SHRESTHA v Minister for Immigration

[2017] FCCA 2339

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHRESTHA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2339

Catchwords:
MIGRATION – Application to review decision of Administrative Appeals Tribunal to affirm decision not to grant the Applicants student visas – where non-disclosure of criminal conviction of Second Applicant – whether Tribunal failed to consider the facts and apply the law – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), Sch 2 cls.572.224, 572.322, Sch 4 cl.4020

Cases cited:

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169; [2014] FCAFC 42

First Applicant: MANISHA SHRESTHA

Second Applicant: AJAY BANIYA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 638 of 2016

Judgment of: Judge Barnes

Hearing date: 18 September 2017

Delivered at: Sydney

Delivered on: 18 September 2017

REPRESENTATION

Applicants: In Person

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application be dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 638 of 2016

MANISHA SHRESTHA

First Applicant

AJAY BANIYA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 8 March 2016.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants Student (Temporary) (Class TU) visas. 

2. The relevant background to these proceedings is that in October 2013 the Applicants applied for Student visas.  The First Applicant applied on the basis of her intended study.  The Second Applicant was included as a member of her family unit.  These were not the first Student visas that these Applicants had held.  There is material in the Courtbook in relation to the First Applicant’s study in Australia from 2008 on (including a visa cancellation and revocation of the cancellation). 

3. In the 2013 Student visa application, in response to part of question 73 (under the heading “Character”) which asks, “Have you, or any member of your family unit included in this application, ever … been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?” the First Applicant responded “no”. 

4. By letter dated 16 May 2014 an officer of the Department wrote to the First Applicant inviting her to comment on information that on 3 September 2009, while holding a Student visa, the Second Applicant (her dependent spouse included in the Student visa application) had been convicted at Manly Local Court of stealing and had been fined $300.  The First Applicant was asked to provide an explanation as to why this information was not declared in the visa application. 

5. The letter drew the First Applicant’s attention to the requirement for the grant of a Subclass 572 Student visa that she satisfy Public Interest Criterion 4020 (PIC 4020).  This criterion, which requires that there be no evidence that an applicant has given or caused to be given to (relevantly) the Minister or an officer a bogus document or information that is false or misleading in a material particular in relation to the application for the visa, was explained. 

6. The First Applicant was given the opportunity to provide comment on the information considered to be false or misleading or the document considered to be bogus and also to specify if she believed there were any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen such as to justify waiver of this requirement under PIC 4020(4).

7. On 22 May 2014 the Applicants’ migration agent responded to the invitation with an explanation that the Second Applicant had been convicted, that the fine “was already paid off. Therefore did not disclose about this in application.” The agent also enclosed an amended page of the visa application form with the answer “yes” ticked in response to the part in question 73 about a criminal conviction and a reference to a statement attached, being an explanation from the Second Applicant as to the circumstances in which the offence occurred. He explained that while employed at a supermarket and balancing his till at the end of the day he had identified it was $300 short and had decided to delete $300 from his transactions in order to balance the till. This action was subsequently discovered by his employer. He claimed that, keen to have the matter resolved quickly as he was shortly to travel to his home country, and to avoid expensive legal fees, he decided to plead guilty to the offence.

8. On 27 June 2014 a delegate of the First Respondent refused the visa application on the basis that the First Applicant had not met PIC 4020 (and hence the criterion in cl.572.224(a) in Schedule 2 to the Migration Regulations1994 (Cth) (the Regulations)). The delegate found that in failing to declare the conviction in the character section of the visa application form the First Applicant had provided information that was false or misleading in a material particular.

9. The Applicants sought review by the Tribunal.  They attended a Tribunal hearing.  The Tribunal as originally constituted affirmed the decision not to grant them Student visas on 9 January 2015.  They sought judicial review in this court.  On 24 April 2015 the matter was remitted by consent on the basis of the Minister’s acceptance that the Tribunal had failed to consider whether the information it determined engaged the operation of PIC 4020 had the necessary quality of purposeful falsity (see Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169; [2014] FCAFC 42 at [43]).

10. After the matter was remitted to the Tribunal, the Applicants were invited to and attended a further Tribunal hearing.  They provided further copies of documentation relevant to the Student visa application, including an explanation for gaps in the First Applicant’s study and another explanation from the Second Applicant for the circumstances in which the offence occurred.  They provided further copies when they changed their address.

11. In its decision of 8 March 2016, the Tribunal referred to the history of the visa application and the basis on which the delegate had refused the application and recorded that the First Applicant had failed to indicate in her application form that the Second Applicant had been convicted of a criminal offence in Australia but, instead, had stated in the application form that neither she nor her husband had been convicted of a crime or offence in any country. The Tribunal recorded that this issue had been raised with the First Applicant after she had submitted her visa application. It referred to the evidence provided in response, including the evidence from the First Applicant (through her adviser) that the Second Applicant was convicted of stealing on 3 September 2009 and fined $300, but as the fine had been paid they did not disclose the information on the application. The Tribunal also referred to the provision of an amended visa application form on which the conviction was disclosed.

12. The Tribunal had regard to the evidence before the first Tribunal and to the Applicants’ submissions about the events that led to the conviction and the circumstances in which the Second Applicant had pleaded guilty, as well as the evidence of the Applicants at the first Tribunal hearing in relation to the waiver provision. 

13. It recorded that the Second Applicant had told the first Tribunal that he had told his agent to answer “no” to the criminal offences, but two or three weeks later called the agent and told him to change it; that they had claimed that the agent was on holidays and everything was done by “the secretary” and that therefore there may have been a mistake; that they were not harmful to Australian society; and that they wanted to study, but could not do so in their own country.  The First Applicant also told the first Tribunal that her grandfather had passed away and she had suffered from anxiety, stress, and depression.

14. The Tribunal recorded that after the matter was remitted by consent the Applicants appeared before it at a further hearing at which it outlined the requirements of PIC 4020 and the waiver provision.  It had regard to the fact that at this hearing both Applicants had acknowledged that they did not state “yes” in the application form or indicate that the Second Applicant had been convicted of a criminal offence and had agreed that the issue was whether this was innocent, unintended or accidental (which they said was the case). 

15. The Tribunal considered the Second Applicant’s evidence that he had not stolen money, but that the till was short and he had “deleted” $300, that he was innocent, but decided to plead guilty because he wanted to travel to Nepal, particularly as the First Applicant’s grandfather was sick. He confirmed that he had been to the police station and appeared in front of a magistrate at Manly Local Court and that this was for a sentencing hearing and that he had to pay a fine and court costs. He claimed that he had already paid the money back to his former employer. The First Applicant told the Tribunal that she did not go to the police station or the Local Court, and thought her husband had paid the fine. The Tribunal considered her claim that she did not know the Second Applicant had been convicted of a criminal offence and that she did not know the law, but observed that she then said she knew he was convicted, but thought he had to pay a fine.

16. The Tribunal also had regard to the fact that both Applicants said they filled in the visa application form with the agent’s receptionist and claimed that they did not realise they had to say “yes” to the question about a criminal conviction in the visa application form.  It recorded that both Applicants attended the meeting and both signed the form.

17. The Tribunal recorded that it raised with the Applicants the fact that it had difficulty believing that having undergone the process at the Manly Local Court they would not know that the Second Applicant had been convicted of a criminal offence.  It described the Applicants’ evidence that they had tried to correct the information and that the agent had sent a new part of the form, but also had regard to their confirmation that this occurred after the agent was advised by the Department of the conviction.  According to the Tribunal, they both said they did not know about the problem until contacted by the Department, the Second Applicant denied that he had tried to contact the agent two to three weeks after the application form was submitted to correct the information, and they both repeated that it was accidental. 

18. The Tribunal explained that it had outlined the waiver provision at the hearing.  It summarised the evidence in that respect, including the First Applicant’s claims that she wanted to study in Australia; that she was a genuine student; her evidence of the impact of the earthquake in Nepal and the death of family members; and her claim that she could not return home because she had no travel permit.  It also referred to the evidence about an offer of enrolment, an explanation for gaps in her study, as well as the explanation by the Second Applicant as to why they had failed to provide the information about his conviction in the initial application (which was said to be similar to the oral explanation).

19. The Tribunal concluded that the decision should be affirmed. It stated that the issue was whether the First Applicant met PIC 4020 as required by the visa criterion in cl.572.224 in Schedule 2 to the Regulations. It set out the requirements of PIC 4020 which relevantly provides:

    (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.

    (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.

20. The Tribunal considered whether the First Applicant had given or caused to be given a bogus document or information that was false or misleading in a material particular by reference to the definitions in and requirements of the applicable provisions in the Migration Act 1958 (Cth) (the Act) and Regulations. It referred to the approach taken by the Full Court of the Federal Court in Trivedi in observing that PIC 4020 refers to information that is false “in the sense of purposely untrue”; that it is not necessary for the decision-maker to conclude that the applicant was aware the information was purposely untrue for the criterion to be engaged; but that “an element of fraud or deception by some person is necessary to attract the operation of the provision”.

21. The Tribunal found that the First Applicant had given information that was false or misleading in a material particular as defined in PIC 4020(5) and that the Applicants accepted this to be the case; that the particulars before it indicated the Second Applicant had been convicted of stealing on 3 September 2009 in Manly Local Court and fined and that the Applicants did not disclose this on the visa application form.

22. The Tribunal considered whether the omission of the information as to the conviction was inadvertent or whether there was an element of fraud or deception as necessary to attract the operation of the provision as discussed in Trivedi.  It referred to the evidence that the Second Applicant had been charged, had to appear before the Local Court for sentencing, pleaded guilty and paid a fine and court costs and that the First Applicant had indicated that she knew he was convicted, even though she did not go to the police station or the Local Court.

23. The Tribunal stated that it had difficulty accepting that (even if the application form was completed with the receptionist of the migration agent) knowing that her husband had been convicted of a crime, had been to the police station and appeared at the Local Court to pay the money and that this was a significant matter, the First Applicant would innocently or by mistake or inadvertently not refer to this conviction in the application form, particularly as the Second Applicant was with the First Applicant at the time they filled in the form.

24. The Tribunal considered the First Applicant’s explanation that she did not know the law, but also her evidence that she knew her husband was convicted.  It did not accept that not knowing the law would result in the First Applicant not knowing the meaning of her husband having been convicted.  It also considered the response that as the fine had already been paid they did not disclose the information on the application form, but had difficulty accepting this explanation on the basis that the Second Applicant knew he was convicted and knew he had pleaded guilty.  It also did not accept that because the First Applicant’s grandfather was ill and she was upset or depressed, she would inadvertently, unintentionally or by mistake answer “no” to the question in the visa application form relating to past criminal convictions. 

25. The Tribunal accepted that the Applicants had provided details of the conviction and how the incident occurred, but had regard to the fact that this was only after it was raised by the Department. 

26. The Tribunal concluded (at paragraph 33):

    Having considered the applicant’s explanation and the available evidence, the Tribunal concludes that the applicant deliberately did not disclose the past criminal conviction of the second named applicant.  It does not accept she did not do so inadvertently, innocently, unintentionally or by mistake.  Therefore, the Tribunal is satisfied that there was an element of deception by the applicant, as required by Trivedi’s case. 

27. The Tribunal found the First Applicant did not meet PIC 4020(1).

28. The Tribunal then considered whether the requirements of PIC 4020(1) should be waived under cl.4020(4), in particular whether there were compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident, or New Zealand citizen.  It had regard to the law in that respect, the absence of a statutory definition of “compelling or compassionate circumstances”, policy factors and the Explanatory Statement to the legislation that introduced PIC 4020.  The Tribunal observed that the circumstances in issue were not the interests of the visa applicant as such, but rather those affecting Australia’s interests or those of an Australian or New Zealand citizen or Australian permanent resident. 

29. The Tribunal had regard to the First Applicant’s evidence that she wanted to finish her studies in Australia, to her claims about the death of family members in the earthquake in Nepal and to her claim that she could not return home because of the visa problems.  It was not satisfied that these matters were sufficient to amount to compelling circumstances affecting Australia’s interests, or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident, or eligible New Zealand citizen that would justify the grant of the visa. 

30. The Tribunal accepted that the First Applicant would be adversely affected by the refusal of the visa, but noted that cl.4020(4) was specifically worded to require that the compassionate or compelling circumstances were those affecting Australia or an Australian citizen or permanent resident or eligible New Zealand citizen and not the Applicant.

31. Having considered the Applicants’ case, the Tribunal was not satisfied that singularly or cumulatively there were compassionate or compelling circumstances with the necessary Australian or New Zealand nexus. It was not satisfied that the requirements of PIC 4020 should be waived and found that the First Applicant did not satisfy that requirement for the purposes of the criterion in cl.572.224 in Schedule 2 to the Regulations.

32. The Tribunal found that the Second Applicant had applied as a member of the First Applicant’s family unit and that he could not satisfy the requirements for the grant of the visa in cl.572.322(b).

33. The Applicants sought review by application filed in this court on 21 March 2016.  There is one ground in the application.  It is that the Tribunal failed to consider all the facts and law relating to the application.  The ground contains what purport to be two “particulars” followed by three dot points.  In fact, these “particulars” and the dot points are each partial quotes (with slight paraphrases in some respect) of extracts from the first and/or second Tribunal decisions.  They do not particularise any asserted failure to consider “all the facts and the law”.

1. In oral submissions today the Applicants were not able to explain the ground of review beyond, in essence, reiterating that they had made a mistake that was innocent and unintentional. They raised issues in relation to their personal circumstances and the impact on them of the “mistake”.

2. The Applicants did not identify any fact or law that the Tribunal had not taken into account.  They had filed affidavits in which they each repeated the claims that they made to the Department and the Tribunal in relation to their personal circumstances.  I asked the Applicants whether it was intended to be contended that there was something in this affidavit material that had been put before the Tribunal, but not considered by it.  They confirmed that this was not the case.  In effect, although they did not put it in these terms, the Applicants seek impermissible merits review in asking the Court to consider whether or not the non-disclosure of the conviction was innocent and unintentional and whether there ought to be a waiver of the requirements of PIC 4020.  As I endeavoured to explain to them, this is not the role of the Court in these proceedings.  These affidavits are of no apparent relevance to these proceedings and are inadmissible. 

3. Insofar as the particulars to the ground of review set out extracts from the Tribunal decisions, these extracts merely record either the first or second Tribunal’s statement of the law and/or the facts and aspects of the first Tribunal’s conclusion.  If issue is intended to be taken with the decision of the first Tribunal this is misconceived.  It is the second Tribunal decision that is the subject of those proceedings. 

4. The first particular includes a quote from the first Tribunal decision and a partial quote of what was said in the second Tribunal’s updated (correct) explanation of the relevant law. 

5. The second particular refers to the first Tribunal’s discussion of the fact of the conviction and the non-disclosure and its finding that the information was false or misleading in a material particular, being relevant to the criteria the Minister may consider when making a decision on the application.  This is not indicative of error on the part of the second Tribunal.

6. The first dot point quotes the second Tribunal (correctly) describing the requirements of PIC 4020(1).  The next dot point quotes the second Tribunal’s account of the law in light of Trivedi (which is not indicative of error) and the final dot point repeats the quote from the first Tribunal decision in relation to the requirements of PIC 4020. 

7. On the material before the Court it has not been established that the second Tribunal failed to consider information in a manner constituting jurisdictional error or that it failed to consider or apply the law.  This ground is not made out.

8. The Applicants also raised issues in relation to their present personal circumstances.  This does not go to show that the Tribunal made a jurisdictional error in its decision or procedures on the material before it at the time of its decision.  The Tribunal understood their concerns and accepted that they would be adversely affected by the refusal of the visa, but, as indicated, had regard to the limited scope of the waiver provision.  In that respect the Tribunal’s approach was consistent with the remarks of Buchanan J in Trivedi at [32] referring to the “narrow and exceptional circumstances necessary to waive” the requirements of PIC 4020 as well as the serious consequences that flow from its application (and see Trivedi at [49]). The Tribunal understood and applied such limited terms. It has not been established that it fell into legal error in the manner in which it approached the waiver provision.

9. Insofar as there was a suggestion by the Applicants that the Tribunal failed to have regard to their explanation for the non-disclosure, the Tribunal recorded that explanation, considered the reasons provided, explained why it had difficulty accepting such explanation as establishing inadvertence, innocence or mistake and reached a conclusion (in the manner set out above) that there was an element of deception by the First Applicant.

10. In particular, the Tribunal considered the Applicants’ submission that the non-disclosure was an accident and addressed it in its findings.  It was not satisfied in that respect. 

11. In oral submissions in reply the First Applicant also pointed to the fact that when the matter was first the subject of judicial review it had been remitted by consent.  She suggested that it was the “same” case and so should again be remitted. 

12. Insofar as this claim was put on the basis of a belief that the Court had a discretion on humanitarian grounds to remit the matter or to take the Applicants’ personal circumstances into account, that is not the case.  The remittal by consent was on the basis of the first Tribunal’s failure to consider, as required by the decision of the Full Court in Trivedi, whether the information that was provided had the necessary quality of purposeful falsity.  However, it is apparent that in the decision that is the subject of these proceedings the Tribunal understood and applied what was said by the Full Court of the Federal Court in Trivedi (see in particular the remarks of Buchanan J at [33] and [49] in relation to the need for an element of fraud or deception to attract the operation of PIC 4020 and his Honour’s general remarks at [49] about PIC 4020 being directed to information or documents that are purposely untrue).

13. The Tribunal clearly understood and raised with the Applicants that what was critical in this respect was whether the non-disclosure of the conviction was inadvertent or whether there was an element of fraud or deception.  It considered the Applicants’ evidence and explanation in that respect, but reached a conclusion, for reasons set out above, that the First Applicant “deliberately did not disclose the past criminal conviction”.  The Tribunal did not accept that she failed to disclose her husband’s past criminal conviction “inadvertently, innocently, unintentionally or by mistake”.  Hence, it was satisfied that there was an element of deception by the First Applicant as required by Trivedi.  There is nothing to indicate that the Tribunal failed to have regard to the principles in Trivedi in a manner constituting jurisdictional error. 

14. More generally, insofar as the Applicants disagree with the Tribunal’s conclusion in that respect, such conclusion was reasonably open to the Tribunal on the material before it for the reasons which it gave.  Its approach in this respect is not indicative of jurisdictional error.  There was nothing illogical or irrational or legally unreasonable in the Tribunal’s approach to the information before it or its fact finding in that respect, notwithstanding that the Applicants disagree with the Tribunal’s conclusion (see Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1).

15. As no jurisdictional error has been established, the application must be dismissed.

16. The Applicants have been unsuccessful. It is appropriate that they pay the costs of the First Respondent. The amount sought is less than the amount provided for as a guide in the Federal Circuit Court Rules. It is appropriate in light of the nature of this and other similar matters.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  26 September 2017