Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FedCFamC2G 109
•26 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 109
File number(s): SYG 655 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 26 October 2021 Catchwords: MIGRATION – review of Administrative Appeals Tribunal decision – refusal of an employer nomination visa – applicant submitting a bogus document – Tribunal refusing to waive Public Interest Criterion 4020 – Tribunal conflating consideration of compassionate and compelling circumstances and the exercise of its discretion – jurisdictional error conceded – materiality of error established – refusal of relief due to futility considered – declaration made Legislation: Migration Act 1958 (Cth) ss 5, 349
Migration Regulations 1994 (Cth)
Cases cited: Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235
Kim v Minister for Immigration and Citizenship & Anor (2008) 167 FCR 578
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169
Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1091
Division: Division 2 General Federal Law Number of paragraphs: 59 Date of hearing: 30 September 2021 Place: Sydney Counsel for the Applicants: Mr N Poynder Counsel for the Respondents: Ms K Hooper Solicitors for the Respondents: Sparke Helmore ORDERS
SYG 655 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: HARTAJ SINGH
First Applicant
RAVINDER KAUR
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
26 OCTOBER 2021
THE COURT DECLARES THAT:
1.The Administrative Appeals Tribunal (Tribunal) erred in its application of the waiver provision in Public Interest Criterion 4020 (PIC 4020) in Schedule 4 to the Migration Regulations 1994 (Cth):
(a)the Tribunal was required by PIC 4020(4) to, first, inquire as to whether there were "compelling circumstances" within the meaning of PIC 4020(4)(a) or "compassionate or compelling circumstances" within the meaning of PIC 4020(4)(b). Only then was it entitled to consider those circumstances, weighed against the severity of the first applicant's fraudulent conduct in the application of the overall discretion in PIC 4020(4) to waive the requirements of PIC 4020(1) and (2);
(b)the Tribunal conflated the two inquiries, by from the outset weighing the evidence of “compelling circumstances" and "compassionate or compelling circumstances" against the severity of the first applicant's fraudulent conduct in the application of the overall discretion to waive the requirements of PIC 4020(1) and (2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 13 January 2020. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicants regional employer nomination (subclass 187) visas. There were two applicants before the Tribunal, who are the principal applicant (Mr Singh) and his partner who applied as a member of his family group. Both applicants are parties in the proceedings before the Court.
The following statement of background facts is derived from the submissions of the parties.
Mr Singh is a citizen of India who, on 19 November 2015, applied for a subclass 187 visa in the Direct Entry stream under the occupation of "Mixed Crop Farmer". He was nominated by Musa Contractors Pty Ltd (Musa), which operates a banana farm in Tully, North Queensland.[1]
[1] Court Book (CB) 1-71
It is a requirement for a subclass 187 visa in the Direct Entry stream that, as at the time of application, the applicant must have “competent English”.[2] “Competent English” is relevantly defined in regulation 1.15C(1)(a) and (c) as achieving a specified score in a language test specified by the Minister in a relevant instrument. The relevant instrument (IMMI 15/005) included the International English Language Test System (IELTS) as a prescribed language test.
[2] see Migration Regulations 1994 (Cth) (Regulations), Schedule 2, subclause 187.232(a)
It is also a requirement for a subclass 187 visa that the applicant satisfy Public Interest Criterion 4020 (PIC 4020).[3] PIC 4020(1) relevantly provides that there be no evidence before the Minister that the applicant has given, or caused to be given, to the Minister a “bogus document” in relation to the application for the visa.
[3] see clause 187.213(1)
Mr Singh provided with his application an IELTS Test Report Form (IELTS Report) dated 27 February 2014[4] which was subsequently referred by the Minister’s Department for verification. IELTS advised the Minister’s Department that the photograph on the IELTS Report did not match the photograph IELTS had for the candidate who sat the test.[5]
[4] CB 35
[5] CB 133
On 21 September 2016 the Minister’s Department sent a letter to Mr Singh inviting him to comment on the adverse information in relation to the IELTS Report.[6] In response, on 18 October 2016 Mr Singh’s migration agent sent an email with a statement from Mr Singh admitting that he was not the person who had sat the IELTS test in India, and that he had paid a third party $2,000 to sit the exam for him.[7] The agent contended that there were “compassionate and compelling circumstances” affecting the interests of an Australian citizen which, under PIC 4020(4), would enable the Minister’s Department to waive the requirements of PIC 4020(1). The agent, and Mr Singh in his statement, referred to his work as a farm manager with Musa, managing 20-30 employees and 300 acres of bananas. It was claimed that Mr Singh’s role was critical to the operation of Musa.
[6] CB 132-136
[7] CB 137-141
On 10 February 2017 the delegate refused Mr Singh’s application for the visa on the grounds that he had given, or caused to be given to the Minister, a bogus document; namely, the IELTS Report.[8] In relation to the waiver, the delegate was not satisfied that Musa had demonstrated that Mr Singh was integral to the survival of the business, and that the serious nature of the fraudulent activity outweighed the circumstances raised for consideration of a waiver.[9]
[8] CB 157-164
[9] CB 161-162
On 2 March 2017 the applicants through their agent applied to the Tribunal for review of the delegate’s decision.[10] On 27 November 2019 the agent sent an email to the Tribunal[11] attaching various documents. These relevantly included:
(a)a letter dated 26 November 2019 from the accountant for Musa, Chris Norton,[12] claiming that Mr Singh was “[i]ntegral to the company’s success and current operations”. It was noted that, in addition to running his own crew of workers, Mr Singh was in charge of the company's chemical management system, organising the purchase and storage of fertilisers and chemical supplies in accordance with the Queensland regulations, and that he predominantly carried out the training of “compliant handling and application” for the company. The letter referred to “Panama Disease TR4” having impacted the North Queensland banana industry since 2015, and said that Mr Singh has become the designated responsible person for quarantine management within the company. It said that the importance of the quarantine management position had grown over recent years and was now a requirement set by all the company's clients, and it said that Mr Singh was the only person within the company qualified to perform this work. It was claimed that:
The many specialized skills performed by the applicant are almost impossible to replace in the restricted labour market available to the company. Accordingly we regard his retention as vital to the survival of the company and its business.
(b)a letter dated 26 November 2019 from the Director of Musa, Rana Churchill,[13] describing Mr Singh as the senior Farm Manager and “an integral part of our operations” since he had started in August 2013. The letter referred to Mr Singh’s role in quarantine management of the Panama disease, “which has devastated many banana farms over the last couple of years in North Queensland”. The letter stated that Mr Singh “is the only person on the farm that is qualified to do this work as part of his farm management responsibilities” and that, without Mr Singh, “the success of the business will be reduced, as he is of vital importance to the company now and going into the future. There will also be the loss of employment to other citizens of Australia if Hartaj's visa is not granted”; and
(c)a letter dated 27 November 2019 from Aaron Russell, a Senior Biosecurity Officer for Biosecurity Queensland at the Queensland Department of Agriculture and Fisheries.[14] Mr Russell referred to Mr Singh’s “good understanding of banana horticultural and biosecurity practices”, and his roles, including quarantine management for the Panama disease, which “has the potential to devastate the Australian Banana Industry should it spread within the major banana production areas”. Mr Russell stated that “Biosecurity Queensland is encouraging all banana farmers to implement effective on-farm biosecurity measures to prevent the spread of the disease”, and he noted his understanding that Mr Singh was the only person at the company qualified to carry out pest and disease identification and management “and he is vital to the ongoing success of the company”.
[10] CB 165-166
[11] CB 180
[12] CB 183
[13] CB 184-185
[14] CB 186
The Tribunal hearing took place on 4 December 2019 and evidence was given by the applicants and Mr Sunny Singh, supervisor, on behalf of Musa.[15]
[15] CB 199. The audio recording or transcript of the hearing is not in evidence
Following the hearing, on 10 December 2019 the agent sent an email to the Tribunal with submissions and attaching evidence of a Designated Area Migration Agreement (DAMA) for regional Far North Queensland,[16] which included the designation of two additional ANZSCO[17] positions of Farm Inspector and Farm Supervisor. In the submissions the agent stated that the DAMA “adds weight to the importance of granting the waiver… [as t]he Government has recognised that there is a shortage of farm positions”. It was also noted that an English language concession was now available for overseas workers applying for a visa under the new DAMA, with a lower score required in the IELTS Test.
[16] CB 206-214
[17] Australian and New Zealand Standard Classification of Occupations
The decision of the Tribunal
Under the heading, “[h]as the applicant given, or caused to be given a bogus document, or information that is false or misleading in [a] material particular?”, the Tribunal at [27]-[29] noted Mr Singh’s admission to having provided the false IELTS Report, because he had “a problem in English” and was afraid that if he sat the test himself he would not pass. It was noted at [31] that “there was neither apology nor any admission by the applicant of any wrongdoing, only the representative’s concession that the test report was false”.[18]
[18] at the trial before me counsel for the applicants pointed out that Mr Singh had in fact apologised at [7] of his statement at CB 140
The Tribunal at [32] found that the provision of the IELTS Report purported to have been, but was not, issued in respect of Mr Singh, and that it therefore met the definition of “bogus document” in s 5(1) of the Migration Act 1958 (Cth) (Migration Act). At [33] it found that the provision of the document by Mr Singh was deliberate in the sense of intentionally deceptive and fraudulent within the sense discussed by the Full Federal Court in Trivedi v Minister for Immigrationand Border Protection.[19]
[19] (2014) 220 FCR 169
Under the heading, “[s]hould the requirements of PIC 4020(1) or (2) be waived?”, the Tribunal at [35]-[37] set out the requirements for a waiver and some of the case law, including the “two-staged inquiry” referred to in Kaur v Minister for Immigration and Border Protection.[20]
[20] (2017) 256 FCR 235
At [39]-[40] the Tribunal set out the case presented for Mr Singh, and at [41] it referred to the “two-step inquiry”, in an apparent reference to Kaur.
The Tribunal at [42]-[43] set out the evidence provided by the agent in relation to the “compassionate and compelling circumstances” affecting Musa and its employees, noting at [45]-[46] that Mr Singh was seeking to engage both legs of PIC 4020(4), namely:
(a)“compelling circumstances that affect the interests of Australia”; and
(b)“compassionate or compelling circumstances that affect the interests of an Australian citizen, [or] an Australian permanent resident”.
From [47] the Tribunal dealt in turn with each of the documents provided in support of the waiver:
(a)in relation to the letter from the accountant, the Tribunal at [51] appreciated the opinion of the accountant as to the state of the workforce in far north Queensland; then stated:
The Tribunal however must also have regard to the seriousness of the applicant’s conduct in intentionally producing a fraudulent document in order to obtain permanent residency and to weigh that against the commercial expediency of his continued employment in a specific role. The Tribunal in these circumstances places significant weight on the applicant’s conduct as against the more generalised statements from the accountant, stressing a commercial imperative.
(applicants’ emphasis retained)
(a)in relation to the letter from Musa, the Tribunal at [59] considered that the circumstances in the letter from Musa were “not so sufficiently compelling, when set alongside the fact of the applicant’s fraud” (applicants’ emphasis retained); and
(b)in relation to the Queensland Government letter about biosecurity management, the Tribunal at [65] considered it to be difficult to assess the degree of any threat which might be caused were Mr Singh’s employment terminated through failure to achieve permanent residency, then went on to state at [66]:
The issue to be decided here is what weight should be attached to this submission, generalised as it is and taking into account that it is referring to things which might happen, as opposed to things which are happening concerning the threat caused by TR4. In determining whether this evidence is “compelling” so as to affect the interests of Australia those considerations must be weighed against other factors, such as the integrity of the visa program and the seriousness of the intentional fraud undertaken by the applicant.
(applicants’ emphasis retained)
In relation to the first leg, PIC 4020(4)(a), being relevantly “compelling circumstances that affect the interests of Australia”, the Tribunal found, at [67]:
The Tribunal does not find compelling the view nor find as a result of the letter from the accountant, the company director, and the senior officer that the entire weight of protection against the spread of banana disease on the banana farm falls solely on the applicant. It is an enterprise run with the assistance of a number of employees, all of whom work at the site and who are managed not only by the applicant but by the store manager and Sunny and the other managers themselves, as well as the senior officer who visits the site for the purpose of biosecurity checks.
In relation to the second leg, PIC 4020(4)(b), being “compassionate or compelling circumstances that affect the interests of an Australian citizen, [or] an Australian permanent resident”, the Tribunal at [69] stated that there was no evidence that the farm business was unstable or likely to fail, rather:
The evidence is that it is operating successfully with a number of employees and that the applicant is not able to personally supervise 300 acres of farmland on his own every day to ensure the disease is not transferred through soil contamination. The evidence from the manager, Sunny Singh, is that constant supervision is not merely by the applicant but by other managers including him.
At [70] the Tribunal stated:
Adopting the reference to “compelling” as set out above, the Tribunal finds it is not satisfied and does not feel compelled in the sense of driven irresistibly to the conclusion in this instance that the possibility of one or other of an Australian citizen employee, or permanent resident employee losing their employment is evident on the objective facts and so as to displace the fraudulent conduct of the applicant in the weight of consideration.
(applicants’ emphasis retained)
The Tribunal concluded at [71]-[72] as follows:
The Tribunal has some empathy for an employer in a regional part of Australia which finds difficulty in attracting skilled employees, but is also mindful of the need to support the integrity of the visa program and the requirement to meet stated necessary criteria for the grant of permanent residency, without intentionally fraudulent behaviour by an applicant who is otherwise unable to meet the criteria.
The Tribunal finds in this instance that the weight of evidence is against the application of the waiver provisions, and although the Tribunal gives some weight to the concerns expressed by the witnesses, the apportionment of weight is ultimately substantially affected by the applicant’s immigration fraud and what he embarked on deliberately in an attempt to obtain permanent residency.
(applicants’ emphasis retained)
Therefore, at [73],[21] the Tribunal found that PIC 4020(4) was not enlivened by compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen or Australian permanent resident.
[21] CB 229
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 17 March 2020. The applicants required an extension of time for that application, which was consented to by the Minister. I granted the extension of time at the trial on 30 September 2021. The ground in the substantive application is:
The second respondent (the Tribunal) erred in its application of the waiver provision in Public Interest Criterion 4020 (PIC 4020) in Schedule 4 to the Migration Regulations 1994 (Cth)
Particulars
(a)The Tribunal was required by PIC 4020(4) to, firstly, inquire as to whether there were "compelling circumstances" within the meaning of PIC 4020(4)(a) and "compassionate or compelling circumstances" within the meaning of PIC 4020(4)(b). Only then was it entitled to consider those circumstances, weighed against the severity of the applicant's fraudulent conduct in the application of the overall discretion in PIC 4020(4) to waive the requirements of PIC 4020(1) and (2): Kaur v Minister for [Immigration and] Border Protection (2017) 256 FCR 235 at 244 [26].
(b)The Tribunal conflated the two inquiries, by from the outset weighing the evidence of “compelling circumstances" and "compassionate or compelling circumstances" against the severity of the first applicant's fraudulent conduct in the application of the overall discretion to waive the requirements of PIC 4020(1) and (2).
Having dealt with the extension of time, the only evidence before me is the court book filed on 27 April 2020. Both the applicants and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial.
CONSIDERATION
The parties agree that the decision of the Tribunal discloses error.
In Kaur the Full Federal Court stated at 244 [26]:
PIC4020(4) sets up a two-staged inquiry. It obliges the decision maker first to be satisfied that there are “compelling circumstances”. Only then may the decision maker go on to consider those circumstances in the application of his or her discretion. The appellants’ argument conflates these inquiries. They submit that upon the involvement of any child in a visa application to which PIC4020 applies, the existence of the Convention comes into consideration as a compelling circumstance warranting the balancing exercise of the considerations involved. In our view, that does not represent a correct interpretation of the regulation. PIC4020(4)(a) imposes a filter, whereby the decision maker must consider that there exist “compelling” (that is, “forceful”; Paduano v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 211; (2005) 143 FCR 204 at [32]-[37] per Crennan J) circumstances. In the present case, the Tribunal applied that filter at [82] to reject the appellants’ submissions. We see no error in that approach.
(applicants’ emphasis retained)
In the present case, having found that PIC 4020(1) had been engaged by the provision of a bogus document, the Tribunal was then required to set up the two-staged inquiry, namely:
(a)whether there were compelling circumstances that affected the interests of Australia, or compassionate or compelling circumstances that affected the interests of an Australian citizen/resident; and
(b)then (and only then) if there were such circumstances, whether these justified the granting of the visa.
Here, the Tribunal conflated the two inquiries in the same manner as the appellant in Kaur. It did this in the heading at [35], by going directly to the second stage of the inquiry, asking “[s]hould the requirements of PIC 4020(1) or (2) be waived?” This heading omitted the necessary first stage of the inquiry; namely, whether there existed any compelling or compassionate, or compelling circumstances.
Under this heading the Tribunal asked itself whether there were “compelling circumstances” or “compassionate or compelling circumstances”, but in answering this question it repeatedly referred to Mr Singh’s fraudulent conduct, in a manner that derogated from the compassionate or compelling nature of the circumstances:[22]
(a)in relation to the letter from the accountant, the Tribunal at [51] placed “significant weight on the applicant’s conduct as against the more generalised statements from the accountant, stressing a commercial imperative”;
(b)in relation to the letter from Musa, the Tribunal at [59] found that the circumstances set out in that letter were “not so sufficiently compelling, when set alongside the fact of the applicant’s fraud”; and
(c)in relation to evidence of the effect of the Panama disease, the Tribunal at [66] stated that, in determining whether that evidence was “compelling” it “must be weighed against other factors, such as the integrity of the visa program and the seriousness of the intentional fraud undertaken by the applicant”.
[22] applicants’ emphasis retained
A similar approach was taken in relation to evidence that there were compassionate or compelling circumstances affecting the interests of the citizens and permanent residents who, it was claimed, would likely lose their jobs if the farm were to fail by reason of Mr Singh’s removal from Australia. Once again, at [70], the Tribunal conflated the two stages, finding that it did not feel compelled, “so as to displace the fraudulent conduct of the applicant in the weight of consideration”. Again, Mr Singh’s fraudulent conduct was treated as a factor going towards whether there were compassionate or compelling circumstances, where, properly, it ought not to have been considered until the second stage, being the consideration of the waiver.
The Tribunal should have asked itself:
(a)do the claimed circumstances amount to compelling/compassionate or compelling circumstances?” Then (and only then), if “yes”,
(b)when weighed against the conduct of the applicant, do the circumstances justify the granting of the visa?[23]
[23] see also Wu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1091 at [12] (Judge Lucev)
The finding by the Tribunal that the circumstances did not amount to compelling/compassionate or compelling circumstances was “infected” by erroneously taking into account Mr Singh’s fraudulent conduct at the first stage. Mr Singh’s conduct was only relevant to the second stage, being whether the circumstances justified the granting of the visa.
The Minister concedes error. The Minister’s concession is in the following terms:
It is accepted that the Tribunal, despite setting out the Kaur v Minister for Immigration (2017) 256 FCR 235 two-step test, has not applied it.
The paragraphs extracted above, particularly where emphasised, show that the Tribunal balanced the claimed compelling/compassionate circumstances with the nature and seriousness of the fraud and other matters going to discretion (such as the applicant’s English language skill) in arriving at a finding that there were no compassionate or compelling circumstances. That is, the Tribunal rolled the discretionary step of its analysis (step 2) into the compelling/compassionate circumstances step (step 1).
In Kaur, the relevant ground of appeal was that the Tribunal erred by not taking into account the best interests of a child in accordance with the Convention on the Rights of the Child, as a discretionary consideration in relation to waiver of PIC 4020: see 242-243[20]. The Court rejected that argument, including because (at 244[26]):
PIC4020(4) sets up a two-staged inquiry. It obliges the decision-maker first to be satisfied that there are “compelling circumstances”. Only then may the decision-maker go on to consider those circumstances in the application of his or her discretion. The appellants’ argument conflates these inquiries. They submit that upon the involvement of any child in a visa application to which PIC4020 applies, the existence of the Convention comes into consideration as a compelling circumstance warranting the balancing exercise of the considerations involved. In our view, that does not represent a correct interpretation of the regulation. PIC4020(4)(a) imposes a filter, whereby the decision-maker must consider that there exist “compelling” (that is, “forceful”; Paduano v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 204 at [32]-[37] per Crennan J) circumstances. In the present case, the Tribunal applied that filter at [82] to reject the appellants’ submissions. We see no error in that approach.
Singh v Minister for Home Affairs [2020] FCAFC 7 at [55]-[56] upheld the correctness of Kaur.
The Minister contends, however, that the error made by the Tribunal was not material and hence does not go to jurisdiction. Further, the Minister contends that even if a material error was made, the Court should withhold relief in the exercise of discretion on the basis of futility.
Materiality
Minister’s contentions
Mr Singh bears the onus of proving the materiality of the Tribunal’s error as a question of ordinary fact.[24] The question is whether Mr Singh can prove that the Tribunal’s error deprived him of the possibility of a successful outcome.[25]
[24] Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 at 433[4], 444-445[44]-[46], 445-446[49] per Bell, Gageler and Keane JJ; MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 per Kiefel CJ, Gageler, Keane and Gleeson JJ
[25] SZMTA at 468[127]
Mr Singh cannot discharge his onus of proving materiality.
The Tribunal’s reasons indicate that if it had approached its task correctly, it would still have found the seriousness of the fraud was such that the requirements of PIC 4020 should not be waived.
That is, Mr Singh would necessary have failed at the discretionary step (step 2).
Resolution
In essence, the Minister contends that the error made by the Tribunal was not material because, if it had not conflated the question of compelling and compassionate circumstances with the exercise of discretion, the outcome would be the same. The Minister submits that, properly read, the Tribunal in effect skipped over the issue of whether the circumstances established compassionate and compelling circumstances and went directly to the exercise of discretion. That is certainly arguable but it is also arguable that the Tribunal rejected the claim of compassionate and compelling circumstances on the basis of its view of the integrity of the visa system, which relates to the exercise of discretion only.
In either case, in my view, it cannot be said that the outcome would necessarily have been the same if the Tribunal had separated the questions of compassionate and compelling circumstances and the exercise of discretion. If, hypothetically, the Tribunal had properly determined that there were circumstances that were not only compassionate but also compelling, it would have found that these were circumstances which “drove” a favourable decision or were particularly strong. It cannot be assumed that the public policy considerations in the Tribunal’s mind would necessarily have tipped the balance against the applicants. Further, in my view, a finding that the proper exercise of discretion would necessarily result in the same outcome tends to promote pre-judgement.
If, on the alternative interpretation, the Tribunal simply failed to exercise its discretion in accordance with law, it cannot be said that the exercise of a discretion which was at law, unexercised, would necessarily result in the same outcome.
I accept, for the purposes of considering materiality, that the Court must deal with the Tribunal’s decision at the time it was made. To the extent that the Tribunal’s decision is unclear, then it cannot be said that the outcome would be the same on a redetermination. To the extent that the decision was clear (in as much as the Tribunal was indicating that public policy considerations overrode anything Mr Singh had put before it) then the absence of a proper exercise of the required two step process risks pre-judgement.
In either case, I find that the error made by the Tribunal was material.
Should relief be withheld in the exercise of discretion?
The parties agree that, at the time he applied for the visa, Mr Singh was required to demonstrate competent English. He had no done so and was unable to do so because he had not sat the requisite test within the prescribed time period before application. It follows that it would be futile to remit the matter to the Tribunal because the outcome would necessarily be the same. The Tribunal would be unable to grant the visa in the absence of proof of competent English. In this regard I agree with and adopt the submissions of the Minister.
The primary criteria for the subclass 187 visa “must be satisfied at the time a decision is made on the application”.[26]
[26] clause 187.2 Note
Clause 187.232 (Direct Entry stream) required:[27]
At the time of application, the applicant:
(a) had competent English; or …
[27] this clause did not change between the date of visa application and date of Tribunal decision
Competent English was (and is) defined by regulation 1.15C.
That is, at the time of the decision, a decision-maker must be satisfied that at the time of the application (ie 19 November 2015) Mr Singh had competent English.
On remittal, even if a “forward-looking approach” is adopted, it is no more than fanciful and mere speculation that Mr Singh could produce such evidence. I find that Mr Singh will be unable to satisfy the time of decision criterion requiring that he had competent English as at 19 November 2015, as defined by regulation 1.15C and prescribed by IMMI 15/005. His IELTS test is conceded to be bogus and he gave evidence at the Tribunal hearing that he had a problem with English and did not sit the test because he was afraid he would not pass.[28] There is no evidence that Mr Sigh can now produce an English language test score satisfying IMMI 15/005 relating to his English language ability as at 2015.
[28] at CB 222[28]
I accept that a further issue might be said to arise in relation to futility, being whether there is some utility for Mr Singh in remitting the application to the Tribunal for reconsideration in accordance with the law, with respect to the impact of the PIC 4020 finding. That is, even if, as here, Mr Singh cannot be granted the visa, is there potential utility in relation to the PIC 4020 finding?
The answer to that question is “no”.
First, it is the delegate’s decision that causes the PIC 4020 bar to commence. The affirmation of a decision by the Tribunal leaves the delegate’s original refusal decision on foot and operative: Kim v Minister for Immigration and Citizenship & Anor.[29]
[29] (2008) 167 FCR 578 at 583[23]
The delegate’s decision was made on 10 February 2017. Therefore, the three year bar in PIC 4020(2)(a) has already expired.
Even if there might have been some conceivable utility for the applicants in having the Tribunal waive PIC 4020(1)(a) pursuant to PIC 4020(4), and remit the matter to the delegate with a direction that the whole of clause 187.213 was met,[30] the PIC 4020 bar has already ended. Therefore a fresh visa application could be made.
[30] see regulation 4.15, s 349(2)(c), and Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510
Further, subject to my conclusion at [58], because Mr Singh conceded that PIC 4020(1) was not met (by providing the bogus IELTS test) this is also not a case in which there is any general reputational benefit to be achieved by the Court granting declaratory relief.
I accept that the grant of relief in the nature of constitutional writs would be futile.
In these circumstances, it would be inappropriate for the Court to grant relief in the form of the constitutional writs of certiorari and mandamus.
Mr Singh’s options at this point are to either apply offshore for a visa or to seek Ministerial intervention. In either case, Mr Singh would, notwithstanding the lack of a general reputational benefit, in my view be assisted by a declaration making clear the legal position concerning the decision of the Tribunal to affirm the decision of the delegate. I will grant declaratory relief.
I will hear the parties as to costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 26 October 2021
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