Thakur v Minister for Immigration and Border Protection

Case [2016] FCA 473

FEDERAL COURT OF AUSTRALIA

Thakur v Minister for Immigration and Border Protection [2016] FCA 473

Appeal from: Thakur & Ors v Minister for Immigration & Anor [2015] FCCA 3038
File number: NSD 1616 of 2015
Judge: PERRY J
Date of judgment: 5 May 2016
Catchwords: MIGRATION- appeal from Federal Circuit Court dismissing an application for judicial review of Administrative Appeals Tribunal Decision – where visa was refused because first appellant did not meet public interest criterion (PIC) 4020(2) of the Migration Regulations 1994 (Cth) – whether PIC 4020 inconsistent with s 349 of the Migration Act 1958 (Cth) and beyond the regulation-making power in s 504 of the Act in that in substance there can be no real review of the delegate’s decision – validity of PIC 4020 upheld- appeal dismissed.
Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases cited:

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Plaintiff M47-2012 v Director General of Security [2012] HCA 46; (2012) 251 CLR 1

Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286

Date of hearing: 5 May 2016
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 36
Counsel for the Appellants: Mr P Cutler
Solicitor for the Appellants: Harold W Baker, Solicitor
Counsel for the First Respondent: Mr HPT Bevan
Solicitor for the First Respondent: Australian Government Solicitor
Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs

ORDERS

NSD 1616 of 2015
BETWEEN:

RADHIKA THAKUR

First Appellant

RAJINDER SINGH

Second Appellant

SOPHIA THAKUR

Third Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

PERRY J

DATE OF ORDER:

5 MAY 2016

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The first and second appellant pay the first respondent’s costs as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(Revised from Transcript)

PERRY J:

1.               INTRODUCTION

  1. The appellants appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (the delegate) not to grant the appellants Temporary Business Entry (Class UC)(Subclass 457- Temporary Work (Skilled)) visas on the ground that the first appellant, who was the primary applicant for the visas, did not satisfy Public Interest Criterion (PIC) 4020 and, therefore, the criterion in cl 457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations).  The second and third appellants, who are the first appellant’s husband and daughter respectively, were included in the application as members of her family unit.  It was not in issue before…

Continue reading Thakur v Minister for Immigration and Border Protection

Sign in free to access the full text

Details
AGLC
Thakur v Minister for Immigration and Border Protection [2016] FCA 473
Case
[2016] FCA 473
Decision Date

CaseChat Overview and Summary

The appeal in Thakur v Minister for Immigration and Border Protection was brought by the appellants against the decision of the Federal Circuit Court to dismiss their application for judicial review of the Administrative Appeals Tribunal's decision to uphold the refusal of their visa applications. The appellants contended that the public interest criterion 4020(2) of the Migration Regulations 1994 (Cth) was inconsistent with s 349 of the Migration Act 1958 (Cth) and beyond the regulation-making power in s 504 of the Act, as it effectively precluded a real review of the delegate's decision.

The court was required to determine whether the public interest criterion 4020(2) of the Migration Regulations was inconsistent with s 349 of the Migration Act and beyond the regulation-making power in s 504 of the Act. The appellants argued that the criterion was unreviewable in substance as it imposed a decision on the first appellant based on a previous visa application by the second appellant, thereby precluding a true merits review under s 349(2) of the Act.

The court found that the primary judge correctly held that the regulation was not inconsistent with the Act and was valid. The court reasoned that the Migration Act provides for merits review of reviewable decisions and the refusal of a visa on the basis of PIC 4020(2) operates differently to 4020(1). However, the court held that the appellants' argument that PIC 4020(2) was unreviewable in substance was not supported by the evidence and reasoning presented. The court concluded that the Tribunal had exercised its power under s 349(2) of the Act and had arrived at the correct or preferable decision.

The appeal was dismissed and the first and second appellants were ordered to pay the first respondent's costs as agreed or taxed.

Orders

Orders of the court

1. The appeal is dismissed.

2. The first and second appellant pay the first respondent’s costs as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons that follow, the primary judge correctly held that the regulation is not inconsistent with Act and invalid. It follows that the appeal must be dismissed. 2. BACKGROUND2.1 The visa application and the delegate’s decision On 17 July 2014, the appellants applied for the visas. The application was made on the basis of sponsorship by Kym and Nunziata G Waddington (t/a Mackay Taxi Holdings P/L) in the nominated occupation of Transport Company Manager. On 12 August 2014, a case officer of the Department of Immigration and Border Protection (Department) wrote a letter to the first appellant. The letter invited the first appellant to comment on departmental records indicating that a member of the first appellant’s family had been refused a visa on the ground of providing a bogus document or false or misleading information in relation to the application for that visa contrary to PIC 4020(2). The letter also stated that it was not open to the Department to revisit that refusal as a part of this visa application but that the appellant may also identify any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen, to justify the waiver of the requirement in PIC 4020(2). On 1 October 2014, the delegate refused the application on the ground that the first appellant had failed to satisfy PIC 4020(2) and the delegate was not satisfied that there were circumstances that nonetheless justified the grant of the visa. 2.2 The decision of the Tribunal On 21 October 2014, the appellants applied for review of the delegate’s decision in the (then) Migration Review Tribunal. On 8 July 2015, the appellants appeared before the Tribunal to give evidence and present arguments, and were represented by their registered migration agent. On 22 July 2015, the Tribunal affirmed the decision not to grant the visas to the appellants. In its reasons, the Tribunal identified that the issue on the review was whether the visa applicant met PIC 4020 as required by cl 457.224 of Schedule 2 to the Regulations. The Tribunal continued:10. The applicants provided to the Tribunal a copy of the delegate’s decision record. It records that in the period commencing 3 years before this visa application was made the second named applicant, a member of the applicant’s family unit and over 18 years, was refused a visa on the grounds that he did not meet PIC 4020(1). He had lodged a Subclass 457 visa application on 12 November 2012 having also been sponsored by Kym M and Nunziata G Waddington (t/a Mackay Taxi Holdings P/L) in the nominated occupation of Transport Company Manager. That visa application was refused on 1 March 2013. 11. The Tribunal discussed this issue with the applicants at the hearing. The applicant confirmed that the second named applicant had been refused a visa on the grounds that he did not meet PIC 4020(1) and that he had appealed that decision and it was affirmed by a different Tribunal member. She indicated that she disagreed with the outcome of that review but also indicated that she understood that there is a decision that the second named applicant has been refused a visa because he did not meet PIC 4020(1).12. The Tribunal finds that a member of the applicant’s family unit has been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. Therefore PIC 4020(2) is not met.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 1 October 2014, the delegate refused the application on the ground that the first appellant had failed to satisfy PIC 4020(2) and the delegate was not satisfied that there were circumstances that nonetheless justified the grant of the visa. 2.2 The decision of the Tribunal On 21 October 2014, the appellants applied for review of the delegate’s decision in the (then) Migration Review Tribunal. On 8 July 2015, the appellants appeared before the Tribunal to give evidence and present arguments, and were represented by their registered migration agent. On 22 July 2015, the Tribunal affirmed the decision not to grant the visas to the appellants. In its reasons, the Tribunal identified that the issue on the review was whether the visa applicant met PIC 4020 as required by cl 457.224 of Schedule 2 to the Regulations. The Tribunal continued:10. The applicants provided to the Tribunal a copy of the delegate’s decision record. It records that in the period commencing 3 years before this visa application was made the second named applicant, a member of the applicant’s family unit and over 18 years, was refused a visa on the grounds that he did not meet PIC 4020(1). He had lodged a Subclass 457 visa application on 12 November 2012 having also been sponsored by Kym M and Nunziata G Waddington (t/a Mackay Taxi Holdings P/L) in the nominated occupation of Transport Company Manager. That visa application was refused on 1 March 2013. 11. The Tribunal discussed this issue with the applicants at the hearing. The applicant confirmed that the second named applicant had been refused a visa on the grounds that he did not meet PIC 4020(1) and that he had appealed that decision and it was affirmed by a different Tribunal member. She indicated that she disagreed with the outcome of that review but also indicated that she understood that there is a decision that the second named applicant has been refused a visa because he did not meet PIC 4020(1).12. The Tribunal finds that a member of the applicant’s family unit has been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. Therefore PIC 4020(2) is not met. Having concluded that PIC 4020(2) was not met, the Tribunal held that it was not satisfied that the requirements of PIC 4020(2) should be waived for the following reasons: 26. First it has considered the submissions in relation to the third named applicant’s medical conditions, her illness in India and her enrolment in a school for the 2017 school year. As confirmed at the hearing the third named applicant is not an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The Tribunal accepts that the third named applicant became ill when she went to India in 2014 and 2015 and that she did not recover until she returned to Australia. It also accepts that she is enrolled in an Australian school due to commence in 2017. It takes into account the representative’s submissions on Australia’s obligations to children. The Tribunal considers it to be in the third named applicant’s best interests to stay with her parents. There is nothing to suggest the third named applicant will be separated from her parents if the waiver provisions are not applied. Overall it is not satisfied these are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.27. The Tribunal has considered the assertions that the business and its employees, some who are Australian citizens, will be adversely affected if the waiver provisions are not applied. The Tribunal accepts that there may be an impact on the business, and its employees, if the visa is not granted to the applicant. It accepts that the applicant has good communication with the employees and that they are happy working with her. It accepts that there may be difficulties in finding a suitable person for the position and that there are challenges in filling positions in regional Australia. It takes into account the assertion that the applicant’s employment benefits regional Australia and that the taxi business is important for Mackay. It also accepts that the business may lose two employees if the visas are not granted. However it is often the case that businesses have to adjust to staff changes and employee departures. Also businesses often have to train new staff in the duties of a position. It is also often the case that regional businesses face some difficulties in filling positions. On the evidence before it, the Tribunal is not satisfied the business will suffer job losses if the visa is not granted to the applicant. It accepts that it may be more difficult for the sponsors to arrange their holidays. However the Tribunal is not satisfied on the evidence before it that the sponsors’ business will be so adversely affected by the applicant not being granted the visa that the circumstances are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that effect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.28. The Tribunal has considered the assertions that the sponsors’ children will be adversely affected if the visa is not granted to the applicant. The Tribunal accepts the sponsors’ children are Australian citizens. However, as discussed with the applicant at the hearing, it is often the case in Australian families that both parents are employed, including in their own business, and they need to juggle the competing demands of work and family. The Tribunal is not satisfied in this case that these are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. 29. The Tribunal has considered the submissions that a significant period has passed since the second named applicant’s visa was refused, the assertion that the applicant has not submitted any fraudulent documents and the view that it has not been proven that the documents provided by the second named applicant were not genuine. It does not consider any of these circumstances to be compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.30. The Tribunal has considered the social relationship between the applicants and the sponsors. It is satisfied that they will be able to continue their friendship if the visa is not granted. It is not satisfied that these are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

Ratio Decidendi

Legal Principle Established

“Bogus document” is defined in s 5 of the Act to mean:…a document that the Minister reasonably suspects is a document that:(a) purports to have been, but was not, issued in respect of the person; or(b) is counterfeit or has been altered by a person who does not have authority to do so; or(c) was obtained because of a false or misleading statement, whether or not made knowingly.4. CONSIDERATION The sole ground of appeal is that:The Federal Circuit Court fell into error in respect of the construction of PIC4020, in that PIC4020 is beyond power and invalid on the basis that it excludes the appellants right of merits review in circumstances where she is a member of the family unit of an applicant in a previous visa application. It is not in dispute that the decision to refuse the first appellant’s visa application is a “Part 5 reviewable decision” within the meaning of s 338 of the Act. The function of the Tribunal on review of such a decision is set out in s 349 of the Act, namely:(1) The Tribunal may, for the purposes of the review of a Part 5‑reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.(2) The Tribunal may:(a) affirm the decision; or(b) vary the decision; or(c) if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or(d) set the decision aside and substitute a new decision; or(e) if the applicant fails to appear—exercise a power under section 362B in relation to the dismissal or reinstatement of an application. It is well established that the task entrusted to the Tribunal on review under s 349 of the Act is to arrive at the correct or preferable decision as at the time that it makes its decision: Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286. That being so, the appellants contend that PIC 4020(2) is inconsistent with s 349 of the Act and therefore beyond the regulation-making power in s 504 of the Act on the following bases:14. Accepting that PIC4020(2) applied to the First Appellant by reason of the refusal of her husband’s visa on the basis that he failed to meet PIC4020(1), the decision to refuse to subclass 457 visa application became unreviewable. There are two reasons for this submission.15. First, even if the First Appellant was able to demonstrate that the documents provided by her husband were not bogus, it would not change the fact his visa had been refused on the basis of PIC4020. In other words, PIC4020(2) will apply to the First Appellant. PIC4020(2) is in effect imposed on the First Appellant by the decision of the Minister’s delegate in relation to a previous visa application by the Second Appellant.16. Second, where PIC4020(2) applies, there is only one possible outcome in the AAT, namely that the refusal decision must stand. In those circumstances, the AAT has not exercised (and cannot exercise) its power under section 349(2)(b) or (d).17. In relation to section 349(2)(a), it is submitted that there is a difference between “may affirm” and invariably must affirm. The former is a true review the latter is not.18. Consequently, the Migration Act provides for merits review of “reviewable decisions”. The refusal of a visa on the basis of PIC4020(2) operates differently to 4020(1) and it is in substance, unreviewable.