Singh v Minister for Home Affairs
[2019] FCA 612
•17 April 2019
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Home Affairs [2019] FCA 612
Appeal from: Singh v Minister for Immigration and Anor [2018] FCCA 1494 File number: VID 733 of 2018 Judge: BROMBERG J Date of judgment: 17 April 2019 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court – Migration Regulations 1994 (Cth) Sch 4 cl 4013 (“PIC 4013”) – whether the primary judge failed to identify jurisdictional error in the Tribunal’s decision to reject the existence of compassionate and compelling circumstances sufficient to meet the requirements of PIC4013(1)(b) – whether the primary judge failed to identify jurisdictional error in the Tribunal’s disregarding of the evidence and documentation submitted to it by the appellant – Migration Act 1958 (Cth) s 359A – whether the Tribunal failed to provide the appellant with clear particulars of any information that it considers would be the reason or part of the reason for affirming the decision under review – application dismissed. Legislation: Migration Act 1958 (Cth) s 359A
Migration Regulations 1994 (Cth) Sch 2, cl 457.325, Sch 4 cl 4013
Date of hearing: 17 April 2019 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Counsel for the Appellant: The Appellant appeared in person assisted by an interpreter Solicitor for the First Respondent: Mr C Hibbard of Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
VID 733 of 2018 BETWEEN: GURINDER SINGH
Appellant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
17 APRIL 2019
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.On or before a date four months from today, the appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMBERG J:
This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 8 June 2018 and published as Singh v Minister for Immigration and Anor [2018] FCCA 1494. By that judgment, the primary judge dismissed the appellant’s application for judicial review of a decision made by the second respondent (“Tribunal”), to affirm a decision made by a delegate of the first respondent (“Minister”) not to grant the applicant a Temporary Business Entry (Class UC) visa (“visa”).
The applicant first arrived in August of 2009 as the holder of a student visa, with his wife being the primary visa holder. At the time that this matter was before the Tribunal, the appellant was married and had one child. His wife was sponsored by an Australian business and worked as a cook and was holding a subclass 457 visa. The appellant had no relatives in Australia who are Australian citizens, permanent residents or eligible New Zealand citizens.
The appellant applied for the visa on 8 May 2014. As the Tribunal recounts in its reasons, the appellant made no claims in respect of the primary criteria for the grant of a subclass 457 visa, but his application was assessed against the secondary criteria for the grant of such a visa. In making that assessment, the Minister’s delegate refused to grant the visa on the basis that public interest criteria 4013 (“PIC 4013”), for the purpose of meeting cl 457.325 of Sch 2 of the Migration Regulations 1994 (Cth) (“Regulations”) was not met because the appellant was affected by a “risk factor” as his student visa had been cancelled on 9 May 2014.
In its decision, the Tribunal identified in broad terms the way in which PIC 4013 operates. Relevantly, at [17]-[19] the Tribunal said this:
[17]Broadly speaking, PIC 4013 defines particular circumstances where an applicant is affected by a relevant ‘risk factor’. The defined ‘risk factors’ in PIC 4013 include circumstances where a person is affected by a risk factor if a visa previously held by the person was cancelled under section 116 or 128 of the Act because the person was found by Immigration to have worked without authority.
[18]Where an applicant is affected by a ‘risk factor’ as set out in PIC 4013(2), he or she is required to satisfy one of two alternate criteria set out in PIC 4013(1) to meet PIC 4013 as a whole. PIC 4013(1)(a) requires that the application has been made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in subclause that relates to the applicant.
[19]Alternatively, PIC 4013(1)(b) requires that the decision maker is satisfied that, in the particular case, compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen, justify granting the visa within 3 years after the after the [sic] cancellation or determination.
Before the Tribunal, the appellant conceded that he is affected by a “risk factor” specified in PIC 4013 because of his student visa having been cancelled. As the Tribunal correctly identified at [11] of its reasons, the remaining issue before the Tribunal was to determine whether any of the exceptions in PIC 4013(1) had application.
The Tribunal considered (at [21]) paragraph (a) of PIC 4013(1) which provides for an exception where the application for the visa is made more than three years after the cancelation of the visa or the determination of the Minister. The Tribunal determined that that exception had no application to the appellant’s case.
The Tribunal then turned to consider whether the exception in PIC 4013(1)(b) was satisfied. The Tribunal’s reasons for concluding that that exception was not satisfied are reasonably brief and it is convenient to set them out in full. At [22]-[30] of its reasons, the Tribunal said this (errors in original):
[22]The term ‘compelling’ is not defined in the legislation. The ordinary dictionary definitions of these words state that ‘compelling’ means ‘to force or drive, especially to a course of action’ or to ‘bring about moral necessity’. ‘Compassionate’ means ‘circumstances that invoke sympathy or pity’.
[23]The applicant stated that his ‘uncle’ and his son will be adversely affected if he is required to depart Australia. As noted above, his ‘uncle’ is a person who is not related to the applicant, who does not have support from his own family and who attends the same Sikh temple. The applicant provides ‘uncle’ with moral support.
[24]He further stated that his own son will be affected. I explained to the applicant that I can only take into consideration circumstances that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand. He conceded that his son is not an Australian citizen or permanent resident.
[25]The argument presented to the Department was that Mr Singh’s wife is employed as a Cook at Chawla’s restaurant and the restaurant will ‘lose money’ if the secondary applicant is not granted subclass 457 visa as the primary applicant will have to leave the country if the secondary applicant is not granted a visa.
[26]I have also considered letter from Group Messengers Pty Ltd dated 31 July 2015 and not that the letter does not state if and how the applicant’s employer will be affected if he is no longer able to work for the company.
[27]I have had regard to Departmental policy pertaining to the discretion to grant a visa during the ‘exclusion period’. The Tribunal is not bound by the policy, and recognises that the examples offered in the policy are neither determinative or exhaustive of the circumstances in which the discretion may be exercised.
[28]I consider that the language adopted in the Regulations of ‘compelling’ and ‘compassionate’ require a degree of gravity that is not demonstrated in the evidence before me in order to disregard the operation of the effective ‘exclusion period’ that is intended to apply in the ordinary case where a person is the subject of a ‘risk factor, and thereby justifying the grant of the visa during the 3 year period.
[29]Whilst I accept that the applicant’s wife may have necessary skills required by her employer and that her employer would be inconvenienced to a certain extent if he had to find another person or persons capable of performing the same job, the Tribunal notes that the cost to the business of recruiting, training and replacing a staff member was an ordinary aspect of the operation of almost all business which occurred on an ongoing basis.
[30]I considered all the relevant circumstances both individually and cumulatively. I am not satisfied that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa within 3 years after the cancellation or determination. I am not satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa to the applicant within 3 years after the cancellation or determination. Therefore, I am not satisfied that the applicant meets PIC 4013(1)(b) and PIC 4013.
I should also observe, by reference to what the Tribunal said at [8] of its reasons, that the appellant’s representative at the hearing invited the Tribunal to take oral evidence from Mr Liam Slattery. He was a representative of Group Messengers Pty Ltd, a former employer of the appellant. The Tribunal inquired about the relevancy of any proposed evidence that Mr Slattery proposed to give, and it was indicated to the Tribunal that Mr Slattery may give evidence as to why the appellant’s student visa should not have been cancelled. The Tribunal did not receive any evidence from Mr Slattery.
As I have stated already, the primary judge dismissed the appellant’s application for judicial review of the Tribunal’s decision.
In his appeal to this Court, the appellant relies on three grounds of appeal, the detail of which I will recount shortly. First, I should say that the appellant appeared on the appeal unrepresented but assisted by an interpreter. He was invited to make submissions after being informed of the nature of the Court’s task on this appeal. He stated that he had been nervous and upset when before the primary judge. He also recounted his frustration at the lack of opportunity given to him to contest the cancellation of his student visa in May of 2014. As I understand it from the material before me, that visa was cancelled on the basis that the appellant had exceeded the maximum hours of work permitted to have been worked by him in any particular week. In that context, I understand the appellant to have been submitting that he had a basis for challenging the basis upon which his student visa had been cancelled and that, on behalf of his former employer, Mr Slattery could have assisted him.
I return then to the appellant’s grounds of appeal. The appellant’s first ground is as follows (errors in original):
I had a compassionate and compelling circumstances for not meeting the conditions 4013 of schedule 4 of Migration Regulations pertaining to visa cancellation and Federal Circuit Court failed to act and dismissed my case disallowing me any opportunity to defend my case.
In its terms, the ground calls for a merits review of the appellant’s application for a visa, a task that I am not permitted to perform. I will, however, regard ground 1 as an allegation that the primary judge failed to identify jurisdictional error in the Tribunal’s decision to reject the existence of compassionate and compelling circumstances sufficient to meet the requirements of PIC 4013(1)(b). The difficulty for the appellant is that no particulars in support of that ground are given. In simple terms, I have no idea why it is that the appellant says that the Tribunal wrongly came to the view that there were no compassionate and or compelling circumstances.
The primary judge assessed the Tribunal’s application of PIC 4013(1)(b) at [28]-[30] of his Honour’s judgment and found no error, let alone jurisdictional error. No jurisdictional error is apparent to me. On that basis, I am unable to discern any appellable error on the part of the primary judge. Ground 1 must therefore be rejected.
I turn then to ground 2. The appellant’s second ground states (errors in original):
Federal Circuit incorrectly disregarded the evidence and documentation submitted pertaining to satisfy the criteria set out in 457.223.
This ground seems to presume that it was the primary judge’s task to assess the evidence and the documentation relied upon by the appellant. The task of the primary judge, by reference to the appellant’s grounds of review, was to judicially review the task performed by the Tribunal. Given that the appellant is unrepresented, I will presume that what this ground really intends to raise is a complaint that the primary judge failed to identify jurisdictional error in the Tribunal disregarding the evidence and documentation submitted to it.
The reference in the ground to cl 457.223 seems to be mistaken. The Tribunal only considered cl 457.325 of Sch 2 of the Regulations which is the clause that relevantly required the appellant to satisfy PIC 4013. Again, no particulars of this ground have been given. I have no idea what evidence or documentation the appellant suggests was disregarded. What the appellant is probably saying here is that insufficient regard, that is, insufficient weight, was given by the Tribunal to the evidence upon which he relied. However, the weight to be attached to that evidence was a matter for the Tribunal and not a matter for me. I can see no basis for the view that the Tribunal’s exercise was tainted by jurisdictional error. It follows that ground 2 must also be rejected.
I then turn to ground 3 which is in the following terms (errors in original):
The Federal Circuit failed that AAT did not apply section 359A of migration act, disallowing procedural fairness.
As I understand this ground, what is being asserted is that the Tribunal failed to apply s 359A of the Migration Act 1958 (Cth). Broadly speaking and without reference to the qualifications included in s 359A, that provision obliges the Tribunal to give 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 that is under review. If by this ground the appellant seeks to contend that the Tribunal failed to give him clear particulars of the kind referred to in s 359A(1), no particulars of that failure have been provided. Again, I do not know what it is that the appellant wants to say he should have been informed about by the Tribunal but was not.
Because ground 3 refers to a denial of procedural fairness and because in his submissions made to me today the appellant referred to Mr Slattery and the circumstances of Mr Slattery attending at the hearing but not being heard, I will also consider whether jurisdictional error occurred in the Tribunal not allowing Mr Slattery to give evidence before it. That matter was dealt with by the primary judge at [32] of his Honour’s reasons. His Honour said and, in my view, correctly so, that as the Tribunal’s reasons explained, Mr Slattery’s evidence was not relevant to any issue on the review because it related to the circumstances surrounding the cancellation of the student visa previously held by the appellant. For the same reasons as those relied upon by the primary judge, I do not consider that there was jurisdictional error in the Tribunal not hearing from Mr Slattery.
Unfortunately for the appellant, it follows that his appeal must be dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 1 May 2019
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