THAKUR v Minister for Immigration

[2015] FCCA 3038

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAKUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3038

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Temporary Business Entry (Class UC) visa – bogus document – whether the Tribunal misconstrued the test under PIC4020 – whether PIC4020 applied to family members not parties to the provision of the bogus document – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.31, 338, 347, 476, 504

Migration Regulations 1994 cl.457.224, PIC4020

M47 -2012 v Director General of Security [2012] HCA 46
Zeng Fu Qiu and Zeng Hu Li v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439

First Applicant: RADHIKA THAKUR

Second Applicant: RAJINDER SINGH

Third Applicant: SOPHIA THAKUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2255 of 2015

Judgment of: Judge Street

Hearing date: 12 November 2015

Date of Last Submission: 12 November 2015

Delivered at: Sydney

Delivered on: 19 November 2015

REPRESENTATION

Counsel for the Applicant: Mr P Cutler

Solicitors for the Applicant: Harold W Baker Solicitor

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application is dismissed. 

2. The First and Second Applicants pay the First Respondent’s costs fixed in the sum of $6825.

NOTATION:

Please note that Order 2 has been amended pursuant to sub-rule 16.05(2)(e) of the Federal Circuit Court Rules (2001).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2255 of 2015

RADHIKA THAKUR

First Applicant

RAJINDER SINGH

Second Applicant

SOPHIA THAKUR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

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 21 July 2015 affirming a decision of the delegate not to grant the applicants Temporary Business Entry (Class UC) visas. The applicants applied for visas on 17 July 2014 on the basis of the sponsorship of Kym M and Nunziata G Waddington (t/as Mackay Taxi Holdings P/L) in the nominated occupation of transport company manager.

2. The delegate refused to grant the visas on the basis that the applicants did not satisfy the requirement of cl.457.224 of Schedule 2 of the Migration Regulations 1994 because in the period starting three years before the application was made, a member of the applicants’ family unit, being the second named applicant, was refused a visa because of a failure to satisfy the public interest criteria 4020(1). 

3. I note that the first and second applicants were parties to those proceedings before the Tribunal in which the second applicant was found not to have satisfied the criteria under PIC4020(1).  The grounds of the application are as follows:

   I. THE TRIBUNAL MISCONSTRUED THE OPERATION OF PIC 4020(2) IN THAT NO BOGUS DOCUMENT OR INFORMATION THAT IS FALSE AND MISLEADING IN A MATERIAL PARTICULAR WAS PROVIDED BY THE APPLICANT

   2. PIC 4020 IS BEYOND POWER AND INVALID TO THE EXTENT THAT IT PURPORTS TO APPLY TO THE APPLICANT IN CIRCUMSTANCES WHERE SHE IS A MEMBER OF THE FAMILY UNIT OF AN APPLICANT IN A PREVIOUS VISA APPLICATION

4. PIC4020 in Schedule 4 provides as follows:

   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.

   (2)  The Minister is satisfied that during the period:

   (a)  starting 3 years before the application was made; and

   (b)  ending when the Minister makes a decision to grant or refuse the application;

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (2A)  The applicant satisfies the Minister as to the applicant’s identity.

   (2B)  The Minister is satisfied that during the period:

   (a)  starting 10 years before the application was made; and

   (b)  ending when the Minister makes a decision to grant or refuse the application;

   neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

   (3)  To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4)  The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a)  compelling circumstances that affect the interests of Australia; or

   (b)  compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.

   (5)  In this clause:

   information that is false or misleading in a material particular means information that is:

   (a)  false or misleading at the time it is given; and

   (b)  relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

5. Counsel for the applicants submitted that the reference in PIC4020(2) to “the applicant and each member of a family unit of the applicant” meant that the provision had no application to the first and third applicants, because they had not been refused a visa because of a failure to satisfy the criteria in subclause (1).  The logic of the applicants’ argument was in substance to read PIC4020(2) as meaning “the applicant and every member of a family unit of the applicant have been refused a visa because of a failure to satisfy the criteria in (1)”. 

6. In my opinion, that is not a construction of a regulation that arises on its plain and ordinary meaning and is not supported by the statutory context.  Further, that construction of the applicants gives no work to the words “and each” and “has not been”.  It is clear that the criteria under PIC4020 was intended to maintain a level of integrity and honesty in the application process.  It would be odd in the extreme to read the provision as having a consequence that every member of the applicant’s family and the applicant had to be subject of a refusal in the work done by PIC4020(2).  In my opinion, no error was made of the kind alleged in ground 1 of the application. 

7. In relation to ground 2, the applicants made reference to the principles identified in Plaintiff M47-2012 v Director General of Security [2012] HCA 46 at [53]-[56]. It was submitted that a construction of PIC4020 that required what was said to be innocent family members to be affected by the conduct of another family member were not consistent with the Migration Act 1958. Reference was made to the regulation-making power in s.504 and s.31(3).

8. No provision of the Migration Act 1958 was identified as being inconsistent with PIC 4020. I accept the first respondent’s submission that nothing in Subdivision C of Division 3 of Part II gives rise to any repugnancy or inconsistency. Counsel for the applicants sought to argue that the review process under s.347 was in some way inconsistent or repugnant with the work done by PIC4020(2). I reject that submission. I note that the review process before the Tribunal was one in which the Minister may waive the requirements of PIC4020(2) under PIC4020(4), and I note that the PAM3 procedure in relation to considering that discretion includes a reference to:

   ·the nature and extent of the fraud.  Factors to consider include: 

   othe extent of false or misleading information or documents (for example, multiple falsities or misleading information),

   oa past history of attempting fraud against Australia’s migration program.

9. Reference was also made to s.338(2) in respect of the reviewable decision. There is nothing in that provision, in my opinion, that gives rise to some inconsistency or repugnancy with PIC4020(2). Further, the application of PIC4020(2) to the first and third applicants as well as the second applicant does not give rise to any invalidity of the kind identified in Zeng Fu Qiu and Zeng Hu Li v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 at 446

10. It is clear from the scheme of the Migration Act 1958 and including for example Subdivision C Division 3 of Part II of the Act that family members may be affected by adverse findings in relation to bogus documents concerning a cancellation in respect of a visa holder under those provisions.  In my opinion 4020(2) is entirely consistent with the object of maintaining the policy integrity and honesty in the visa process and the overarching policy of the Act to protect Australians. PIC4020(2) is not in its operation unreasonable or oppressive or capricious. Ground 2 fails to make out a jurisdictional error. 

11. The application is dismissed. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Original reasons delivered on: 19 November 2015

Corrected reasons delivered on: 27 November 2015

Corrections:

Orders amended pursuant to r.16.04(2)(e) of the Federal Circuit Court Rules 2001
Delivery date amended to reflect correction date.