Sharma v Minister for Immigration

[2016] FCCA 961

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHARMA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 961

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the requirements for a waiver of Public Interest Criterion 4020 are satisfied – whether the circumstances identified by the applicant constitute compelling or compassionate circumstances for the purposes of Public Interest Criterion 4020(4)(b) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.31, 65, 97, 338, 357A, 359A, 359AA, 360, 474
Migration Regulations 1994 (Cth), reg.2.01, Schedule 2 – cl.572.224, Schedule 4 – Public Interest Criterion 4020

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Vyas & Anor v Minister for Immigration & Anor [2013] FCCA 1226
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044

Applicant: RAVI KANT SHARMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2593 of 2014

Judgment of: Judge Emmett

Hearing date: 7 April 2016

Date of Last Submission: 7 April 2016

Delivered at: Sydney

Delivered on: 4 May 2016

REPRESENTATION

Solicitor for the Applicant: Mr Nigel Dobbie
(Dobbie and Devine Immigration Lawyers Pty Ltd)

Solicitor for the Respondents: Ms Katherine Hooper
(DLA Piper Australia)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2593 of 2014

RAVI KANT SHARMA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 25 August 2014 and handed down on 26 August 2014 (“the Tribunal”).

2. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. On 4 April 2013, the applicant lodged an application for a Student (Temporary) (Class TU) visa with the Department of Immigration and Citizenship (“the Department”).

2. On 11 September 2013, the Delegate refused the applicant’s application for a student visa.

3. On 25 September 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

4. On 26 August 2014, the Tribunal affirmed the decision of the Delegate not to grant a student visa.

5. On 18 September 2014, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Student (Temporary) (Class TU) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. For the grant of a student visa, the applicant was required to satisfy the criteria in cl.572.224 of Schedule 2 to the Regulations, which relevantly states:

   “572.224

   The applicant:

   (a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4012A, 4013, 4014 and 4020.”

3. Relevantly, Public Interest Criteria 4020 (“PIC 4020”) of Schedule 4 to the Regulations is as follows:

   “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 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.

   …

   (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.”

   (Emphasis added).

4. “Bogus document” is defined in s.97 of the Act, as follows:

   “97 Interpretation

   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.”

5. Under s.338 of the Act, a decision to refuse to grant a student visa is a decision which may be reviewed by the second respondent.

6. The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A and 360, which provide that:

   “359A  Information and invitation given in writing by Tribunal

   (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.

   360  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

7. Section 359AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

8. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

9. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. On 5 April 2013, the Delegate sent an email to the applicant, requesting evidence of the applicant’s financial capacity to undertake his study and stay in Australia.

2. On 13 May 2013, the Delegate received three financial documents from the applicant, comprised of a document showing an approval of a loan by the State Bank of Hydrabad and two term deposit statements from the same bank.

3. On 22 May 2013, the Delegate referred those financial documents to the Department’s overseas post in New Delhi for verification.

4. On 6 June 2013, the Department’s New Delhi post confirmed that the financial documents provided by the applicant on 13 May 2013 were not genuine.

5. As such, the Delegate requested the applicant to provide an explanation for submitting non-genuine information to the Department.

6. However, as at the date of the Delegate’s decision, the applicant had not provided any explanation for submitting non-genuine information to the Department.

7. Accordingly, on 11 September 2013, the Delegate refused the applicant’s application for a student visa on the basis that the applicant had provided bogus documents to the Department and therefore did not meet PIC 4020 and by extension, cl.572.224(a) of the Regulations.

The Tribunal’s review and decision

1. On 25 September 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. On 13 June 2014, the Tribunal sent a letter to the applicant pursuant to s.359A of the Act, inviting him to comment on or respond to adverse information. That information was that the financial documents he submitted in support of his application were found by the Department to be bogus.

3. On 16 June 2014, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 18 August 2014 to give oral evidence and present arguments.

4. By letter dated 27 June 2014, the applicant’s migration agent responded to the Tribunal’s s.359A letter. In that letter, it was submitted that pursuant to PIC 4020(4), the requirements under PIC 4020(1) should be waived as there were “compelling and compassionate circumstances that affect the interests of an Australian couple”. Attached to that statement was a letter from an Australian couple, who claimed to have formed a bond with the applicant because the applicant had provided them with assistance and companionship.

5. On 18 August 2014, the applicant attended the Tribunal hearing and gave evidence.

6. The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.

7. The Tribunal found that the financial documents provided by the applicant to the Department on 13 May 2013 were bogus documents within the meaning of s.97 of the Act. Accordingly, the Tribunal found that the applicant did not satisfy PIC 4020(1).

8. In considering whether the requirements under PIC 4020(1) should be waived pursuant to PIC 4020(4), the Tribunal noted that the terms “compassionate or compelling circumstances” in PIC 4020(4) were not defined by the Act or the Regulations.

9. As such, in interpreting the terms “compassionate or compelling circumstances” in PIC 4020(4), the Tribunal had regard to the case law, the Explanatory Statement to SLI 2011 No.13 which introduced PIC 4020, and Departmental guidelines. 

10. In relation to PIC 4020(4)(b), in considering whether “compassionate or compelling circumstances” existed, the Tribunal accepted that the applicant had formed a bond with an elderly Australian couple and that the couple had come to rely on him.

11. However, the Tribunal was not satisfied that the nature and extent of the relationship between the applicant and the Australian couple was such, that it would have a significant impact on the couple’s health and well-being if the applicant was no longer able to provide that assistance.

12. Having found that the applicant did not satisfy the conditions under PIC 4020(4) to waive the requirements of PIC 4020(1), the Tribunal affirmed the decision of the Delegate.

The proceeding before this Court

1. The applicant was represented before this Court by Mr Nigel Dobbie, solicitor.

2. At the commencement of today’s hearing, Mr Dobbie confirmed that the applicant relied on the ground contained in his initiating application filed on 18 September 2014, as follows:

   “1. The Tribunal misinterpreted the applicable law, and or misapplied the law to the facts, and or failed to conduct the review required of it.

   Particulars:

   (i)The Tribunal misinterpreted the applicable law, and or misapplied the law to the facts, and or failed to conduct the review required of it, in relation to the exercise of the waiver contained in subclause 4020(4) of Schedule 4 of the Migration Regulations 1994 ('the regulations').

   (a) Subclause 572.224(a) required the Applicant to satisfy public interest criterion 4020. The Applicant accepted that he had given a bogus document in support of his student visa application. As such, he was caught by subclause 4020(1) and would not be able to satisfy clause 4020 unless the waiver contained in subclause 4020(4) was found to be met at the time of the Tribunal's decision. Subclause 4020(4) relevantly provided:

   4020 ...

   (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.

   (b) The Applicant claimed that the support that he provided to an elderly Australian citizen couple, and the bond that they had, satisfied subclause 4020(4)(b), either on the basis of compassionate circumstances that affect the interests of an Australian citizen, or on the basis of compelling circumstances that affect the interests of an Australian citizen.

   (c) The Tribunal did not reject the Applicant's claims. It found as a fact that a bond had developed between the Applicant and the Australian citizen couple, and that they had come to rely on him. It then stated:

   However, the Tribunal is not satisfied that the assistance, support, and companionship which the applicant is providing to those Australian citizens is of such nature or extent as to impact significantly on their health and well-being if he were no longer able to provide it. The Tribunal is not satisfied that the circumstances described by the applicant and his witnesses constitute compassionate or compelling circumstances for the purposes of PIC 4040(4)(b) [sic] (at [20]).

   (d) The Tribunal misinterpreted the applicable law by requiring a higher test than that required by subclause 4020(4)(b). In relation to compelling circumstances that affect the interests of an Australian citizen, there is no requirement that the Applicant had to show that there would be a significant impact on the health and well-being of the Australian citizen couple, if he were no longer able to provide it (the assistance, support, and companionship).

   (e) The Tribunal misinterpreted the applicable law by requiring a higher test than that required by subclause 4020(4)(b). In relation to compassionate circumstances that affect the interests of an Australian citizen, there is no requirement that the Applicant had to show that there would be a significant impact on the health and well-being of the Australian citizen couple, if he were no longer able to provide it (the assistance, support, and companionship).

   (f) In any event, the Tribunal also failed to address the compassionate circumstances that affect the interests of an Australian citizen element contained in subclause 4020(4)(b). Its requirement that the Applicant had to show that there would be a significant impact on the health and well-being of the Australian citizen couple does not address the 'compassionate' element. At best, it might be relevant to the compelling element contained in subclause 4020(4)(b).”

3. Mr Dobbie was then invited to make submissions in support of that ground.

4. The relevant part of the Tribunal’s decision record, which Mr Dobbie submitted contained the alleged jurisdictional error, is as follows:

   “20. The Tribunal has considered the applicant’s evidence that he provides significant support to  an Australian citizen couple and the nature of that relationship is such that it constitutes compassionate or compelling circumstances affecting the interests of an Australian citizen which justifies waiving the requirements of PIC 4020(1). The applicant and his witnesses have provided evidence that the Australian citizen couple have come to rely on the applicant's assistance, support, and companionship. They claim that they suffer from ill health and the applicant has assisted them in this regard. The Tribunal accepts that a bond has developed between the applicant and the couple and that they have come to rely on him. However, the Tribunal is not satisfied that the assistance, support, and companionship which the applicant is providing to those Australia citizens is of such nature or extent as to impact significantly on their health and well-being if he were no longer able to provide it. The Tribunal is not satisfied that the circumstances described by the applicant and his witnesses constitute compassionate or compelling circumstances for the purposes of PIC 4020(4)(b).”

   (Emphasis added).

5. In a short oral submission, which to some extent departed from his written submissions, Mr Dobbie distilled the Tribunal’s error as having asked itself the wrong question in determining whether PIC 4020(1) should be waived under PIC 4020(4)(b). Mr Dobbie submitted that the Tribunal considered the wrong question by asking itself that if the applicant was no longer in Australia, and unable to provide assistance to the Australian couple, are there compelling or compassionate circumstances such that PIC 4020(1) should be waived.

6. Mr Dobbie contended that the Tribunal was required to consider the circumstances in light of the assistance presently provided by the applicant to the Australian couple, and to determine whether that assistance amounted to “compassionate or compelling circumstances” that affect the interests of an Australian citizen.

7. However, it was the applicant’s case before the Tribunal that PIC 4020(1) should be waived because of the significant impact on the couple if the applicant was to leave Australia, and that this amounted either to “compassionate or compelling circumstances” for the purpose of PIC 4020(4)(b).

8. Mr Dobbie tendered a bundle of documents identified as the ‘Court Book’ and filed on 29 October 2014, and which was marked Exhibit 1A. Inter alia, Exhibit 1A includes a statement dated 25 June 2014 from the Australian couple who have been assisted by the applicant. That statement detailed the type of assistance provided by the applicant. It stated that the applicant continues to help the couple in all important aspects of their lives; that they have become emotionally attached and dependent on him; that if he was to leave Australia, the “cheer, charm and the hope that he has brought” to their lives would be lost; and, that they would have to endure a lot of physical and emotional hardship without him.

9. That statement was referred to and summarised by the Tribunal in its decision record as follows:

   “5. They indicated that a bond had developed between themselves and the applicant and he provided them with assistance and companionship. The authors indicated that despite having four children, the applicant demonstrates more interest in their welfare and wellbeing. They indicated that they suffered from various health issues.”

10. The Tribunal noted the applicant’s evidence that the Australian couple suffered from ill health and that they relied on him to assist them; that they had come to rely on him for support and companionship; that they previously lived nearby and he saw them often, but now he lived about 15 to 20 minutes away; and, that he visited them frequently.

11. The Tribunal accepted that a bond had developed between the applicant and the couple, but that the circumstances which the applicant was describing did not, in the Tribunal’s view, amount to “compassionate or compelling circumstances” as required under PIC 4020(4)(b).

12. In reaching that conclusion, the Tribunal noted that the requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australia citizen, an Australian permanent resident or an eligible New Zealand citizen as required in PIC 4020(4).

1. The Tribunal then referred to the judicial consideration of the terms ‘‘compelling’’ or ‘‘compassionate’’ circumstances. The Tribunal referred to Vyas & Anor v Minister for Immigration & Anor [2013] FCCA 1226 (“Vyas”). The Court in Vyas found no error in a tribunal’s finding that, whilst it would be distressing for the applicant and her husband to be separated from their family members in Australia, who in turn would be saddened by their departure, their departure would not have a ‘‘deleterious’’ effect such that would cause the family members to ‘‘totally break down’’.

2. The Tribunal proceeded to refer to the types of circumstances that may involve “compassionate or compelling circumstances” for waiving the requirement of PIC 4020(1). Those are identified in the Explanatory Statement to SLI 2011 No. 13 which introduced PIC 4020. They all involve circumstances where the departure of an applicant from Australia would have an adverse impact on the applicant’s Australian family members.

3. As is clear from the passage cited above, the Tribunal considered the applicant’s evidence that he provided significant support to the Australian couple and the evidence from the couple of the assistance provided by the applicant. If the waiver was granted, then plainly the applicant would continue to be able to provide that assistance, support and companionship to the Australian couple. However, if the applicant was no longer in Australia, that assistance would no longer be provided to the couple by the applicant.

4. In my view, contrary to Mr Dobbie’s contention, a fair reading of the Tribunal’s reasons discloses that the Tribunal well understood the determination that it was required to make as to whether the circumstances identified by the applicant, and which the Tribunal accepted, amounted to “compassionate or compelling circumstances” that affected the interests of an Australian citizen for the purposes of PIC 4020(4).

5. Before the Tribunal, the applicant’s evidence and that of his witnesses centred on the impact that the applicant alleged would be placed on the Australian couple if the applicant’s support was withdrawn. In light of this evidence, the Tribunal was not satisfied that the circumstances described by the applicant and his witnesses constituted “compassionate or compelling circumstances” for the purposes of PIC 4020(4)(b).

6. The Tribunal’s finding in this regard is a factual finding that was reasonably open to the Tribunal on the evidence and material before it. It is clear from the Tribunal’s decision record that the applicant did not have any family relationship with the couple (a relevant factor stated in the Explanatory Statement referred to above), and that the applicant had previously lived near the couple, but now lived about 15 to 20 minutes away. These were all matters that the Tribunal was entitled to have regard to in considering whether the applicant’s assistance to the couple constituted “compassionate or compelling circumstances” for the purposes of PIC 4020(4)(b).

7. To the extent Mr Dobbie contended that the Tribunal asked itself the wrong question, it is well established that a Court should not be “concerned with looseness in the language…nor with unhappy phrasing” of the reasons of an administrative decision-maker. The Tribunal’s reasons for the decision under review are not to be construed “minutely and finely with an eye keenly attuned to the perception of error” (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 271 and 272 per Brennan CJ, Toohey, Mchugh & Gummow JJ; Fang Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1044 at [14] per Allsop J).

8. In the circumstances, I am not satisfied that the error contended for by Mr Dobbie constitutes jurisdictional error. The applicant did not suggest that the Tribunal’s decision is affected by any other jurisdictional error and none is apparent on the face of the Tribunal’s decision record or the conduct of its review.

9. Accordingly, the proceeding should be dismissed with costs.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  4 May 2016