TUMIL-ANG v Minister for Immigration

[2019] FCCA 1250

FEDERAL CIRCUIT COURT OF AUSTRALIA

TUMIL-ANG v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1250

Catchwords:
MIGRATION – PRACTICE & PROCEDURE – Employer Nomination (Permanent) visa – whether the non-disclosure of the s.376 certificate gave rise to any practical injustice – whether the adverse findings were open to the Tribunal – whether the applicant had a real and meaningful hearing – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.376, 424A, 476

Migration Regulations 1994 (Cth), cl. 186.213, 4020

Applicant: HECTOR CAPUYAN TUMIL-ANG

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 140 of 2017

Judgment of: Judge Street

Hearing date: 13 May 2019

Date of Last Submission: 13 May 2019

Delivered at: Sydney

Delivered on: 13 May 2019

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: Mr T Lettenmaier
Sparke Helmore

ORDERS

1. The name of the First Respondent is changed to “Minister for Immigration, Citizenship and Multicultural Affairs” and the Court dispenses with the need for the filing of a further document in that regard.

2. The Application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 13 May 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 140 of 2017

HECTOR CAPUYAN TUMIL-ANG

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 14 February 2017, affirming a decision of the delegate not to grant the applicant an Employer Nomination (Permanent) visa.

2. The applicant is a citizen of the Philippines and applied for an Employer Nomination (Permanent) visa on 25 June 2015. On 29 January 2016, the delegate found the applicant failed to meet the criteria for the grant of the visa because the delegate found the applicant provided bogus documents with his visa application and the delegate found there were no reasons to waive the criteria.

3. The applicant filed an application for review on 5 February 2016. By letter dated 5 December 2016, the applicant was invited to and attended a hearing on 3 February 2017 to give evidence and present arguments.

4. The Tribunal identified the requirements of cl 186.213 of the Migration Regulations 1994 (Cth) (“the Regulations”) in respect of the Public Interest Criterion 4020. The Tribunal referred to two documents being a ‘Certificate of Medium of Instruction’ from St Louis University dated 12 November 2015 and an Official Transcript from the Saint Louis University dated 17 August 2006. The Tribunal found that these documents were provided as evidence that the applicant met the English language requirements.

5. The Departmental check identified that the documents did not originate from the institution and that the institution had no record of the applicant attending their school. When this information was relayed to the applicant, he candidly acknowledged that the documents were not genuine.

6. The Tribunal found that the two documents provided by the applicant were not genuine documents. The Tribunal found the documents were bogus documents and that the applicant did not meet the criterion at cl 4020(1) of the Regulations.

7. The Tribunal turned to the issue of whether the requirements of cl 4020(1) of the Regulations should be waived. The Tribunal referred to the hearing and whether there were compelling circumstances that affected the interests of Australia, or whether there were compassionate or compelling circumstances.

8. The Tribunal referred expressly to the letter from the employer and accepted that the applicant was considered to be a valuable employee. The Tribunal had regard to the employer’s statement that the applicant had assisted them to meet the project timelines and that he enabled them to keep clients and obtain new contracts. The Tribunal having found that the applicant’s contribution was not vital, and accepted that the employer wished to retain the applicant. The Tribunal found that it did not accept that the concerns raised by the employer amount to compassionate circumstances justifying the grant of a visa.

9. The Tribunal referred to the applicant’s position as a valuable employee and that replacing the applicant is an ordinary aspect of business. The Tribunal found that the loss of the applicant as an employee does not amount to a compelling circumstance affecting the interests of the employer or colleagues as Australian citizens or permanent residents or eligible New Zealand citizens.

10. The Tribunal referred to having considered all the circumstances put forward by the applicant but was not satisfied there are compelling circumstances that affect the interests of Australia or compassionate and compelling circumstances that affect the interests of an Australian citizen, or Australian permanent resident, or a New Zealand citizen that justify granting the visa.

11. The Tribunal in these circumstances found the requirements of cl 4020(1) of the Regulations should not be waived and affirmed the decision under review.

Before this Court

1. The proceedings were commenced on 13 March 2017. On 24 May 2017, a Registrar of the Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing, the Court explained to the applicant the nature of the hearing and the applicant confirmed he understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant candidly indicated that he wished to stay in Australia and he had obviously made a useful and valuable contribution to this country in his work. The Court explained to the applicant that it does not have power to determine the matter on compassionate or discretionary grounds, nor does the Court have power to revisit the merits of the application. Nothing said by the applicant from the bar table identified any jurisdictional error.

4. The Court was impressed by the applicant’s candour and it is equally apparent that the Tribunal was too, only this Court has no power to grant relief by reason of the candour of the applicant, or any other compassionate or discretionary ground. The Court can only grant relief where a relevant error is made out, or whereby the Tribunal exceeds its statutory power. No relevant error has been made out whereby the Tribunal has exceeded its statutory power.

Section 376 certificate

1. There was a s 376 certificate provided to the Tribunal dated 15 February 2016. The documents the subject of that certificate were tendered into evidence. The documents are clearly irrelevant and the non-disclosure of a certificate or the documents the subject of a certificate cannot be said to give rise to any practical injustice in relation to the conduct of the review by the Tribunal. No jurisdictional error arises by reason of the non-disclosure of the certificate or the documents the subject of the certificate in the circumstances of the present case.

The grounds

1. The grounds of the application are as follows:

   1. I believe that the administrative appeals tribunal (AAT) did not decide my matter correctly, because the AAT failed to consider all my experience and importance to my employer properly. (I have trained most of my colleague all the aspect of drilling but I believe that they will need more experience before they can train or pass the knowledge to others.)

   2. The AAT didn’t give me a chance to comment on all information in the decision.

   3. The AAT gave irrelevant consideration to some aspect of my matter.

Ground 1

1. On the face of the Tribunal’s reasons in relation to ground 1, it is apparent that the Tribunal did take into account the evidence from the applicant’s employer as referred to above, but found that they did not give rise to compassionate or compelling circumstances to justify the waiver of cl 4020(1) of the Regulations.

2. Ground 1 in substance reflects a disagreement with the adverse finding made by the Tribunal. The adverse finding was open to the Tribunal for the reasons given by the Tribunal, and cannot be said to lack an evident and intelligible justification. No jurisdictional error arises by reason of ground 1.

Ground 2

1. In relation to ground 2, on the face of the material before the Court, the applicant had a real and meaningful hearing. No information has been identified engaging any obligation under s 424A of the Act. For the reasons already given, the documents the subject of the certificate under s 376 of the Act do not give rise to any practical injustice by reason of the non-disclosure of the same or the certificate in the conduct of the review. That is because the documents were patently irrelevant and could not possibly have affected the outcome of the review. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, no relevant consideration has been identified that was taken into account by the Tribunal. Unparticularised, ground 3 is incapable of making out any jurisdictional error. No jurisdictional error arises by reason of ground 3.

2. Accordingly, the application is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 19 July 2019