Thakur & Ors v Minister
[2020] FCCA 1038
•8 May 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| THAKUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1038 |
| Catchwords: MIGRATION – Regional Employer Nomination (subclass 187) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal considered the compassionate and compelling circumstances advanced by the applicants – jurisdictional error established – writs issued. |
| Legislation: Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), cl.187.213 of sch.2, PIC 4020 of sch.4 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Kaur v Minister for Immigration & Border Protection [2017] FCAFC 184 Minister for Immigration & Border Protection v Maioha [2018] FCAFC 216 |
| First Applicant: | VIKRAM SINGH THAKUR |
| Second Applicant: | NEETU SHAHI |
| Third Applicant: | AVNI THAKUR |
| Fourth Applicant: | AARAV SINGH THAKUR |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 315 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 24 April 2020 |
| Date of Last Submission: | 24 April 2020 |
| Delivered at: | Perth |
| Delivered on: | 8 May 2020 |
REPRESENTATION
| Applicants: | The first applicant appeared in person and on behalf of the other applicants |
| Counsel for the First Respondent: | Mr A Gerrard |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision dated 23 July 2019.
A writ of mandamus issue directed to the second respondent requiring it to reconsider and determine the applicants’ application for review according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 315 of 2019
| VIKRAM SINGH THAKUR |
First Applicant
| NEETU SHAHI |
Second Applicant
| AVNI THAKUR |
Third Applicant
| AARAV THAKUR |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicants in this matter are citizens of India. The first applicant and the second applicant are husband and wife respectively. The third applicant is their daughter and the fourth applicant is their son.
On 27 November 2015, the first applicant applied for a Regional Employer Nomination (subclass 187) visa (the “visa”) (Court Book (“CB”) 1-24). The first applicant was the primary applicant and the other applicants were identified as members of the family unit. The applicants were assisted by a migration agent.
In the visa application, the first applicant indicated that his nominated occupation was as a “cook”. He further indicated that he had undertaken an English Language test on 18 October 2014 and was deemed “competent” (the “English Test”)(CB 16-17). The applicants also provided a large number of supporting documents (CB 25-180).
Between 20 July and 1 August 2016, the first respondent’s (the “Minister”) Department engaged in exchanges with the relevant English test providers. Ultimately, it was disclosed that the first applicant had not sat an English Test on 18 October 2014 (CB 212-245).
On 5 September 2016, the Department wrote to the applicants asking them to comment on information it had received that the first applicant had not sat the English Test as claimed. That correspondence referred the applicants to Public Interest Criterion 4020 (PIC 4020) in sch.4 of the Migration Regulations 1994 (Cth) (the “Regulations”) and noted that it appeared that the applicants had provided a “bogus document” (CB 246-249).
On 5 October 2016, the applicants responded to the invitation to comment (CB 251-254). Attached to that correspondence was a letter from the relevant test provider indicating that the first applicant had sat the English Test on 14 October 2014 (CB 254) (the “Supporting Letter”). The Department made inquiries of the individual who had authored the Supporting Letter provided by the applicants. The individual confirmed that she had not sent or signed any Supporting Letter (CB 255).
On 11 October 2016, the Minister’s Department invited the applicants to comment on the information it had received that another bogus document had been provided (CB 288). On 17 October 2016, the applicants responded with a letter from the first applicant’s employer outlining the “compelling circumstances” for the grant of the visa (CB 261-263).
On 21 October 2016, the delegate refused to grant the visa to the applicants (CB 270-285). The delegate found that the applicants did not satisfy PIC 4020.
The applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) on 27 October 2016 for review of the delegate’s decision (CB 306-308). They were again represented by a migration agent.
On 29 April 2019, the applicants’ migration agent provided written submissions to the Tribunal (CB 334-303). The submissions stated that, as the third applicant (the daughter) was an Australia citizen, there were compassionate and compelling circumstances to grant the visa.
The first applicant attended a hearing before the Tribunal on 30 April 2019 (CB 408).
The applicants’ migration agent provided further submissions and supporting documents to the Tribunal on 1 May 2019 (CB 409-414) and again on 28 June 2019 (CB 415-417).
On 23 July 2019, the Tribunal affirmed the decision to refuse the applicants the visa (CB 421-429).
On 18 August 2019, the applicants applied for judicial review of the Tribunal’s decision in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”).
Tribunal’s Decision and Legislative Framework
The Tribunal’s decision is 9 pages long and spans 47 paragraphs. Two pages extract the relevant legislative provisions. The Minister’s written submissions dated 9 April 2020 (at [16]-[21]) accurately summarise the Tribunal’s decision. The Court adopts that summary as its own. With some additions, it provides as follows.
The Tribunal began by giving an overview of the background to the application. Relevantly, the Tribunal noted as follows:
2.With his application Mr Thakur provided a copy of an English language test (IELTS test) Repot Form. This was found by the delegate of the Minister to be a bogus document. A letter provided by Mr Thakur purporting to be from an administrative officer at the issuing body was also found by the delegate to be bogus.
The Tribunal then identified that the relevant issue before it was whether the first applicant met PIC 4020 (as required by cl.187.213 of the Regulations) – specifically, whether the first applicant had provided a bogus document and, if so, whether the requirements in PIC 4020(1) should be waived because of compelling or compassionate reasons that nonetheless justified granting the visa (at [7]-[8]).
At [9]-[10], the Tribunal summarised the legal principles relating to bogus documents and PIC 4020.
Relevantly, cl.187.213(1) of the Regulations requires that at the time of the decision, the primary applicant (the first applicant):
…satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4020 and 4021.
PIC 4020 then 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.
The Tribunal referenced the evidence in relation to the bogus documents provided by the first applicant as follows:
11.In this case, Mr Thakur provided an IELTS (International English Language Test System) test result with his application for a subclass 187 visa. The officer of the department attempted to verify his test result, but was unable to do so visa the on-line system. The officer wrote to the issuing institution and was advised there was no record of the applicant having sat the test on this date.
12.The delegate wrote to Mr Thakur and invited him to comment on this information. In response, the Mr Thakur provided a letter purporting to be from an administrative officer at IDP, which states he sat the test on 18 October 2014 and technical problems at IELTS resulted in his test information not being recorded on the IELTS system. The delegate contacted the person who was named as the author of this letter, who states she did not write this letter.
13.Mr Thakur said he went to the University of Western Australia, but person he asked to see was away, and he was advised to come back in two weeks. He returned after two weeks and asked for documents to verify he had sat the test, but was told this type of document is not provided. He was asked to return on other occasions, and was eventually given a letter which she placed in an envelope which he took to his migration agent.
14.Mr Thakur said when he was told by his agent that the author of the letter said she did not write the letter he went back to the University but the staff member was not there and someone else had replaced her. He said he thought because he had been going to the University pleading for a letter to provide proof to immigration it was possible through having empathy for his situation the staff member gave him the letter.
15.Mr Thakur denied producing the letter himself, and said his English was not that good. The letter provided is notable for its grammatical and typographical errors. For example, the letter opens with:
“We investigate about IELTS test online result. There is a problem browser showing a errors. We trying to open more browsers have a some problem, we never seen your result.”
16.Mr Thakur ultimately stated he has no proof that the documents he provided; being the IELTS test result and the letter from IDP are not bogus and he accepts his mistake.
17.The Tribunal finds there is evidence that Mr Thakur has provide a bogus document to the Department; the first being evidence that he provided counterfeit IELTS test result and the second being evidence that the letter from IDP which purports to have been, but was not, issued in respect of him.
18.This was compounded by his sworn oral evidence to the Tribunal, in which he said he sat an IELTS test on 18 October 2014. This was put to him again after he conferred with his representative, at which time he again said he sat the test on 18 October 2014. There is no evidence before the Tribunal to show this is the case. There is evidence to the contrary.
The Tribunal then concluded as follows in relation to these documents:
19.As a result I find there is evidence that Mr Thakur has given bogus documents to an officer being the IELTS test report form and the letter the letter from IDP. I find there is evidence that the IELTS test report form is bogus, in that it could not be verified by the issuing office, and evidence that that letter from IDP purports to have been, but was not, issued in respect of him. This is because the author of the letter advised she had not written this letter.
The Tribunal noted that PIC 4020 could be waived if certain circumstances exist, as follows:
21.According to PIC 4020(4), the requirements of PIC 4020(1) 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 Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP [2017] FCAFC 184.
22.The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
23.In this case, it was not suggested that there are compelling circumstances that affect the interests of Australia, and the focus is therefore whether there are compelling or circumstances that affect the interests of an Australia citizen, Australian permanent resident or eligible New Zealand citizen.
The Tribunal continued:
Who are the Australian citizens or permanent residents affected?
24.There being no eligible New Zealand citizens affected by the decision, it was submitted that the Australian citizens or permanent residents affected by the decision are Mr Thakur’s daughter, who is eleven years old, and Mr Thakur’s brother and his family.
25.Mr Thakur states his daughter was born in Australia, and now qualifies for Australian citizenship. At the time of the hearing he provided a receipt of an application for a declaration that Avril is an Australian citizen, together with decisions of the Federal Court that state temporary absences from Australia do not prevent the person being regarded as ordinarily resident in Australia, nor does the parent’s status as holding a temporary visa. It was submitted that as a result, his daughter is an Australian permanent resident or citizen and that there are compelling and compassionate circumstances relating to his daughter. After the hearing, Mr Thakur provided an email stating his daughter’s application for Australian citizenship was approved on 27 June 2019. The Tribunal accepts his daughter is an Australian citizen.
26.Mr Thakur has another child who is not an Australian citizen. Other Australian citizens or permanent resident or eligible New Zealand citizens who may be affected by the decision are his older brother and his family.
The Tribunal then summarised the submissions made on behalf of the applicants’ (both pre and post hearing), the other information that had been provided and the oral evidence of the first applicant at the Tribunal hearing as follows:
Are there compassionate or compelling circumstances affecting the Australian citizen or permanent residents?
27.It is submitted that, with the exception of absences of between six weeks and one year, Mr Thakur’s daughter has lived her whole life in Australia and has attended school in Australia. She is accustomed to school and the language in Australia and prefers Australia. Her paternal uncle is an Australian citizen, and she has cousins in Australia. It is stated that as Mr Thakur is 50 years old it will be difficult for him to get a house and a job in India and financially provide for the family. It is submitted they will not be able to integrate into the Indian school system as their fluency in Hindi is not to the required level.
28.It is further submitted the Convention on the Rights of the Child requires his daughter’s best interests are considered, and this will be for her to continue her education in Australia.
29.Mr Thakur gave oral evidence that both children have asthma for which they use an inhaler. He said this is available in India, but he it is not of the same quality as the medication in Australia.
30.Mr Thakur said he does not have family in India, but his wife’s parents are in India. When the family returns to India they stay with his wife’s parents. His wife has a brother in India, and he has an elder brother in India but he has not seen him for several years, and does not know his whereabouts.
31.Mr Thakur said that at home the family speaks in English 95% of the time. He said his English fluency is such that everyday dealings he can manage in English, but not at a high level. His wife’s first language is Hindi. He said her English fluency is better than his because she deals with matters relating to school. He said his daughter speaks a little Hindi, and he said she does not speak much in Hindi.
32.He said there was no other reason the family could not return to India. There is no suggestion Mr Thakur’s daughter would be separated from her parents if the visa is not granted, as they will return to India with their children.
33.After the hearing, Mr Thakur provided further written submissions that his daughter will have difficulty integrating into the Indian educational system as she has been immersed in the Australian culture and lifestyle and speaks little Hindi. It was that there are concerns about crimes committed against women in India, and attached an article on violence against women from the Times of India, sourced through the internet was attached. He again raises his daughter’s health and states that as pollution levels are high in India this will impact on her as she suffers a respiratory disease. It is stated that although health care is provided by the government, private health is generally paid for by families, and refers to Wikipedia in support of this submission. It is stated the family will find it difficult to meet these expenses if Mr Thakur is unable to find a suitable job in India due to his age.
The Tribunal then analysed this evidence as follows:
34.In looking to whether there are compelling or compassionate circumstances affecting the interests of an Australian citizen, the Tribunal accepts that Mr Thakur’s daughter is an Australian citizen. It is mindful that Article 3 of the Convention on the Rights of the Child states that in all actions concerning children, the best interests of the child shall be the primary consideration.
35.The Tribunal accepts that returning to India will cause Mr Thakur’s daughter some hardship in integrating into Indian culture, however this hardship will not be insurmountable given her maternal grandparents live in India, she has spent lengthy periods of time in India, and has at least some understanding of the language as the first language of both parents is Hindi. There is no suggestion she would be separated from her parents or brother. Her parents are concerned about her safety as a female living in India, however there is nothing to suggest that they would not be capable of providing for her safety and security. She may experience some distress being separated from her paternal uncle and his family in Australia. While I accept Mr Thakur’s daughter may experience some hardship in returning to India, I do not consider this amounts to compelling or compassionate circumstances.
36.I am also not satisfied that there are compelling or compassionate circumstances in relation to Mr Thakur’s brother and his family. While they may experience some distress at being separated from close family members, there is no information before me that would result in a finding that this would cause them distress to the extent that I would be satisfied that there are compelling or compassionate circumstances that affect their interests.
As the Tribunal was not satisfied that there were compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident, the Tribunal was not satisfied that the requirements of PIC 4020 should be waived (at [37]).
While it was unnecessary for the Tribunal to decide whether there were compassionate and compelling circumstances that justified the grant of the visa (as there were no compassionate and compelling circumstances), the Tribunal in any event set out the evidence the first applicant had provided and the evidence that was put to him (at [39]-[44]).
The Tribunal affirmed the decision not to grant the visa as it was determined that the first applicant did not meet PIC 4020 and this, in turn, meant that the first applicant did not meet cl.187.213 of the Regulations (at [45]). As the first applicant did not meet the primary criteria, the members of the family unit could not be granted the visa.
Proceedings before this Court
The applicants’ application for judicial review contained two grounds of review as follows:
1. The Tribunal’s decision was tainted by jurisdictional error when it failed to have regard to a key factor and the consequences of it when deciding not to waive Public Interest Criteria 4020(1) pursuant to PIC 4020(4) of the Migration Regulations on ground of compassionate or compelling circumstances. The Tribunal’s failure to do so amounted to unreasonableness in arriving at the decision.
Particulars
• The key factor which the Tribunal failed to take into account was Vikram Singh Thakur’s age (he will be 50 in October 2019) and the very high likelihood of him not securing a suitable job in India to sustain the family, in particular his daughter, Avni who is an Australian citizen.
• Failure to consider the inability of the applicants to afford the healthcare for the Australian child as a consequence of his likely unemployment in India and the fact that there is no social welfare or any such safety net for the unemployed
2. The Tribunal fell into jurisdictional error, when in considering compelling and compassionate circumstances affecting the interests of Avni, an Australian citizen, it failed to adequately ask itself the question as to what will be in the best interest of the child under the Convention on the Rights of the Child
Particulars
The Tribunal failed to address how the best interests of Avni, who was born in Australia and had, since birth, been living and studying in Australia under the Australian education system in the English language, would have her best interests better served by living in India. The Tribunal failed to take into account the foreseeable impact on the child in not having access to an equivalent system of education, standard of health care and the relative safety and security provided by Australia as compared to India.
The first applicant provided an affidavit affirmed 15 August 2019 which provided as follows:
…
3. I am dissatisfied with the decision and the grounds on which I seek a review are stated in the application. Following are the pertinent facts and background of the case:
• I do not wish to dispute the finding of the first and second respondents that I provided bogus documents when I applied for the permanent residence visa pursuant to subclass 187 of the Migration Regulations on 27 November 2015.
• As a consequence of the above-mentioned finding by the delegate of the first respondent in its decision dated 21 October 2016, the visa application was refused. I was barred under Public Interest Criteria PIC 4020 from being granted any other visa for a period of 3 years.
• When the second respondent reviewed the application under a merits review process, I submitted that the waiver provision PIC 4020(4) be considered on the basis that there were compassionate or compelling circumstances affecting the interests of an Australian citizen that justified the grant of the visa. The Australian citizen in this case, is Avni, who is my daughter born in Australia in January 2008. She is an Australian citizen and is now 11 years old. She has been living and schooling in Australia under the state education system in Western Australia. She is now in Year 6. I also have another child, Aarav who is also born in Australia. He is now almost 6 years old. If the visa is not granted, my family and I will have to return to India. My wife and I have lived in Australia since 2007.
• We do not have any house in India. At this age (I will be 50 years old in October 2019), it will be extremely difficult to get a suitable job in India. I will not be able to financially provide for my wife and children. There is no social welfare or any form of financial assistance from the state for unemployed persons in India. The children, Avni and Aarav have been studying under the Australian educational system. They will not be able to integrate into the Indian system as they do not speak Hindi at the level of fluency required in India. My wife and I consider Australia as our permanent home. Our two children have not lived in any country or any extended period of time. They have not been to India for the last 4.5 years.
• The impact on the children will be devastating as they will have to be uprooted from familiar surroundings in Australia in which they have been growing up and studying and be sent to India. Avni is 11 years old and her formative years have been spent in Australia where she is being schooled and where she has her group of friends and first cousins and paternal uncle and aunt.
4.Under the United Nations Convention on the Rights of the Child 1989, it is clear all signatory countries (including Australia) have the child’s best interest in any decision that affect the child’s right and ensure they are provided every opportunity to develop and reach their full potential. I would say that the children’s best interest can only be best protected if they continue their education in Australia. This will ensure they have access to all opportunities and reach their full potential in Australia. Such opportunities are not readily available in India. The children will not be able to continue to live in Australia if my wife and I are not permitted to continue to live in Australia.
5. The second respondent refused to waive the requirements under PIC 4020(4). I believe that the second respondent has made jurisdictional errors in coming to the decision.
On 22 April 2020, the first applicant emailed a further document to Chambers titled “submissions”. Although this document was not formally filed and was provided after the time in which the applicants were granted to provide submissions, the Court granted leave for the applicant to rely on these submissions. Counsel for the Minister advised the Court that he had also received these submissions and did not object to them being assessed by the Court.
Other than the documents referred to above, the Court references a Court Book numbering 435 pages (marked as Exhibit 1) and an outline of written submissions filed by the Minister on 9 April 2020.
This matter was heard on 24 April 2020 by videoconference. The applicants did not have legal representation. The first applicant appeared on behalf of the other applicants and was assisted by a Hindi interpreter. The Court confirmed with him that he had a copy of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the first applicant the opportunity to elaborate on, and further particularise, the grounds of review in the application for judicial review. This is now the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the first applicant, the Court explained to him what it could and could not do. It noted that its role was limited to determining whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained to the first applicant that this Court cannot review the merits of the Tribunal’s decision or grant him the visa his family seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the Court asked the first applicant to explain what he thought the Tribunal “did wrong”. In effect, the first applicant stated that he wished to stay in Australia until his daughter is 18 so he can look after her. He stated that he will leave after that time.
Unfortunately, these oral submissions do not address the sole issue before this Court – that is, whether the Tribunal fell into jurisdictional error. Rather, they seek impermissible merits review.
As for the first applicant’s remaining submissions and his grounds of review, the Court will address these in the consideration that follows.
Ground 1
Submissions
In his written submission dated 22 April 2020, the first applicant stated that the Tribunal failed to address the effect of the first applicant’s age on his ability to obtain employment and the effect that this would have on his daughter – noting, relevantly, that his daughter was asthmatic. The applicant argued that the cost of medical expenses in India was not addressed. He stated that the Tribunal failed to properly consider these “important factors” and it was not something that could just be “glazed over”.
In relation to ground 1, the Minister submitted:
23.Through ground 1, the applicants assert that the Tribunal failed to have regard to 2 factors: Mr Thakur’s age, and its impact upon his likelihood of securing a job in India, and, the inability of the applicants to provide for the healthcare of the child due to the likely unemployment of Mr Thakur and the absence of a social security safety net.
24.However, the Minister submits that it is clear that the Tribunal expressly considered these 2 matters. At [27] the Tribunal noted that the applicant had claimed that as Mr Thakur is 50 years old it will be difficult for him to get a house and a job in India and financially provide for the family. Furthermore, at [33] the Tribunal expressly referred to the applicant’s submission that although health care is provided by the government, private health is generally paid by families and the family would find it difficult to meet these expenses if Mr Thakur is unable to find a suitable job in India due to his age.
25.Whilst there are no express findings made in respect of these claims, in the Minister’s submission they are fairly subsumed by the overall finding that Mr Thakur’s daughter will not suffer insurmountable hardship. That is because the claims were solely directed towards the effect that Mr Thakur’s difficulties in finding employment in India will have upon the daughter and it is clear that the Tribunal considered the claims.
Consideration
By the first ground, the applicants raise what they say are two categories of jurisdictional error: “a failure to consider” and “unreasonableness”.
On 29 April 2019, the following submission was made to the Tribunal:
…At this age (Vikram will be 50 years old in- October 2019), it will be extremely difficult to get a, suitable job in India. He will not be able to financially provide for his wife and children. There is no social welfare or any form of financial assistance for the unemployed persons in India…
On 1 May 2019, the applicants submitted as follows:
• Health Issue of the Child
She suffers from asthma which is being managed through the use of an inhaler. The pollution levels in India are extremely high and this will impact on persons suffering from a respiratory disease. Though health care is provided by the state government, in practice, private healthcare sector is responsible for the majority of healthcare in India, and most healthcare expenses are paid out of pocket by patients and their families, rather than through insurance. - Wikipedia
Avni’s parents will find it difficult to meet such expenses if Vikram is not able to find a suitable job in India, taking account of his age.
The applicants allege in ground 1 that the Tribunal did not take this submission into account.
The Court agrees.
The Tribunal stated as follows:
27. It is submitted that, with the exception of absences of between six weeks and one year, Mr Thakur’s daughter has lived her whole life in Australia and has attended school in Australia. She is accustomed to school and the language in Australia and prefers Australia. Her paternal uncle is an Australian citizen, and she has cousins in Australia. It is stated that as Mr Thakur is 50 years old it will be difficult for him to get a house and a job in India and financially provide for the family. It is submitted they will not be able to integrate into the Indian school system as their fluency in Hindi is not to the required level.
…
29.Mr Thakur gave oral evidence that both children have asthma for which they use an inhaler. He said this is available in India, but he it is not of the same quality as the medication in Australia.
…
33. After the hearing, Mr Thakur provided further written submissions that his daughter will have difficulty integrating into the Indian educational system as she has been immersed in the Australian culture and lifestyle and speaks little Hindi. It was that there are concerns about crimes committed against women in India, and attached an article on violence against women from the Times of India, sourced through the internet was attached. He again raises his daughter’s health and states that as pollution levels are high in India this will impact on her as she suffers a respiratory disease. It is stated that although health care is provided by the government, private health is generally paid for by families, and refers to Wikipedia in support of this submission. It is stated the family will find it difficult to meet these expenses if Mr Thakur is unable to find a suitable job in India due to his age.
(Emphasis added)
At [35], the Tribunal then states:
The Tribunal accepts that returning to India will cause Mr Thakur’s daughter some hardship in integrating into Indian culture, however this hardship will not be insurmountable given her maternal grandparents live in India, she has spent lengthy periods of time in India, and has at least some understanding of the language as the first language of both parents is Hindi. There is no suggestion she would be separated from her parents or brother. Her parents are concerned about her safety as a female living in India, however there is nothing to suggest that they would not be capable of providing for her safety and security. She may experience some distress being separated from her paternal uncle and his family in Australia. While I accept Mr Thakur’s daughter may experience some hardship in returning to India, I do not consider this amounts to compelling or compassionate circumstances.
The Court does not accept the Minister’s submission that the Tribunal’s consideration of the first applicant’s age and any associated impact and effects was “fairly subsumed” by the overall finding that the third applicant will not suffer insurmountable hardship.
While the Tribunal referred to the relevant claim at [27] and [33], a mere reference to a claim or a statement that it has been considered does not immediately suggest that the matter was, in fact, “considered” in the way that it should have been: Minister for Immigration & Border Protection v Maioha [2018] FCAFC 216 at [45].
Here, the applicants relied on three particular matters in relation to their claim that there were compelling circumstances specific to their daughter that would justify granting the visa:
a)the third applicant would face difficulty integrating into the Indian culture;
b)there were safety concerns for girls living in India; and
c)it would be difficult for the first applicant to obtain employment (because of his age) and he may not be able to provide for the family. Of note, the third applicant’s health issues may require out of pocket expenses which the applicants would possibly be unable to meet.
At [35], the Tribunal addressed the first two of these matters but remained silent on the third. The Court does not accept that the need to make a finding can be “subsumed” into a blanket statement that the third applicant would not face hardship. The Tribunal expressly addressed the other two matters raised by the applicants (i.e., that the third applicant would face difficulty integrating and the safety concerns for girls in India) but was completely silent on the third issue of concern (which was, arguably, the most critical given the father’s age and his concerns about his employment prospects). This issue required critically focussed engagement and, in the Court’s view, a forensic finding similar to that made in relation to the other two claims. That was not provided here.
The Court is also not satisfied that the statement “there is nothing to suggest that they would not be capable of providing for her safety and security” addressed the claim as advanced. Contextually, this conclusion references the statement that the “parents are concerned about her safety as a female living in India”. It does not address or in any way link to concerns about “health care or medications” resulting from the father’s age and employment prospects.
The Court is not satisfied that the Tribunal properly considered the applicants’ claim that the first applicant’s age would make it hard for him to find employment and that this, in turn, would have an effect on his daughter’s health issues. It simply cannot be said that the finding that the daughter will not face insurmountable hardship addresses these concerns.
For the reasons provided above, the Court finds that Tribunal has erred in relation to ground 1. Accordingly, the application must be allowed.
Ground 2
Submissions
In the submissions dated 22 April 2020, the applicants accepted that the Tribunal was not required to consider the Conventions on the Rights of the Child. The applicants submitted that the Tribunal was nevertheless under an obligation to consider the interests of the third applicant and this included her health issues, that she needed access to an education and needed to feel safe in India.
The Minister referred the Court to Kaur v Minister for Immigration & Border Protection [2017] FCAFC 184 (“Kaur”) wherein the Full Court considered an argument that the Tribunal in that matter had fallen into error because, having failed to make findings on what the best interest of the child actually were, the Tribunal failed to treat the best interests of the child as a primary consideration (which it was required to do).
Here, the Minister submitted:
27.A similar argument in respect of ground 2 was expressly rejected by the Full Court of the Federal Court of Australia in Kaur v Minister for Immigration and Border Protection [2017] FCAFC 184 (Kaur) at [21] – [26]. In Kaur, the applicant had argued that the Tribunal in that matter “failed to treat the best interests of the child and/or children as a primary consideration, by failing to identify or make a finding as to what the best interests of the child or children were”. That ground was rejected for the following reasons:
27.1.Firstly, the incorrect premise underlying the argument is that the Tribunal is under an obligation to apply the Convention. In the absence of express provision, unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error. There is no such express provision in PIC 4020(4) of in the Act.
27.2.Secondly, the fact that the Tribunal chose to respond to submissions as to the relevance of the Convention, and to consider whether the matters submitted provided “compelling circumstances” did not make the consideration or application of the Convention a mandatory consideration.
27.3.Thirdly, by taking account of the Convention, the Tribunal would not in any event fall into jurisdictional error by misunderstanding the full extent or purport of the obligations.
27.4.Fourthly, PIC 4020(4) sets up a two-staged enquiry. 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 in Kaur conflated these inquiries and submitted that upon the involvement of a child in a visa application to which PIC 4020 applies, the existence of the Convention comes into consideration as a compelling circumstance warranting the balancing exercise of the considerations involved. The Full Court found that was not a correct interpretation of the regulation. PIC 4020(4) imposes a filter, whereby the decision maker must consider that there exist “compelling”, that is forceful, circumstances.
Consideration
Ground 2 suggests that the Tribunal erred in failing to properly consider the best interests of the child.
As accurately argued by the Minister, a similar argument was rejected in Kaur as follows:
22. First, the incorrect premise underlying the appellants’ arguments is that the Tribunal was under an obligation to apply the Convention. In the absence of express provision, unenacted international obligations are not mandatory relevant considerations attracting judicial review for jurisdictional error; Snedden v Minister for Justice [2014] FCAFC 156; (2014) 230 FCR 82 (Snedden) at [147] (Middleton and Wigney JJ, Pagone J agreeing at [242]); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [101]; Le v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 875 (Le) at [59]; AB v Minister for Immigration and Citizenship [2007] FCA 910; (2007) 96 ALD 53 at [22]. There is no such express provision in PIC4020(4) or in the Act.
23. In the present context, the observations of French J (as he then was) in Le at [59] are particularly apposite:
There is nothing in s 501 which expressly requires that the Minister have regard to the best interests of the visa holder’s children as a condition of the valid exercise of the cancellation power. Nor is there anything in the language of the Act to support an implication to that effect. In the international context, Australia is a party to the Convention on the Rights of the Child and therefore is bound, in international law, by the obligation, in legislative, executive and judicial decision-making to treat the best interests of the child as a primary consideration ‘in all cases concerning children’. However the existence of that obligation at international law does not, unless incorporated by the Parliament into domestic legislation, give rise to a corresponding substantive obligation which conditions the exercise of statutory powers. The provisions of an international treaty to which Australia is a party may be a relevant consideration in the exercise of statutory discretions – Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298 at 304 (Gummow J). Such considerations do not thereby become mandatory. In the joint judgment in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 527 [101], McHugh and Gummow JJ referred to the ‘... established doctrine’ that obligations under international treaties ‘... are not mandatory relevant considerations attracting judicial review for jurisdictional error’. The best interests of the children do not, by virtue of Australia’s commitments under the Convention, become a mandatory relevant consideration in the exercise of statutory powers and in particular the power of visa cancellation under s 501. It may be acknowledged that statutes are generally to be interpreted and applied, to the extent that their language allows, so as to conform and not conflict with established laws of international law – Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363; Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 77, and 80-81; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287. See also Minister for Foreign Affairs and Trade v Magno at 304 and the cases there discussed. But this rule of construction does not extend to writing into statutes conditions, expressive of treaty obligations, which would narrow the powers that Parliament has conferred upon administrative or ministerial decision-makers.
24. Secondly, the fact that the Tribunal chose to respond to the appellants’ submissions as to the relevance of the Convention, and to consider whether the matters submitted concerning Jazzveer provided “compelling circumstances” did not make the consideration or application of the Convention a mandatory consideration; Snedden at [152].
25. Thirdly, by taking account of the Convention, the Tribunal would not in any event fall into jurisdictional error by misunderstanding the full extent or purport of the obligations. As Tracey J observed in AB v Minister for Immigration and Citizenship at [27]:
Australia’s unenacted international treaty obligations relating to refoulment of persons within the jurisdiction are matters to which decision-makers are entitled to have regard when exercising powers under s 501 of the Act. In the absence of legislative requirement they are not, however, bound to do so. If they do not bring them into account as part of the decision-making process no jurisdictional error will occur. If they choose to have regard to treaty obligations but, in some way, misunderstand the full extent or purport of the obligations, this will not constitute jurisdictional error. It has been held that misconstruction of a ministerial policy, by a Minister who is free to depart from it, cannot amount to reviewable error: see Nikac v Minister for Immigration, Local Government and Ethnic Affairs (1988) 20 FCR 65 at 77-78. Where the instrument concerned is an unincorporated international treaty which is subject to interpretation by a potentially wide range of international bodies it will be harder to make good an allegation of error much less jurisdictional error.
26. Fourthly, 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.
Ground 2, as pleaded, must fail for the reasons expressed by the Full Court in Kaur and as accurately summarised by the Minister above.
The applicants’ submissions dated 22 April 2020 also suggest that the Tribunal failed to take into consideration the interest of an Australian citizen (namely the third applicant).
In this regard, the Court observes as follows:
a)insofar as the applicants are claiming that the Tribunal did not consider the third applicant’s health, for the reasons expressed in ground 1 above, this is correct and the Court considers that the Tribunal has erred in failing to do so;
b)to the extent that the applicants are claiming that the Tribunal failed to consider the third applicant’s education, the Tribunal considered that the third applicant would be taught in Hindi but found that she would have some knowledge of the language as both of her parents spoke the language. While the Tribunal accepted that this would be difficult, the Tribunal was not satisfied that this difficulty was a “compelling reason”. That finding was open to the Tribunal on the evidence before it; and
c)in relation to the applicants’ claim about safety in India for teenage girls, the Tribunal expressly found that there was nothing to suggest that the first applicant and the second applicant would not be able to ensure safety and security for their daughter. Again, that conclusion was open to be made.
To the extent ground 2 overlaps with ground 1, it is to be allowed. Otherwise ground 2, accordingly, is dismissed.
First Applicant’s Affidavit
The first applicant’s affidavit expressly states that the applicants do not dispute the finding that the applicants did not meet PIC 4020(1). The basis of the applicants’ grounds of review are that the Tribunal erred in considering PIC 4020(4) and the discretion to waive PIC 4020(1).
Save for [4] of the first applicant’s affidavit, the Court does not consider the first applicant’s affidavit to identify any jurisdictional error. Rather, it repeats the claims that the applicants made to the Tribunal about the compelling reasons to waive PIC 4020(1). It is not the role of the Court to consider for itself whether those circumstances are compelling. Rather, the Court can only to look at the Tribunal’s decision and determine whether the Tribunal’s consideration involves jurisdictional error.
The first applicant’s affidavit fails to identify any jurisdictional error.
Conclusion
The applicants have satisfied the Court that the Tribunal has made a jurisdictional error as pleaded in ground 1. The application is, accordingly, allowed.
The Tribunal’s decision is to be set aside and the matter remitted for rehearing.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Date: 8 May 2020
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