Thakur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 124
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thakur v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 124
File number(s): PEG 171 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 2 March 2022 Catchwords: MIGRATION – Student visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to make a further finding about whether the compassionate and compelling circumstances justified the granting of the visa – whether the Tribunal failed to consider the first applicant’s age when determining whether there were compassionate or compelling circumstances for the waiver of PIC 4020 – whether the Tribunal failed to consider the financial inability of the first applicant to afford healthcare and education for his children – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5, 476
Migration Regulations 1994 (Cth), cll 187.213, 187.233 and 187.311 in Schedule 2, Public Interest Criterion 4020 in Schedule 4
Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600
Craig v State of South Australia (1995) 184 CLR 163
Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294
Singh v Minister for Immigration & Border Protection [2017] FCAFC 105
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 100 Date of hearing: 28 February 2022 Place: Perth Applicants: First applicant in person Counsel for the First Respondent: Mr A Gerrard Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Australian Government Solicitor ORDERS
PEG 171 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: VIKRAM SINGH THAKUR
First Applicant
NEETU SHAHI
Second Applicant
AARAV THAKUR
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
2 MARCH 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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 KENDALL:
BACKGROUND
The applicants in this proceeding are citizens of India (Court Book (“CB”) 11-17). The first and second applicants are husband and wife respectively (CB 12 & 14). The third applicant is their son (CB 17). The first applicant’s visa application also included the first and second applicants’ daughter (CB 15). Their daughter now holds an Australian citizenship
(CB 422-424) and is thus not a party to this proceeding.
On 27 November 2015, the first applicant lodged an application for a Regional Employer Nomination (Class RN) (Subclass 187) visa (the “visa”) (CB 11-34). The remaining applicants were included in the application as members of the first applicant’s family unit. In that application, the first applicant listed his nominated occupation as that of a “cook” (CB 21). He also noted that he had completed an International English Language Testing System (“IELTS”) test on 18 October 2014 and that his language ability was assessed as “competent” (CB 26-27). The applicants also provided a large number of documents in support of the visa application (CB 39-199).
On 8 June 2016, the then Department of Immigration and Border Protection (the “Department”) requested information from the first applicant in relation to the visa application (CB 200-212). In response, the applicants provided further material to the Department (CB 213-219).
From 20 July 2016 to 1 August 2016, the Department made a number of enquiries via email with the relevant IELTS provider (CB 220-251). As a result of those enquiries, it was concluded that the first applicant did not sit an IELTS test on 18 October 2014 (CB 244).
On 5 September 2016, the Department invited the first applicant to comment on the adverse information it had received (being that the first applicant did not sit an IELTS test on the date he had claimed). That letter referenced Public Interest Criterion 4020 (“PIC 4020”) in Schedule 4 of the Migration Regulations 1994 (Cth) (the “Regulations”) and noted that it appeared that the first applicant may have provided a “bogus document” (CB 252-257).
On 5 October 2016, the applicants responded (via email) to the invitation to comment (through their registered migration agent) (CB 258-259). Attached to that email was correspondence from the applicants’ migration agent (CB 260) which provided a letter from the IELTS provider to the first applicant dated 20 September 2016 indicating that the first applicant did sit a test on 18 October 2014 (the “IELTS letter”) (CB 261).
The Department then made enquiries with the author of the IELTS letter. On 11 October 2016, that individual confirmed that she had not sent any letter dated 20 September 2016
(CB 262-264).
In October 2016, the Department gave the applicants’ representative a “verbal Natural Justice letter” (CB 265-268). In response to that letter, the applicants’ representative provided a letter from the first applicant’s employer which detailed “compelling circumstances” for the grant of the visa (CB 269-270).
On 21 October 2016, a delegate of the first respondent (the “Minister”) refused to grant the applicants the visa (CB 284-292). The delegate found that the first applicant did not satisfy PIC 4020 of Schedule 4 of the Regulations and, as such, failed to satisfy cl 187.213 of Schedule 2 of the Regulations (CB 288). The delegate also found that the second and third applicants (and the first and second applicants’ daughter) did not satisfy cl 187.311 of Schedule 2 of the Regulations (CB 289-292).
On 27 October 2016, the applicants lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the “Tribunal”) (CB 313-315). The applicants were represented by a registered migration agent in relation to that application (CB 314-315).
On 22 February 2018, a delegate of the Minister refused the nomination application lodged by Bikaner India (WA) Pty Ltd with respect to the first applicant (affidavit of Arran Niall Gerrard, pp 4-13).
On 12 April 2019, the applicants were invited (through their registered migration agent) to attend a hearing before the Tribunal on 30 April 2019 (CB 331-334).
On 29 April 2019, the applicants’ representative provided written submissions and supporting documents to the Tribunal (CB 314-410). Those submissions explained that, as the first and second applicants’ daughter was an Australian citizen, there were compassionate and compelling grounds for the grant of the visas (CB 342-343).
On 30 April 2019, the applicants (and the first and second applicants’ daughter) attended a hearing before the Tribunal (CB 413-415).
On 1 May 2019, the applicants’ representative provided further submissions and supporting material to the Tribunal (CB 416-421). An additional document was provided by the applicants’ representative to the Tribunal on 28 June 2019 (CB 422-424).
On 23 July 2019, the Tribunal affirmed the decision not to grant the applicants the visas (CB 428-436).
On 18 August 2019, the applicants sought review of that decision in this Court.
On 8 May 2020, this Court made orders remitting the matter to the Tribunal for reconsideration (CB 437-438).
On 1 July 2021, the Tribunal invited the applicants to attend a hearing before it on 20 July 2021 (CB 448-452).
Prior to the hearing, a “Book of Documents” was provided by the applicants’ representative to the Tribunal for consideration (CB 459-496).
The applicants (and the first and second applicants’ daughter) appeared at a hearing before the Tribunal on 20 July 2021. The applicants were assisted by their registered migration agent and an interpreter in the Hindi and English languages (CB 497-500).
On 22 July 2021, the Tribunal affirmed the decision not to grant the applicants the visas (CB 504-513).
On 13 August 2021, the applicants filed an application for judicial review of the Tribunal’s decision in this Court (CB 1-6). That application was supported by a statutory declaration (sworn by the first applicant on 11 August 2021) which annexed a copy of the Tribunal’s decision in this matter (CB 7-10).
The application for judicial review has been filed pursuant to s 476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal has fallen into jurisdictional error.
TRIBUNAL’S DECISION
The Tribunal’s decision is 10 pages and spans 48 paragraphs. It also includes two pages containing extracts of relevant legislative provisions.
The Tribunal first identified the type of visa the applicants were seeking (at [1]) and summarised the delegate’s decision (noting that the delegate was not satisfied that the first applicant met the requirements of cl 187.213 of Schedule 2 of the Regulations on the basis that PIC 4020 of Schedule 4 of the Regulations had not been met (at [2])).
The Tribunal noted that a differently constituted Tribunal had affirmed the delegate’s decision on 23 July 2019, that the applicants sought review of that decision and that the matter had been remitted to the Tribunal on 8 May 2020 (at [3]).
The Tribunal explained that the applicants appeared before the Tribunal on 20 July 2021 and were assisted by an interpreter and their registered migration agent (CB [4]-[5]).
The Tribunal then stated:
7.There are two issues in this review. The first is whether the employer nomination in relation to the applicant has been approved as required by cl.187.233 for the grant of the visa. The second is whether, for the purposes of cl.187.213, the applicant meets the requirements of PIC 4020(1) and if not, whether PIC 4020(1) should be waived.
Nomination of a position
8.Clause 187.233 requires that the position to which the application relates be the subject of an application for approval of a nomination in the Direct Entry stream, located in regional Australia. The position must be the one that was the subject of the declaration made as part of the current visa application. In addition, this criterion also requires that the nomination has been approved.
The Tribunal explained that the first applicant’s visa application was based on a nomination made by Bikaner India WA Pty Ltd. The Tribunal noted that the nomination was refused on 22 February 2018, the decision to refuse the nomination stood and that the nominating company had been deregistered (at [9]).
The Tribunal detailed the first applicant’s evidence at the hearing, noting that he had ceased working with the nominator shortly after the nomination refusal, the business is now closed and that he had been unable to find employment as a cook or chef (at [10]).
The Tribunal continued:
11.In accordance with the procedure in s.359AA, the Tribunal informed the applicant that Departmental records indicate that the nomination, against which he made the required declaration in his visa application, was refused by the Department on 22 February 2018 and that the nominator had not applied for review of that decision. The Tribunal also noted that a current search of the ASIC Register indicated that the nominating entity (Bikaner India WA Pty Ltd) was deregistered on 8 November 2020. The Tribunal explained to the applicant the relevance of the information and informed the applicant that if it relied on the information it would go on to find that the relevant nomination in relation to him has not been approved and that the nominated position was no longer available to him. The Tribunal further explained that it may then go on to find that he does not meet the requirements in cl.187.233 and in the circumstances the decision under review may be affirmed.
The Tribunal gave the applicant “a few minutes” to consider his response to the information. The Tribunal then outlined the first applicant’s oral evidence – noting that he had arrived in Australia in 2007 and was focused on his children’s future (one of whom is now an Australian citizen). The Tribunal also noted the first applicant’s evidence that the nominating employer did not notify the first applicant about the nomination (at [12]).
The Tribunal then stated:
13.The Tribunal acknowledged the applicant’s evidence, however, as explained to him at the hearing, one of the primary requirements for the grant of the visa is that the employer nomination for the position has been approved. The Tribunal acknowledges the applicant’s desire to remain in Australia and raise his young children, one of whom is an Australian citizen, however, there is no provision in the legislation to take into account any extenuating circumstances for the purposes of the requirements in cl.187.233.
14.One of the primary issues in this case is whether the relevant nomination has been approved. The evidence before the Tribunal indicates that the nomination for the position lodged by Bikaner India WA Pty Ltd, about which the visa applicant made the required declaration in his visa application, has been refused. Bikaner India WA Pty Ltd did not apply for review of the Department’s decision to refuse the nomination. In the circumstances, the Department’s decision refusing the nomination stands. As the relevant nomination has been refused, it follows that the applicant does not meet the requirements in cl.187.233(3).
The Tribunal found that the requirements of cl 187.233 of Schedule 2 of the Regulations had not been met (at [15]).
The Tribunal then explained the scope and effect of PIC 4020 of Schedule 4 of the Regulations as follows:
16.Relevantly, PIC 4020 requires that there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1).
17.The requirement in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). PIC 4020 is extracted in the attachment to this decision.
The Tribunal assessed whether the first applicant had “given, or caused to be given, a bogus document” and detailed relevant legislation and authorities regarding the meaning of the term “bogus document” and “false or misleading” information (at [18]).
The Tribunal noted that the requirement regarding bogus documents was applicable whether or not the Minister became aware of the bogus documents and whether the document was providing knowingly or unwittingly (at [19]). Further, the Tribunal need not be aware that the information was “purposely untrue” for PIC 4020 of Schedule 4 of the Regulations to be engaged (at [20]).
The Tribunal then explained as follows:
21.As part of the Subclass 187 visa application, the applicant provided an IELTS test report dated 18 October 2014. The IELTS report indicated that the applicant achieved the following scores in the test: Listening 6.5, Reading 7.5, Writing 6.0 and Speaking 6.5. An officer of the Department sought to verify the results of the test online but was unable to do so as no match could be found. The officer wrote to the centre that issued the report to request further information. In response, an Audit and Investigations Manager of IDP Education Pty Ltd advised that after careful review of their IELTS records, the test results provided for the applicant do not match their records.
22.The applicant was invited to comment on the adverse information obtained by the Department regarding the authenticity of the IELTS test report. In response, the applicant provided a letter dated 20 September 2016 purporting to be from an administration officer at an IELTS Centre at the University of Western Australia. The letter, which was somewhat indecipherable due to its numerous grammatical and typographical errors, suggests that due to browser errors the applicant’s results cannot be viewed and when investigations were undertaken with the IT Department they advised that there had been technical errors since June 2016 and data was lost. It states that manual records indicate the applicant sat the test on 18 October 2014. On 11 October 2016, an officer of the Department contacted the person who was named as the author of the letter. The named person advised the officer that they had not issued the letter.
The Tribunal noted that the first applicant was invited to comment on information regarding the IELTS letter. In response, the Tribunal received a number of documents and a letter from the applicant’s nominating employer seeking consideration under “compelling circumstances” (at [23]).
The Tribunal also detailed a statement from the first applicant dated 18 July 2021 in which the first applicant indicated that he no longer wished to dispute the bogus document finding. Further, the Tribunal noted that the applicant had said he was “sorry”, had been misguided by someone and had not appreciated the ramifications (at [24]).
The Tribunal then discussed the evidence before it. That evidence indicated that the first applicant “did not sit an IELTS test on 18 October 2014 as claimed” and that the IELTS test report was not issued in respect of the applicant. The Tribunal found that the IELTS test report was a “bogus document” as defined in s 5(1) of the Act (at [25]).
On the evidence before it, the Tribunal also found that the IELTS letter (dated 20 September 2016) was a “bogus document” (at [26]).
The Tribunal ultimately determined as follows:
27.The Tribunal is satisfied that there is evidence that the applicant has given, or caused to be given, to the Department the bogus IELTS report and letter in relation to his visa application. Therefore, the applicant does not meet PIC 4020(1).
The Tribunal then considered whether the requirements of PIC 4020(1) or (2) of Schedule 4 of the Regulations should be waived, noting that the Tribunal can do so where “there are compassionate or compelling circumstances that affect the interests of an Australia citizen … that justify granting the visa” (at [28]). The Tribunal also considered the meaning of the words “compelling circumstances” and “compassionate or compelling circumstances” (at [29]).
The Tribunal assessed matters raised by the first applicant in this regard and, relevantly (at [30]):
(a)noted that a letter was provided from the first applicant’s nominating employer explaining compelling circumstances affecting his Australian business. The first applicant (in oral submissions) explained that he was a “multicuisine chef”, the owners of the business were Australian citizens and the first applicant had trained Australian citizens (at [31]);
(b)acknowledged that the first applicant had contributed to an Australian business through his employment, but was no longer working with the nominating employer (and that that business had closed). The Tribunal was not satisfied that there were compelling or compassionate circumstances that affect the interests of an Australian in this regard to justify the grant of the visa (at [32]);
(c)considered that the first applicant had been in Australia since 2007, his children were born in Australia and that his oldest child became an Australian citizen on her tenth birthday. The Tribunal had regard to the “children’s academic progress” (at [33]);
(d)noted the first applicant’s evidence (given by way of a statement provided to the Tribunal) as follows:
34.In his statement to the Tribunal, the applicant claimed that his children will not be able to integrate into the Indian education system as they do not speak, read or write Hindi fluently at the required level. He stated that his children have grown up with their Australian citizen cousins (his brother’s children) who provide them with strong family support. He stated that that he and his wife have been in Australia since 2007, they do not own a house in India and as he will be 52 years old in October, it will be difficult for him to find a job in India. He stated he will not be able to financially provide for his family and there is no meaningful welfare system in India.
35.The applicant also submitted that under the Convention on the Rights of the Child 1989, Australia as a signatory country, should have the child’s best interest in any decisions that affects the child’s right. He stated that his children’s best interest can only be protected if they continue their education in Australia, to ensure they will have access to all opportunities. He further stated that it is not safe in India due to COVID-19 and that his two children have asthma, which is exacerbated by COVID-19. He provided details on the limitations of the Indian healthcare system and stated it would impose a significant impediment for his family maintaining basic living standards. The applicant also expressed his concern about his daughter coping with relentless sexual assaults on young girls in India.
(e)determined that it was in the best interests of the first applicant’s children for the family unit to remain intact and considered that, but for COVID-19 and associated travel restrictions, the first applicant and his family could return to India. Further, the Tribunal considered that the first applicant had “extensive experience as a chef” (both in India and in Australia) which would “put him in good stead to secure employment in India” and “provide for his family, including his Australian citizen daughter” (at [36]);
(f)noted that the first applicant, being unable to find work in hospitality, was working as a courier – demonstrating that, despite difficulties, he can adapt and find a way to support his family. The Tribunal was of the view that the first applicant could apply the same resourcefulness to supporting his family (including his Australian citizen daughter) in India (at [37]);
(g)acknowledged that the first applicant had concerns about the educational difficulties his children might encounter in India (noting their limited Hindi language proficiency) but determined that the children were young and could adapt to India’s education system. Further, the children could be enrolled in English language schools in India (at [38]);
(h)acknowledged the first applicant’s concerns about sexual assaults on young women in India but found that this was not the experience of every young woman and that many factors affect a young girl’s experience in India (including the support and protection offered by her family (at [39]));
(i)acknowledged that the first applicant’s children (including his Australian citizen daughter) would experience some emotional hardship if they were separated from their Australian cousins (at [40]); and
(j)accepted that COVID-19 was widespread in India and, given the prevalence of the virus and the severe health crisis in India, there was a real possibility that the first applicant’s Australian citizen daughter would contract COVID-19 and may not receive adequate health care. On that basis, the Tribunal was satisfied that there were compelling and compassionate circumstances that affect the interest of the applicant’s Australian citizen daughter (at [41]-[42]).
The Tribunal then found as follows:
43.In considering whether the requirement in cl. 4020(1) should be waived, the Tribunal notes that, notwithstanding that the applicant does not qualify for the Subclass 187 visa as he does not have an approved nomination, the considerations in relation to PIC 4020(4) are distinct from the other requirements for the visa and relate only to the waiver of the requirements in cl.4020(1) and/or (2). While the exercise of the waiver is entirely academic in the circumstance of this case, as it will not result in the applicant qualifying for the visa, the Tribunal nevertheless considers that, having regard to the compelling and compassionate circumstances which affect an Australian citizen child, that the requirement in 4020(1) should be waived.
The Tribunal was satisfied that the requirements of PIC 4020 of Schedule 4 of the Regulations should be waived (at [44]).
However, while the Tribunal decided that it would waive the requirements in PIC 4020(1) of Schedule 4 of the Regulations, the Tribunal also determined that the delegate’s decision must nonetheless be affirmed because the first applicant did not satisfy cl 187.233 of Schedule 2 of the Regulations (at [45]). The Tribunal also found that, given that the remaining applicants had applied for visas on the basis of being members of the first applicant’s family unit, the decision in relation to their visas also needed to be affirmed (at [46]).
The Tribunal noted that the first and second applicant’s daughter is now an Australian citizen and that, as such, this decision would not affect her migration status (at [47]).
The Tribunal affirmed the decision to refuse to grant the remaining applicants the visas (at [48]).
PROCEEDINGS IN THIS COURT
In their application for judicial review filed with this Court on 13 August 2021, the applicants provide the following three “grounds of review”:
1.Firstly, the Tribunal made a finding that the requirements of Clause 4020(1) of the Migration Regulations should be waived on ground of compassionate and compelling circumstances affecting an Australian citizen. However, as required by Clause 4020(4), the Tribunal failed to make a further finding whether these circumstances as found by the Tribunal justified the granting of the visa. The Tribunal fell into jurisdictional error in failing to complete its decision-making process.
2.Secondly, the Tribunal fell into a further jurisdictional error when it failed to specifically consider and address the most pertinent factor adversely impacting the main applicant's chances of securing employment, which is his age (he will be 52 in October 2021) and financially sustaining the family, in particular his daughter, Avni who is an Australian citizen.
Particulars
•The Tribunal made a finding that that the applicant has extensive experience as a chef in India and Australia, and would be stand in good stead to secure employment in India and provide for his family.
•The Tribunal also made a finding that he was a resourceful person and will be able to find another type of employment.
•The Tribunal, however, did not consider or make any mention with regard to the applicant's age being a factor to be considered when addressing the applicant's presumed employment opportunities in India
3.Thirdly, the Tribunal failed to consider the financial inability of the applicant to afford healthcare and suitable education for the two children in India as a consequence of his high probability of unemployment and the fact that there is no social welfare or any such safety net for the unemployed.
The applicants also filed an affidavit, sworn by the first applicant, in support of their application for review. The affidavit contains information which reads like submissions. Any further concerns raised within that affidavit will be addressed below. The affidavit also annexed a copy of the Tribunal’s decision and associated correspondence notifying the applicants of that decision.
The applicants were given an opportunity to file an amended application, any additional affidavit evidence and written submissions. Written submissions were filed by the applicants on 22 February 2022.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicants on 13 August 2021, a Court Book numbering 513 pages (marked as Exhibit 1), written submissions filed by the Minister on 11 February 2022, affidavit of Arran Niall Gerrard affirmed and filed on 14 February 2022 and written submissions filed by the applicants on 22 February 2022.
The first applicant appeared before the Court without legal representation and spoke on behalf of the applicants during the hearing. He was assisted by an interpreter in the Hindi and English languages. The Court confirmed with the first applicant that the applicants had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicants were unrepresented, the Court gave the first applicant an opportunity to explain orally what he thought the Tribunal “did wrong”. This is 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 applicants, the Court explained to them that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, 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 that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visas that they seek. 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 (“Wu Shan Liang”) at 272.
Against this background, the first applicant explained that he is a tradesman and a skilled person but “does not know about the legal matters of his case”. He stressed that “these legal issues” were, however, “known by the owners of the company who had the relevant paperwork”. The first applicant explained that, after two Tribunal hearings, he “realised the mistake about the nomination” but he now wants whatever decision is made by the Court to “take into account his children’s future”. The first applicant also referenced paperwork provided by him in relation to “compassionate circumstances”.
These issues, to the extent that they relate to the Tribunal’s consideration of any “compassionate and compelling circumstances”, will be addressed by the Court below.
CONSIDERATION
Ground 1
Ground 1 provides:
1.Firstly, the Tribunal made a finding that the requirements of Clause 4020(1) of the Migration Regulations should be waived on ground of compassionate and compelling circumstances affecting an Australian citizen. However, as required by Clause 4020(4), the Tribunal failed to make a further finding whether these circumstances as found by the Tribunal justified the granting of the visa. The Tribunal fell into jurisdictional error in failing to complete its decision-making process.
This ground fails on a factual level.
The provisions of PIC 4020(1) and (4) in Schedule 4 of the Regulations relevantly provide 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 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.
Here, the Tribunal found that the IELTS test report and the IELTS letter (purporting to be from the IELTS test provider) were “bogus documents” (at [25]-[26]). On that basis, the Tribunal found that the first applicant did not meet PIC 4020(1) of Schedule 4 of the Regulations.
The Tribunal then needed to consider whether there were compassionate or compelling circumstances which would affect the interests of the first applicant’s Australian citizen child to warrant the waiver of PIC 4020(1) of Schedule 4 of the Regulations: PIC 4020(4)(b) of Schedule 4 of the Regulations.
The Tribunal did so. It considered all of the matters raised by the first applicant in relation to the waiver in detail (at [30]-[42]). Upon consideration of all of those factors, the Tribunal ultimately found in the first applicant’s favour as follows:
44.For the above reasons, the Tribunal is satisfied that the requirements of cl.4020(1) should be waived.
The Tribunal thus completed its statutory task in this regard.
Ultimately, while the Tribunal found that the requirements of PIC 4020(1) of Schedule 4 of the Regulations should be waived, the Tribunal was still required to affirm the delegate’s decision because the first applicant did not satisfy a primary criterion (cl 187.233 of Schedule 2 of the Regulations) for the grant of the visa (at [45]). That is, notwithstanding the fact that the exclusionary requirements of PIC 4020(1) of Schedule 4 of the Regulations were waived, the first applicant could not be granted the visa because he was not the subject of an approved nomination.
No error arises in relation to the findings of the Tribunal in this regard.
Ground 2
Ground 2 provides:
2.Secondly, the Tribunal fell into a further jurisdictional error when it failed to specifically consider and address the most pertinent factor adversely impacting the main applicant's chances of securing employment, which is his age (he will be 52 in October 2021) and financially sustaining the family, in particular his daughter, Avni who is an Australian citizen.
Particulars
•The Tribunal made a finding that that the applicant has extensive experience as a chef in India and Australia, and would be stand in good stead to secure employment in India and provide for his family.
•The Tribunal also made a finding that he was a resourceful person and will be able to find another type of employment.
•The Tribunal, however, did not consider or make any mention with regard to the applicant's age being a factor to be considered when addressing the applicant's presumed employment opportunities in India
This again fails on a factual level.
The Tribunal considered the first applicant’s claims about having difficulties because of his age (as detailed by him in a statement provided to the Tribunal) (at [34]). The Tribunal acknowledged that the first applicant was concerned that “they do not own a house in India”, “it will be difficult for him to find a job” and “he will not be able to financially provide for his family”.
However, after considering other concerns raised by the first applicant, the Tribunal ultimately found that:
37.The Tribunal further notes that the applicant is currently working as a courier driver as he has not been able to find employment in hospitality. This, in the Tribunal’s view, demonstrates that the applicant is a resourceful person who, despite the difficulties, can adapt and find other types of employment to support his family. The Tribunal is not satisfied that the applicant cannot apply the same level of resourcefulness to finding employment in India so that he can support his family, including his Australian citizen daughter.
Essentially, the applicants are expressing disagreement with the Tribunal’s conclusions. Disagreement, however strong, does not assist the applicants in relation to whether or not the Tribunal has fallen into jurisdictional error and the Court has no jurisdiction to review the factual merits of the Tribunal’s decision: Wu Shan Liang at 272.
No error arises in relation to ground 2.
Ground 3
Ground 3 provides:
3.Thirdly, the Tribunal failed to consider the financial inability of the applicant to afford healthcare and suitable education for the two children in India as a consequence of his high probability of unemployment and the fact that there is no social welfare or any such safety net for the unemployed
The applicants here claim that the financial inability of the first applicant was not considered with respect to healthcare and education for the first and second applicants’ children (including their daughter who is an Australian citizen).
Here, the Tribunal considered the three issues separately.
The Tribunal first dealt with the employment issue and found that the first applicant would use his resourcefulness to find employment and support his family as follows:
37.The Tribunal further notes that the applicant is currently working as a courier driver as he has not been able to find employment in hospitality. This, in the Tribunal’s view, demonstrates that the applicant is a resourceful person who, despite the difficulties, can adapt and find other types of employment to support his family. The Tribunal is not satisfied that the applicant cannot apply the same level of resourcefulness to finding employment in India so that he can support his family, including his Australian citizen daughter.
The Tribunal then addressed “the accessibility of children’s health and education”. In that regard, the Tribunal found as follows:
38.The Tribunal also acknowledges the applicant’s concern about his children’s education and the difficulties they may encounter if they had to return to India due to their limited proficiency in the Hindi language proficiency. The Tribunal considers that the children are still quite young and, with the support of their parents, can adapt to the education system in India. It is also open for the applicant to enrol his children in English-medium schools in India.
…
42.Given the prevalence of COVID-19 in India and severity of the health crisis there, the Tribunal considers that if the applicant’s daughter travels to India now or in the immediate future that there is a real possibility she will contract COVID-19 and if she becomes sick she may not be able to receive adequate health care. It is therefore in the interest of the applicant’s daughter to remain in Australia with her family at the present time. The Tribunal is satisfied that, at the time of this decision, there are compelling or compassionate circumstances that affect the interest of the applicant’s daughter, who is an Australian citizen.
Although addressed in separate paragraphs, the Tribunal, having first considered the first applicant’s ability to obtain work and provide for his family (at [37]), specifically addressed the ability of the first applicant to “enrol his children” in English speaking schools (at [38]) and dealt with the health issues, particularly in relation to COVID-19 (at [42].
As outlined above, the Tribunal ultimately found that, particularly because of the lack of adequate healthcare, the requirements of PIC 4020(1) of Schedule 4 of the Regulations should be waived (at [44]).
No error arises in relation to ground 3.
First applicant’s affidavit
The Court has reviewed the contents of the first applicant’s affidavit (filed on 13 August 2021). That affidavit contains some factual background regarding the visa history and the remittal of the matter, as well as information about the fact that the first and second applicants’ daughter had obtained Australian citizenship.
The affidavit does no more than express disagreement with the Tribunal’s findings or repeats claims that the applicants raised before the Tribunal about why PIC 4020(1) of Schedule 4 of the Regulations should be waived.
To the extent that the applicants disagree with the Tribunal’s findings, as outlined above, the Court is unable to assist. To the extent that the affidavit raises claims about compelling reasons for the waiver of PIC 4020(1) of Schedule 4 of the Regulations, the Court notes that PIC 4020(1) of Schedule 4 of the Regulations was, in fact, waived by the Tribunal.
The first applicant’s affidavit fails to identify any jurisdictional error.
Materiality
An error will only be a “jurisdictional error” where it is material or where an error made would have realistically deprived the applicants of the opportunity of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 (“SZMTA”); MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 (“MZAPC”).
MZAPC confirms that (as set out in SZMTA), the “existence or non-existence of a realistic possibility that the decision could have been different” is a “question of fact”. Further, the applicants in a matter of this sort (being a judicial review application) “bear the onus of proof” in that regard: MZAPC at [2]-[3].
Here, the grounds of review raised by the applicants in this matter focus on the exclusionary requirements of PIC 4020 of Schedule 4 of the Regulations. However, the Tribunal here found in favour of the first applicant in relation to a waiver of PIC 4020(1) of Schedule 4 of the Regulations and the Tribunal made a statement to that effect in its reasons for decision (at [44]).
Despite that finding being made in favour of the applicants, the first applicant was still unable to be granted the visa as he was not the subject of an approved nomination (as per the requirements of cl 187.233 of Schedule 2 of the Regulations).
It follows that any concerns with the Tribunal’s reasoning with respect to whether there were compelling and compassionate circumstances to waive the requirements of PIC 4020 of Schedule 4 of the Regulations could not be material. This is so because the Tribunal ultimately found in favour of the applicants in relation to PIC 4020(1) of Schedule 4 of the Regulations and was satisfied that PIC 4020(1) of Schedule 4 of the Regulations should be waived.
In those circumstances, any error in the Tribunal’s reasoning or consideration of whether to waive the requirement could not have realistically deprived the applicants of the opportunity of a successful outcome – at least in relation to the issues arising from the Tribunal’s analysis of PIC 4020(1) of Schedule 4 of the Regulations.
Futility
Visas of this sort are, in effect, “tied” to the sponsor and the approval of the relevant nomination application. It is a requirement that the sponsor’s nomination application be successful for the applicant to be successful. If the nomination application is not successful, an applicant’s visa application is “doomed to fail”.
The circumstances here are such that, even if there was a jurisdictional error, it would be futile to remit the matter the Tribunal: Singh v Minister for Immigration & Border Protection [2017] FCAFC 105. The Tribunal would, again, find that the applicant did not meet cl 187.233 of Schedule 2 of the Regulations as the first applicant is not the subject of a valid nomination. This is not disputed.
There is no evidence that the sponsor has sought to challenge the nomination decision and the company has now been deregistered. In fact, the Tribunal expressly states (at [9]) that the “nominator did not apply for review of the Department’s decision” to refuse the nomination. That is, the decision to refuse the nomination in relation to the first applicant remains a valid and effective decision which, on remittal, the applicant cannot cure. He cannot, for example, find a new sponsor or be nominated for a different position. The application is a “once off” process tied to the sponsor’s nomination application which, here, has failed. This means that the applicant will, on any view, also fail if the matter is remitted to the Tribunal.
Accordingly, any remittal of the matter would be futile.
CONCLUSION
The application for judicial review and supporting affidavit filed by the applicants on 13 August 2021 have failed to identify any jurisdictional error. This Court is otherwise unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 2 March 2022
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