australia to justify a waiver. The Tribunal noted the applicant’s request for it to take into account that he had worked for his qualification and any mistakes in his application were due to his lack of knowledge of the procedures. However, the Tribunal found that evidence did not relate to any of the circumstances in which PIC 4020(1) may be waived.
In the Federal Circuit Court Mr Singh argued that the Tribunal’s determination of the PIC 4020(4) issue was an accumulation of its findings in relation to PIC 4020(1) and (2) and so, an error in one of the findings concerning those matters necessarily infected the conclusion reached about PIC 4020(4). Counsel for the applicant submitted that the error of the Tribunal in not considering the applicant’s explanations in relation to the English language proficiency error was material and consequently, a jurisdictional error. Of this argument, Emmett FCCJ said:
58. However, I do not accept counsel for the applicant’s submission that the Tribunal’s decision to refuse to waive PIC 4020(1) was as a result of its cumulative consideration of the information and bogus documents given to it by the applicant.
59. In the circumstances, I am not persuaded that the error that I have found on the part of the Tribunal in failing to consider the applicant’s explanations as to whether the applicant’s wrong statement that he had “Proficient English” was innocent, unintended or accidental, is a jurisdictional error. I am satisfied that the failure of the Tribunal to take into account the applicant’s explanations and the failure to make a finding in relation to those particulars could not have materially affected its decision.
60. Further, I accept the first respondent’s submission that the discretionary matters set out in PIC 4020(4) are unrelated to the content of PIC 4020(1) and (2) and reasons for any breaches thereof. Accordingly, any error in the Tribunal’s consideration of one of the three breaches of PIC 4020(1) (which I have found) would not have affected the Tribunals consideration of PIC 4020(4). In the circumstances, I do not accept the submissions of the applicant to the contrary.
The statement in paragraph 60 I have just extracted is relied upon by the applicant to make good her argument. However, read in context, I do not consider that to be a statement of principle as the applicant suggests.
Further, as the first respondent argues, for an administrative decision-maker to commit a jurisdictional error by taking a particular consideration into account in the course of undertaking his or her statutory function, the consideration must be one that “either expressly or by implication, a decision maker is forbidden or prohibited from taking into account.”: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
There is nothing in the text of PIC 4020(4) to suggest that the discretion it creates is fettered or confined in any way. Again, as the first respondent submits, where a statute confers a discretion which is unconfined in its terms the permissible considerations in the exercise of that discretion are also unconfined “except in so far as there may be bound in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.”: LPGJ v Minister for Home Affairs [2019] FCA 1893 at [33] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40.
I accept the first respondent’s argument that in the circumstances of this case, it could not be said that the content of the false or misleading information, the manner in which it was provided and the circumstances in which the falsity of the information was discovered were irrelevant to a consideration of whether to exercise the discretion to waive the requirement.
This ground does not reveal any jurisdictional error.
However, before passing from this ground, I observe that the approach of the second respondent as revealed in the heading that appears before paragraph 80 of its reasons whereby it asked itself the question: “Do those circumstances justify the grant of the visa such that the requirement of PIC 4020(1) may be waived?” causes me some disquiet. That is because it appears to conflate the two step process that is required by PIC 4020(1) (and as to that see Kaur v MIBP (2017) 256 FCR 235 at [26]). The first step is to consider whether (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. Before the discretion to waive the requirements of PIC 4020(1) arises, the requisite satisfaction about the existence of qualifying circumstances that justify the granting of the visa must be reached. The way in which the second respondent has expressed its task in the heading tends to suggest that the second respondent conflated the two steps. The text of [80] of the reasons confirms the approach (my emphasis):
80. … Having had regard to the fact of the sponsor’s deliberate fraud, as has been found by the Tribunal and as has also been acknowledged in the submissions where it is stated that the ‘Sponsor was forced to reveal the truth’, the Tribunal is not satisfied that the compassionate and compelling circumstances impacting the sponsor justify granting the visa in the circumstances, such that the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived.
The second respondent’s expression tends to suggest that rather than finding that the compassionate and compelling circumstances found to exist justify granting the visa, the second respondent has determined to decline to exercise the discretion because it did not find the relevant circumstances to justify the granting of the visa. Such an approach fails to recognise the threshold nature of the satisfaction required by PIC 4020(4). If the second respondent was not satisfied that the compassionate and compelling circumstances impacting the sponsor justified granting the visa, that was the end of the matter. There was no occasion to consider the discretion to waiver the requirements of PIC 4020(2).
This matter was not the subject of a ground of review by the applicant and not the subject of argument. I say nothing more about it.
The second ground of review is in the following terms:
2. The Tribunal constructively failed to exercise its jurisdiction by failing to give active, intellectual consideration to whether the circumstances affecting the Applicant’s daughter and grandson constituted compassionate or compelling circumstances affecting the interests of an Australian citizen that justified the grant of the visa pursuant to PI C 4020( 4 )(b) Schedule 4 to the Migration Regulations 1994 (Cth).
Particulars
a. As recorded at (59] of the Tribunal’s decision, the Applicant’s daughter Ms Tran, gave oral evidence in support of a positive exercise of the discretion in PIC 4020(4)(b). Ms Tran’s evidence was to the effect that she and her son were Australian citizens, and that she needed to remain in Australia for reasons including:
i.to assist Ms Tran in caring for her son (the Applicant’s grandson) because of Ms Tran’s post-natal health and her business commitments;
ii.because Ms Tran’s husband has not been helping her very much; and
iiibecause following her own migration to Australia, Ms Tran had been separated from her mother the Applicant for over 10 years, until the Applicant’s arrival in Australia.
b. At [73] and [78] of its decision, the Tribunal stated that it had taken into account the circumstances affecting Ms Tran. At [78] of its decision, the Tribunal stated that “The Tribunal is not satisfied that the impact upon the applicant’s daughter and her son, as canvassed earlier in these Reasons, amounts to compassionate or compelling circumstances”.
c. In making the findings referred to above at (b), the Tribunal did not demonstrate any active, intellectual consideration of the evidence given by Ms Tran in support of a positive exercise of the discretion in PIC 4020(4)(b).
d. As cl.820.226 to Schedule 2 of the Regulations requires the Applicant to satisfy PIC 4020 in order to be granted a Subclass 820 visa, the Tribunal’s error was material to the outcome of its decision. Consequently, the Tribunal’s decision was affected by jurisdictional error.
This ground, however, fails on a factual level. The second respondent clearly gave proper consideration to this aspect of the applicant’s case, even though it was not articulated clearly in the written submissions made for the applicant by her agent and provided after the hearing on 11 February, 2020 and 14 February, 2020.
Nonetheless, the second respondent’s reasons show that it summarised the oral evidence given by the applicant’s daughter. The applicant does not suggest that the second respondent misunderstood the purport of that evidence or that its summary of it was erroneous. The second respondent expressly recorded that it had taken into account the applicant’s daughter’s evidence in determining whether the PIC 4020(4) waiver power was enlivened. As the first respondent submits, the second respondent then set out an extract from PAM 3 in which certain factors were identified that may justify the consideration of waiving PIC 4020(1). The matters raised by the evidence of the applicant’s daughter did not fall within any of the identified factors in the PAM 3. The second respondent said at [76] that it had placed considerable weight upon the matters raised on the evidence and submissions, and, in particular, consistent with the relevant factors suggested by policy, the chronic medical condition impacting Mr Tran. It follows that it placed little weight upon the matters raised by Ms Tran’s daughter.
The second respondent recorded that it had taken into account all of the circumstances raised on the evidence and in submissions, both individually and cumulatively. There is nothing on the face of the second respondent’s reasons to suggest that was not an accurate statement. The second respondent concluded that it was not satisfied that the impact upon the applicant’s daughter and her son amounted to compassionate or compelling circumstances.
I am not satisfied that the applicant demonstrates that the second respondent did not fail to engage in an active intellectual consideration in relation to the interests of the applicant’s daughter and grandson. It understood and accepted the evidence provided in support of those claims but concluded that they did not constitute compelling or compassionate circumstances when measured against the guidance provided by the PAM 3.
This ground reveals no jurisdictional error.
CONCLUSION
The application for review reveals no jurisdictional error and must be dismissed with costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jarrett delivered on 23 July, 2021. Associate:
Dated: 23 July 2021
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