Singh v Minister for Immigration

[2016] FCCA 667

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 667

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Skilled (Residence) (Class VB) visa – whether the Tribunal correctly applied PIC4020 – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285
Mala v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 556
Singh v Minister for Immigration and Border Protection [2016] FCA 156

First Applicant: DALBIR SINGH

Second Applicant: KOMAL DEEP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3211 of 2015

Judgment of: Judge Street

Hearing date: 30 March 2016

Date of Last Submission: 30 March 2016

Delivered at: Sydney

Delivered on: 30 March 2016

REPRESENTATION

Solicitors for the Applicant: Mr N Dobbie
Dobbie & Devine Immigration Lawyers

Solicitors for the First Respondent: Ms K Hooper
DLA Piper

ORDERS

1. The application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $4000

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3211 of 2015

DALBIR SINGH

First Applicant

KOMAL DEEP

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 29 October 2015 affirming a decision of the delegate not to grant the applicant a Skilled (Residence) (Class VB) visa. The applicant is a citizen of India and was found by the Tribunal to have provided a bogus document in relation to an IELTS test by having an imposter sit for the test. It was in those circumstances that the Tribunal found the requirements of PIC 4020(1) had not been satisfied.

2. The Tribunal then turned to the question of whether the requirement should be waived under PIC 4020(4).  The Tribunal identified the consideration of whether there were compelling circumstances that affect the interests of Australia, or whether there are compassionate or compelling circumstances affecting the interests of an Australian citizen or an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa.  Having identified the statutory considerations, the Tribunal noted that it was not satisfied that those requirements should be waived for the following reasons.   The Tribunal then set out in paras.44 to 53 the reasons in support of the adverse finding. 

3. The grounds of the application are as follows:

   1. The Tribunal misinterpreted the applicable law and or failed to apply the applicable law or misapplied the law to the facts

   Particulars

   A. The Tribunal constructively failed to exercise its jurisdiction by failing to conduct the review required by law because it either misinterpreted the applicable law and or failed to apply the applicable law or misapplied the law to the facts:

   (i) On 19 October 2012, the Applicants applied for a Class VB visa: subclass 885 ('the visa application'). The First Applicant was required to satisfy clause 885.224 of Schedule 2 of the Migration Regulations 1994 ('the regulations'). That criterion required the First Applicant to meet public interest criterion 4020. A delegate of the First Respondent found that the First Applicant did not meet public interest criterion 4020 and refused the visa application on 7 January 2014.

   (ii) The Applicants sought review of the delegate's decision, which was affirmed by the then Migration Review Tribunal on 31 March 2014. The Applicants sought judicial review of the Tribunal's decision on 28 April 2014. On 29 September 2014, by consent, the Court quashed the Tribunal's decision and ordered the Tribunal to determine the review application according to law. On 29 October 2015, the Administrative Appeals Tribunal affirmed the delegate's decision.

   (iii) The Tribunal found that the First Applicant had provided a bogus document in relation to the visa application. The Tribunal subsequently concluded that the First Applicant did not satisfy public interest criterion 4020(1)(a). Public interest criterion 4020( 1) relevantly provided:

   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 kernel of the argument advanced by Mr Dobbie, the solicitor for the applicant, was that the Tribunal had conflated the proper consideration of the statutory provision under PIC 4020(4)(b) by taking into account the fraud of the applicant and the importance of the integrity of Australia’s visa system.  The solicitor for the applicant contended that on a fair reading of the Tribunal’s decision, the Tribunal had taken into account the fraud and the integrity of the visa system in determining whether there were compassionate or compelling circumstances, which was not a relevant consideration to the first step in application of the legislative provision and accordingly a jurisdictional error. 

5. I accept the force of the underlying argument by the solicitor for the applicant that if the Tribunal had conflated the concept of compassionate or compelling circumstances under PIC 4020(4)(b) with the existence of the fraud or the importance of the integrity of Australia’s visa system, that would give rise to a misconstruction of the provision and as such a jurisdictional error.  The real issue in the present case is, however, whether the Tribunal’s reasons should be read in a manner that gives rise to such an error.

6. The solicitor for the applicant took the Court to a number of authorities in relation to the meaning of compelling circumstances: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 at [289]; Singh v Minister for Immigration and Border Protection [2016] FCA 156 at [20]-[24], as well as referring, albeit in a different context, to the concept of compassionate circumstances as picked up in the discussion in Mala v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 556 at [21]-[24].

7. The Tribunal’s reasons are not to be read with a keen eye for error, and on a fair reading the Tribunal did not conflate the consideration under PIC4020(4)(b) with the existence of the fraud and the integrity of Australia’s visa system in determining whether there were compassionate or compelling circumstances.  The solicitor for the applicant accepted that in relation to whether the power should be exercised to waive the requirements it could not be said that the fraud or the integrity of Australia’s visa system was an irrelevant consideration.

8. The Court finds that the Tribunal took into account the fraud and the integrity of Australia’s visa system in the context of the consideration of whether the condition should be waived in the circumstances identified by the applicant.  I accept the submission of the respondent that the reference to “sufficiently” and “sufficient” in paras.50 and 51 reinforce that the Tribunal was considering whether the power to waive should be exercised in the context of the reference to the fraud and the integrity of Australia’s visa system. 

9. That construction was also supported by the language used in para.52 referring to:

   Therefore, the requirements of clause 4020(1) should not be waived.

10. Accordingly, the Court does not accept that the Tribunal misinterpreted the applicable law or failed to apply the applicable law or misapplied the applicable law to the facts in relation to the Public Interest Criterion 4020(4).  There is no jurisdictional error as alleged in the application. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2016