Umer v MIBP
[2017] FCCA 2934
•29 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| UMER v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2934 |
| Catchwords: MIGRATION – Judicial review application – decision of Administrative Appeals Tribunal – Visitor (Class FA) visa – citizen of Pakistan – Ahmadi Muslim faith – genuineness of visit – whether correct questions considered – whether relevant matters not considered – whether relevant provisions correctly applied – whether denial of procedural fairness – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 29, 97, 357A, 359A, 360, 476 Migration Regulations 1994 (Cth), Sch.2, cll.573.223, 600.211, 600.213, Sch.4, cl.4020 |
| Cases cited: AUE15 v Minister for Immigration & Border Protection & Anor [2016] FCA 331; (2016) 239 FCR 148 Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971; (2015) 298 FLR 388 Mahasneh v Minister for Immigration and Border Protection & Anor [2014] FCCA 1038 |
| Applicant: | RAHEEL UMER |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 571 of 2015 |
| Judgment of: | Judge Lucev |
| Hearing date: | 23 December 2016 |
| Date of Last Submission: | 23 December 2016 |
| Delivered at: | Perth |
| Delivered on: | 29 November 2017 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr PR Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 571 of 2015
| RAHEEL UMER |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant (“Review Applicant”) has made application for judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“AAT Decision” and “AAT” respectively) made on 5 November 2015. The AAT Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) affirming the Delegate’s Decision to not grant the applicant’s mother (“Visa Applicant”) a Visitor (Class FA) visa (“Visitor Visa”).
The AAT Decision is at Court Book (“CB”) 108-118.
Background
The factual and procedural background of this matter is as follows:
a)the Visa Applicant is a citizen of Pakistan and is the Review Applicant’s mother, and she lodged an application for a Visitor Visa on 21 March 2015, so as to visit the Review Applicant who lives in Gosnells, Western Australia, from 15 May 2015 to 11 July 2015, and another son who also lives in Australia: CB 1-14;
b)page 3 of the Visitor Visa application form (“Visitor Visa Application Form”) includes a question “Has this applicant previously travelled to Australia or previously applied for a visa?”. The application form does not record either an answer “Yes” or an answer “No” (“Visa Question”): CB 3;
c)the Visa Applicant had previously been refused a Family Sponsored visa in 2013: CB 43;
d)the Visa Applicant was interviewed (with the assistance of an interpreter) in relation to her application for a Visitor Visa on 5 May 2015: CB 34-36;
e)on 5 May 2015 the Delegate found that the Visa Applicant did not meet the criteria for the grant of a Visitor Visa, and her application for a Visitor Visa was refused: CB 40-45;
f)the Visa Applicant was advised of the Delegate’s Decision refusing to grant her a Visitor Visa by letter dated 5 May 2015 sent to her at the Review Applicant’s residential address: CB 37-39;
g)on 2 June 2015 the Review Applicant made an application to the former Migration Review Tribunal (now the AAT) for review of the Delegate’s Decision refusing to grant the Visa Applicant a Visitor Visa: CB 46-51;
h)by letter dated 1 September 2015 the AAT invited the Review Applicant to attend a hearing before the AAT to give evidence and present arguments relating to the issues arising in his case: CB 52-53;
i)the Review Applicant provided written submissions to the AAT and copies of various documents: CB 56-59 and 60-100;
j)the Review Applicant appeared before the AAT on 16 October 2015 to give evidence and present arguments: CB 101-103 and 109 at [3]; and
k)on 5 November 2015 the AAT Decision was to affirm the Delegate’s Decision not to grant the Visa Applicant a Visitor Visa: CB 108.
AAT Decision
The AAT affirmed the Delegate’s Decision because:
a)the Visa Applicant did not satisfy the requirements of cl.4020(1) of Sch.4 to the Migration Regulations 1994 (Cth) (“Migration Regulations”), (cl.4020 is commonly known as Public Interest Criterion 4020 (“PIC 4020”)); and
b)it was not satisfied that the Visa Applicant genuinely intended to stay temporarily in Australia, and therefore the requirements of cl.600.211 of Sch.2 to the Migration Regulations were not met.
In arriving at these conclusions, the AAT’s key findings were that:
a)when the Review Applicant completed the Visitor Visa Application Form on behalf of the Visa Applicant he was:
i)aware he had not provided the correct information in response to the Visa Question: CB 111 at [14];
ii)made no effort to contact the Department to correct the omission in answering the Visa Question: CB 111 at [14]; and
iii)aware the Visa Applicant had previously been refused a visitor visa: CB 111 at [15],
and the AAT was therefore satisfied that the information given in response to the Visa Question was “deliberately false” in the sense discussed in Trivedi & Ors v Minister for Immigration & Border Protection & Anor [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252 (“Trivedi”): CB 112 at [24];
b)the correct information was relevant to cl.600.211 of Sch.2 to the Migration Regulations (which required the AAT to take into account the Visa Applicant’s migration history): CB 111-112 at [20], and that there were no compassionate or compelling circumstances that affect the interests of Australia or an Australian citizen to justify the granting of the Visitor Visa: CB 112 at [29] and CB 113 at [32];
c)in considering the Visa Applicant’s intention to stay in Australia temporarily, the AAT:
i)accepted that the Visa Applicant had family ties to Pakistan: CB 116 at [53], was elderly and would not work or study in Australia: CB 116 at [54], and that the security situation in Pakistan was poor: CB 116 at [55]; and
ii)was not satisfied that the fact that the Visa Applicant owned property in Pakistan provided an incentive for her return: CB 116 at [54];
d)ultimately, considered that the Visa Applicant’s personal and financial circumstances did not overcome its concerns that she did not genuinely intend to visit Australia temporarily: CB 116 at [57] and [59]; and
e)found that the requirements of cl.600.211 of Sch.2 to the Migration Regulations were therefore not met: CB 116 at [60].
The AAT Decision affirmed the Delegate’s Decision not to grant the Visa Applicant the Visitor Visa: CB 116 at [61].
Judicial Review Application
On 10 December 2015 the Review Applicant lodged the Judicial Review Application with this Court seeking review of the AAT Decision. The grounds of the Judicial Review Application are that:
1. The second respondent erred in its decision by misconstruing cl 600.211 of the Migration Regulations 1994 (Cth) in ascertaining the genuineness of the applicant's visit to Australia.
2. The second respondent did not consider the questions which it was required to ask under cl 600.211 of the sch 2 of the Migration Regulations 1994 (Cth) and therefore fell into jurisdictional error.
3. The second respondent failed to consider the relevant matters as was the requirement of cl 600.211(c) of sch 2 of Migration Regulations 1994 (Cth).
4. The second respondent incorrectly and illegally applied cl 4020(1) of sch 4 of the Migration Regulations 1994 (Cth).
5. The applicant was denied procedural fairness under s 359A of the Migration Act 1958 (Cth).
On 20 January 2016 a Registrar of this Court made orders as follows:
1 The first respondent file and serve a bundle of relevant documents (green book) by 9 February 2016.
2 The applicant file and serve any amended application giving complete particulars of each ground of review relied upon by 8 March 2016.
3 The applicant file and serve any affidavit containing additional evidence (including any transcript of a tribunal hearing), upon which it proposes to rely by 8 March 2016.
4 The first respondent file and serve any affidavit containing additional evidence (including any transcript of a tribunal hearing), upon which it proposes to rely by 22 March 2016.
5 The applicant file and serve written legal submissions 42 days before the hearing.
6 The first respondent file and serve written legal submissions 21 days before the hearing.
7 The matter be listed for final hearing at 10.15am on 23 December 2016 before a Judge.
8 Liberty to either party to apply to the court for a listing for further directions. The other party must be given three days’ clear notice of the time, date and place of that listing
Each of the grounds of the Judicial Review Application is considered separately below.
Ground 1 – whether the AAT misconstrued cl.600.211 of Sch.2 to the Migration Regulations in ascertaining the genuineness of the Visa Applicant’s visit to Australia
Review Applicant’s submissions
The Review Applicant’s submissions on ground 1 are as follows:
a)that the AAT did not consider the main reason for the Visa Applicant visiting Australia, that is to visit and meet her two sons and daughters-in-law, in assessing the genuineness of the Visa Applicant to remain temporarily in Australia;
b)in Khanam v Minister for Immigration & Citizenship [2009] FCA 966; (2009) 111 ALD 421 at [30] per Collier J (“Khanam”) the Federal Court said that:
i)in determining whether a claimed visit to Australia is genuine for the purposes of a claim for a visa the Tribunal is obliged to give genuine consideration to the claimed reason for the visit;
ii)the simple statement of an issue is not automatically tantamount to consideration of that issue; and
iii)the acceptance and rejection of the claimed reason for the visit goes to the core of an applicant’s application and the ‘genuineness’ of the proposed visit;
c)that the Visa Applicant has never been to Australia before where her son, who is the Review Applicant, and daughter-in-law have been living permanently for more than 7 years, and the AAT should have appreciated the fact that every mother would want to see her children at least once a year if not more, and that it was also very reasonable for the Visa Applicant to want to go to Australia at least once and see how her son and daughter-in-law are living and meet their friends, and for her son who is an Australian citizen to be able to bring his mother to his new home;
d)in the AAT Decision there is a simple statement of the claimed purpose of the visit of the Visa Applicant at CB 113 at [36], and very briefly at CB 116 at [59], as being to visit her sons, and the AAT never dealt with this claimed motive and did not explain why the AAT was not satisfied that the Visa Applicant genuinely intended to stay temporarily in Australia for the purpose for which the Visitor Visa might be granted;
e)that the failure to take into account the claimed purpose of the proposed visit in gauging the “genuineness” of the proposed visit is contrary to law: Khanam at [29] per Collier J; and
f)that it is very apparent from CB 114 at [42] and [44], CB 114-116 at [46]-[52], and CB 116 at [55], which form the bulk of reasoning in the AAT Decision, that the AAT, rather than assessing the Visa Applicant’s claimed reason for the visit, seems to have assessed the likely intention of any woman who follows the Ahmadi Muslim religion from Pakistan to return back to Pakistan. By analogy, one can easily opine that any woman who is an Ahmadi Muslim in Pakistan would not be granted a Visitor Visa as they would end up applying for protection in Australia. Such reasoning is not what was contemplated by cl.679.221 (now cl.600.211) of Sch.2 to the Migration Regulations: Khanam at [27] per Collier J.
The Minister’s submissions on ground 1 are as follows:
a)the AAT considered the issue of whether the Visa Applicant intended to stay temporarily in Australia for the purposes of cl.600.211 of Sch.2 to the Migration Regulations in the AAT Decision at CB 113-116 at [35]-[60];
b)when the AAT Decision is read fairly, and as a whole, and not read as if each paragraph is self-contained and necessarily sequential: Minister for Immigration & Border Protection v Tran [2015] FCA 546; (2015) 232 FCR 540; (2015) 150 ALD 446 at [24] per Jagot J, there is no basis for concluding that the AAT misconstrued cl.600.211 of Sch.2 to the Migration Regulations in ascertaining the genuineness of the Visa Applicant’s visit to Australia;
c)the Review Applicant’s reliance upon Khanam is misplaced. In Khanam the Federal Court at [27] and [29] per Collier J concluded that the Tribunal decision there being considered involved jurisdictional error because the Tribunal had failed to take into account the reasons given by the visa applicant and the appellant for the visa applicant to visit Australia, and had formed a view as to the genuineness of the visa applicant’s intentions on the sole basis of whether the visa applicant was an Ahmadi Muslim from Pakistan;
d)by contrast here, the AAT Decision at CB 113-116 at [35]-[60] demonstrates that the AAT did not fail to take into account the reasons why the Visa Applicant wished to visit Australia, and that the AAT Decision as to the genuineness of the Visa Applicant’s intentions was not arrived at on the sole basis of whether the Visa Applicant was an Ahmadi Muslim from Pakistan;
e)further, even if, which is denied, the AAT Decision that it was not satisfied that the Visa Applicant genuinely intends to stay temporarily in Australia would otherwise involve jurisdictional error, the AAT also based its decision on the fact that the Visa Applicant did not satisfy PIC 4020(1) for the purposes of cl.600.213 of Sch.2 to the Migration Regulations; and
f)accordingly, any error by the AAT in relation to its assessment of the genuineness of the Visa Applicant’s intention to stay temporarily in Australia would not amount to jurisdictional error because any such error could not have affected the AAT Decision: Minister for Immigration & Multicultural Affairs v Yusuf & Anor [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] and [84] per McHugh, Gummow and Hayne JJ (“Yusuf”).
Consideration – ground 1
The AAT set out the relevant issue in these proceedings, namely whether cl.600.211 of Sch.2 to the Migration Regulations was met: CB 113 at [35], noting that that required the AAT be satisfied that the Visa Applicant genuinely intended to stay temporarily in Australia for the purpose for which the Visitor Visa was granted, and for the AAT to have regard to whether the Visa Applicant had complied substantially with conditions to which the last substantive visa, or any subsequent bridging visa held by the Visa Applicant was subject, and whether the Visa Applicant intended to comply with the conditions to which the Visitor Visa would be subject, and any other relevant matter: CB 113 at [35].
Contrary to the assertion of the Review Applicant the AAT noted and had regard to the fact that the Visa Applicant sought the Visitor Visa for the purposes of visiting her sons and their families in Australia and that that was a purpose for which the Visitor Visa (being a visa in the Sponsored Family Stream may be granted): Migration Regulations, Sch.2, cl.600.213; CB 113 at [36]. The AAT noted that the Review Applicant wished his mother (the Visa Applicant) to visit Australia to meet friends and family (including in-laws) whilst here: CB 114 at [44]. The AAT noted that the Review Applicant would be providing full board and lodging for the Visa Applicant during her visit to Australia: CB 114 at [45]. In its concluding paragraphs the AAT Decision refers to the fact that the Visa Applicant “would like to see her sons” and that the AAT accepted that to be the case: CB 116 at [59]. In those circumstances, it cannot be said that the AAT did not consider the Visa Applicant’s main reason for visiting Australia, namely to visit and meet her sons and their families.
In Khanam the Federal Court found that the Tribunal had failed to give consideration to the reasons given by the visa applicant for wanting to visit Australia and the visa applicant’s motive for doing so, and that the Tribunal had considered the wrong question, and indeed, one question only, and that was whether or not the visa applicant was an Ahmadi Muslim from Pakistan: Khanam at [29] and [30] per Collier J.
In this case the AAT has set out the purpose of the Visa Applicant applying for the Visitor Visa as being for the purpose of visiting her sons and their families: CB 113 at [36], and otherwise noted that the Visa Applicant’s purpose in visiting Australia is to meet family and friends: CB 114 at [42]. The AAT has indicated that it accepts that the Visa Applicant would like to see her sons, but having regard to the other relevant matters which it was obliged to consider, and the evidence which it said it had “carefully considered”: CB 116 at [53], was not satisfied that the Visa Applicant genuinely intended to stay temporarily in Australia for the purposes of a Visitor Visa: CB 116 at [59]-[60]. This was not a case where the AAT only considered one factor, namely that the Visa Applicant was an Ahmadi Muslim woman from Pakistan, in determining whether or not it was satisfied that the Visa Applicant genuinely intended to stay temporarily in Australia. In that regard, the AAT:
a)had regard to the Visa Applicant’s visa history, including the fact that the Visa Applicant had never previously held an Australian visa, and that she had visited various countries in Europe, Asia and the Middle East: CB 113 at [38];
b)noted that the Visa Applicant did not intend to work or study in Australia, and did not have an intention to apply for any other substantive visa during her visit, and remained married to a Pakistani businessman who had provided for her for all of their married life: CB 114 at [41];
c)noted that the Visa Applicant owned property in Pakistan, but was not satisfied that the fact that she owned property provided an incentive for her to return to Pakistan given that such property might be easily liquidated: CB 114 at [42] and [54];
d)considered:
i)the residency status of the Review Applicant, and the fact that he and his wife had returned to Pakistan in 2014 and that his brother was then currently holidaying in Pakistan with his wife: CB 114 at [44];
ii)that the Review Applicant would provide full board and lodging for the Visa Applicant during her stay in Australia, was prepared to pay a bond if necessary, and was otherwise studying and in gainful employment: CB 114 at [45];
e)by reason of the Review Applicant providing for the Visa Applicant during her period in Australia, and his capacity to do so, was satisfied that the Visa Applicant would have access to sufficient funds for the duration of her visit to Australia: CB 14 at [45];
f)considered the position of the Visa Applicant as a woman who was a member of the Ahmadi religion in Pakistan having regard to country information particularly in relation to discrimination suffered by Ahmadis in Pakistan and the political and security situation in Pakistan: CB 114-115 at [46]-[50];
g)noted that the non-return rate at June 2013 showed that persons from Pakistan travelling to Australia on visitor visas are more likely than persons from other countries not to return to Pakistan: CB 115 at [51];
h)had regard to the Review Applicant’s evidence about the security position in Pakistan vis-a-vis his family, and his assertion that the Visa Applicant was not interested in seeking protection in Australia: CB 115-116 at [52], and accepted that the Visa Applicant had family ties which might provide some incentive for her to return to Pakistan at the expiry of a Visitor Visa: CB 116 at [53]; and
i)considered the country information about the treatment of Ahmadis in Pakistan “and the very high non-return rate of Ahmadis who have visited Australia from Pakistan”: CB 116 at [55].
The AAT indicated that it had “carefully considered the evidence to assess whether the Tribunal is satisfied that the visa applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”: CB 116 at [53], and concluded that it was not satisfied that the Visa Applicant’s personal and financial circumstances would encourage her to return to Pakistan after an approved stay: CB 116 at [58], and whilst it accepted that the Visa Applicant would like to see her sons (and they her), having regard to “relevant matters” it was not satisfied that the Visa Applicant genuinely intended to stay temporarily in Australia for the purpose for which the Visitor Visa was to be granted: CB 116 at [59].
The criticism of the decision made by the Tribunal in Khanam cannot be levelled at the AAT in this case: here the AAT has set out the relevant factors for consideration, and considered each of them in turn. The AAT specifically adverted to the fact that the Visa Applicant wished to visit Australia to see her sons and their families, but had regard to other evidence in determining that the AAT was not satisfied that the Visa Applicant genuinely intended to stay temporarily in Australia for the purpose for which the Visitor Visa is granted. That evidence was not limited to a consideration of the likely intention of the Visa Applicant as an Ahmadi Muslim woman from Pakistan as asserted by the Review Applicant. In addition to considering personal factors specific to the Visa Applicant (such as her lack of intention to work or study or apply for a substantive visa in Australia), her marital status and her ownership of property in Pakistan, and other family ties in Pakistan, the AAT also had regard to and placed not insignificant weight, on the fact that the Visa Applicant was an Ahmadi Muslim, that Ahmadis suffered discrimination in Pakistan, and that they had high rates of non-return to Pakistan when visiting Australia. The AAT also had regard to the political and security situation in Pakistan, both as it affected Ahmadis, and generally, and also to the non-return rate for Pakistanis generally when travelling to Australia on visitor visas. What the AAT did was to decide the degree of weight to be given to the various factors it considered in reaching a decision and reflected its consideration in the AAT Decision which demonstrates that the AAT has as part of its decision-making process engaged in an active intellectual process whereby it has given appropriate consideration to the relevant factors as it was entitled to do: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”); Tran v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 297 at [5]-[7] per Kiefel, RD Nicholson and Downes JJ; AUE15 v Minister for Immigration & Border Protection & Anor [2016] FCA 331; (2016) 239 FCR 148 at [33] per Rares J.
In this case the AAT Decision indicates that the AAT correctly identified the relevant issue, and had regard to all of the relevant evidence and factors for consideration in making its assessment as to whether it was satisfied that the Visa Applicant genuinely intended to stay temporarily in Australia for the purpose for which the Visitor Visa is granted.
In all of the above circumstances, no jurisdictional error in the AAT Decision is established by ground 1.
Ground 2 – whether the Tribunal did not consider the questions which it was required to ask under cl.600.211 of Sch.2 to the Migration Regulations and therefore fell into jurisdictional error
Review Applicant’s submissions
The Review Applicant’s submissions on ground 2 are that:
a)the AAT did not ask the questions which the AAT was required to ask under the cl.600.211 of Sch.2 to the Migration Regulations and therefore fell into jurisdictional error;
b)in Khanna & Ors v Minister for Immigration & Anor [2015] FCCA 1971; (2015) 298 FLR 388 at [34] per Judge Manousaridis (“Khanna”) this Court, interpreting cl.573.223 of Sch.2 to the Migration Regulations, said that the necessary question to ask the applicant seeking temporary entry was what they intend to do after the end of their temporary visa, should they fail in an attempt to stay permanently in Australia through legitimate means, and that if the AAT based its decision on the assumption that the applicant wants to stay in Australia permanently, if she were to qualify, that she does not intend to stay here temporarily, it would fall into jurisdictional error;
c)the AAT Decision, at CB 114 at [42], CB 114-116 at [46] to [52] and CB 116 at [55], where it talks about the security situation in Pakistan and the Visa Applicant being a woman belonging to Ahmadi religion, seems to have come to the conclusion that just because she might be eligible to apply for a protection visa, she is not a genuine visitor; and
d)such reasoning is highly flawed and is not what the Migration Act intended. Just because Australia is a signatory of international treaties for humanitarian purposes, the failure to allow families of Australian citizens to visit for some time and meet their children is highly immoral and illegitimate as well.
Minister’s submissions
The Minister’s submissions on ground 2 are as follows:
a)the facts of Khanna are clearly distinguishable from the facts and circumstances of this case. Khanna concerned an application for a subclass 573 student visa, and the requirement in cl.573.223(1) of Sch.2 to the Migration Regulations that the Minister be satisfied that an applicant is a genuine student because the Minister is satisfied that the applicant “intends genuinely to stay in Australia temporarily”. The applicant had expressed an intention to settle in Australia in the long term if given the opportunity: Khanna at [13] per Judge Manousaridis;
b)in Khanna at [29] per Judge Manousaridis the Court concluded that a person may consistently intend both to reside permanently in Australia, if the person obtains a visa to do so, and to leave Australia at the end of a visa period if, by the end of the period, the person obtains no further visa to permit them to stay in Australia beyond the visa period, and this conclusion was consistent with the policy underlying the introduction of cl.573.223 of Sch.2 to the Migration Regulations as recommended in a 2011 student visa program report which noted that, unlike a tourist visa where it is a basic criterion that an applicant must be a temporary entrant who intends to return home, there is no explicit requirement to assess a student visa applicant in the same way: Khanna at [30] per Judge Manousaridis;
c)the Court further observed in Khanna at [31] per Judge Manousaridis that the words in the report “unless there is a legitimate pathway to staying longer” suggested that the report contemplated that an applicant would be a genuine temporary entrant even if they came to study in Australia with the intention of taking advantage of legitimate pathways to staying longer in Australia;
d)by contrast, the requirement for a visitor visa in cl.600.211 of Sch.2 to the Migration Regulations is that the applicant genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted. Further, the Visa Applicant here did not express any intention that she wished to settle in Australia if there was a legitimate method or pathway to staying longer in Australia. Accordingly, the decision of this Court in Khanna has no application to the issue of whether or not the Visa Applicant “genuinely intends to stay temporarily in Australia for the purposes for which the visa is granted” as required by cl.600.211 of Sch.2 to the Migration Regulations;
e)further, and in any event, the decision in Khanna was overturned on appeal in Minister for Immigration & Border protection v Khanna [2016] FCA 142 (“Khanna Appeal”). In allowing the Minister’s appeal, the Federal Court found that the three factors relied upon by Judge Manousaridis for his conclusion that the Tribunal’s decision involved jurisdictional error did not withstand scrutiny: Khanna Appeal at [21]-[24] per Reeves J, and the Review Applicant’s submissions in reliance upon Khanna cannot stand in light of Khanna Appeal;
f)Khanna was also not followed by this Court in Saini & Anor v Minister for Immigration & Border Protection & Anor [2015] FCCA 2379; (2015) 300 FLR 72 where at [23] per Judge Cameron the Court disagreed with the statement in Khanna that an intention to remain in Australia if qualified to do so at the end of a student visa would not necessarily amount to the lack of an intention to stay temporarily, and found that it would amount to the lack of such an intention because the intention to stay temporarily would not be unqualified as cl.573.223(1)(a) of Sch.2 to the Migration Regulations requires. The intention to stay temporarily in Australia required by cl.600.211 of Sch.2 to the Migration Regulations is likewise unqualified;
g)Khanna was distinguished on its facts in Singh v Minister for Immigration & Border Protection [2015] FCCA 2451 at [83] per Judge Vasta (“Singh”), where the Court also expressed the view that even if it could not distinguish Khanna from the case before it, it would not have followed Khanna in any event, because Khanna was not decided correctly: Singh at [84] per Judge Vasta; and
h)in this case the AAT did not ask itself the wrong question in relation to its consideration of whether or not the Visa Applicant met the requirements of cl.600.211 of Sch.2 to the Migration Regulations. That required that the Visa Applicant “genuinely intends to stay temporarily in Australia for the purpose for which the visa is granted”: CB 113 at [35], was an issue which the AAT considered having regard to various relevant matters, including:
i)the reasons of the Visa Applicant for wishing to come to Australia;
ii)the reasons why the Review Applicant wished his mother to come to Australia;
iii)Department of Foreign Affairs and Trade (“DFAT”) information in relation to the political and security situation in Pakistan;
iv)Departmental information regarding the non-return rate of persons from Pakistan who travel to Australia on visitor visas; and
v)the Visa Applicant’s family ties to Pakistan,
being matters to which the AAT was entitled to have regard in arriving at its conclusion that it was not satisfied that the Visa Applicant genuinely intended to stay temporarily in Australia for the purpose for which the Visitor Visa was granted: KhannaAppeal at [23] per Reeves J, and the Court should conclude that the AAT Decision in relation to this issue does not establish any jurisdictional error.
Consideration – ground 2
Khanna is not good authority for the propositions relied upon by the Review Applicant in his submissions. Khanna has been overturned in Khanna Appeal, and Khanna Appeal is a judgment of the Federal Court binding on his Court unless it can be distinguished or is plainly wrong: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ; BLS15 v Minister for Immigration & Anor [2016] FCCA 507 at [32] per Judge Lucev.
In any event, in the Court’s view Khanna can be distinguished because its rationale related to a particular kind of student visa which might form a pathway for a longer stay in Australia. The rationale in Khanna in relation to a student visa application cannot be applied to the Visa Applicant’s application for the Visitor Visa, because to ask the question as to what the Visa Applicant seeking temporary entry intended to do after the expiry of the Visitor Visa should they fail in an attempt to stay permanently in Australia through legitimate means, is to ignore and invert the purpose for which a Visitor Visa is granted.
Even if reliance is placed on Khanna it does not assist the Review Applicant because it was made clear in Khanna that its rationale was restricted to that of a student visa application, and that the basis of that rationale was to be contrasted with that of a tourist or visitor visa where the basic criterion of such a visa was that an applicant must be a temporary entrant who intends to return to their home country: Khanna at [30] per Judge Manousaridis. There is also binding Federal Court authority which makes it plain that visas which are quintessentially temporary must have their purpose construed accordingly. In Saravanan v Minister for Immigration & Multicultural Affairs [2001] FCA 938 (“Saravanan”) the Federal Court was dealing with a case concerning an application for a Tourist (Short Stay) visa where the visa applicant wished to investigate opportunities to start a business in Australia. The Federal Court observed as follows in Saravanan at [20]-[22] per Heerey J:
20 Classes of visas prescribed under s 31 of the Act (other than those created by the Act itself in ss 32-38) are either Permanent (Sch 1 Pt 1), Temporary (other than Bridging visas) (Sch 1 Pt 2) or Bridging visas (Sch 1 Pt 3). So the concept of a visa which permits a person to enter and remain in Australia for a particular purpose but only for a limited period is fundamental to the Act's visa system (see s 31(1) and (2)).
21 The visa in question here, the Tourist (Short Stay) visa, is quintessentially a temporary one, so the language of cl 676.211 has to be construed in the light of that circumstance and also in a way which is consistent with the structure of the Regulations.
22 ‘Purpose’ in cl 676.211(a) is speaking of what the visa applicant proposes to do during the period for which the visa is to be granted. Of course the applicant may have in mind another purpose as to what he or she wants to do after the end of the visa period but that must necessarily involve another visa - or perhaps naturalisation. That is not the relevant purpose with which s 676.211(a) is concerned.
Otherwise, for the reasons set out in relation to ground 1 above: see [12]-[18] above, it is apparent that the AAT had regard to all relevant matters, considered and weighed the evidence as it was entitled to do, before arriving at a decision as to whether it was satisfied that the Visa Applicant was genuinely intending to stay temporarily in Australia for the purpose for which the Visitor Visa was granted. The approach adopted by the AAT was in that regard a proper and legitimate administrative decision-making process for the purposes of the relevant provisions of the Migration Act and Migration Regulations.
There is therefore no jurisdictional error in the AAT Decision established by ground 2.
Ground 3 – whether the AAT failed to consider relevant matters required by cl.600.211(c) of Sch.2 to the Migration Regulations
Review Applicant’s submissions
The Review Applicant’s submissions on ground 3 are that:
a)the AAT failed to consider the following relevant matters as required by cl.600.211(c) of Sch.2 to the Migration Regulations:
i)the Visa Applicant’s past travel history to various European countries as well a recent visit to Dubai; and
ii)the Visa Applicant’s second son who is on a temporary visa in Australia has never applied for protection;
b)the Visa Applicant has a history of compliance in regards to visas to various European countries and she recently visited Dubai and she has had no problems in getting visas for these countries; and
c)the Visa Applicant’s second son, who belongs to the same religion and is from the same community, has been residing in Australia with his wife on a temporary graduate visa for almost 4 years and has not applied for a protection visa.
Minister’s submissions
In relation to ground 3 the Minister submits that it has no merit, as the AAT clearly considered the matters referred to by the Review Applicant in considering whether the Visa Applicant met the requirements of cl.600.211 of Sch.2 to the Migration Regulations: CB 113 at [38] and CB 114 at [44].
Consideration – ground 3
This ground cannot succeed because each of the matters which the Review Applicant asserts that the AAT failed to consider were, in fact, matters that it did consider, as follows:
a)as to the Visa Applicant’s past travel history to various European countries and Dubai (as well as Asian countries and some other Middle Eastern countries), these were set out CB 113 at [38], but were irrelevant for the purposes of the AAT being satisfied that the Visa Applicant had complied substantially with the conditions of the last substantive visa or any subsequent bridging visa held, that being a reference to a visa under the Migration Act, and not foreign visas to enter countries other than Australia: see the definition of “visa” in s.5(1) of the Migration Act, referring to s.29 of the Migration Act. To the extent that the Visa Applicant’s travel history might have constituted a relevant matter it is not apparent that the AAT disregarded that travel history when having regard to the Visa Applicant’s personal circumstances when considering whether or not it was satisfied that the Visa Applicant genuinely intended to stay temporarily in Australia for the purposes for which the Visitor Visa was granted, particularly in circumstances where the AAT has specifically considered the issue of non-return rates of visitors from Pakistan travelling to Australia on visitor visas, and not just Ahmadis in that context, but also the incidence of Ahmadi who had attempted to change their visa status while in Australia: CB 115 at [48] and [51]; and
b)the circumstances of the Visa Applicant’s second son were specifically set out by the AAT: CB 114 at [44], including the circumstances of the second son’s return to Pakistan with his wife in 2014: CB 114 at [44], and whose circumstances the AAT obviously considered in the context of all the relevant matters that it had to consider in determining whether the Visa Applicant genuinely intended to stay temporarily in Australia for the purpose for which the Visitor Visa was granted: CB 114 at [44]; CB 115 at [52]; CB 116 at [53] and [57]-[59].
In the above circumstances, ground 3 does not establish jurisdictional error in the AAT Decision.
Ground 4 – whether AAT incorrectly and illegally applied cl.4020(1) of Sch.4 to the Migration Regulations
Review Applicant’s submissions
The Review Applicant’s submissions on ground 4 are that:
a)the AAT incorrectly applied PIC 4020 and did so without any evidence whatsoever;
b)the Visitor Visa Application Form was filled out by the Review Applicant at the time of application. The application form is a computer based online form which had various questions in it which demanded of the person filling it to answer them in a “yes” or “no” by clicking on either a “yes” or a “no”;
c)the format of the online application form is such that if a person filling the form does not click either a “yes” or a “no” to any one of those questions, that person cannot proceed further through the application;
d)the AAT applied PIC 4020 on the grounds that the Visa Question, (namely “Has the applicant previously travelled to Australia or been refused a visa to Australia?”) was not answered at all and therefore it amounted to false and misleading information by the Review Applicant;
e)the AAT failed to consider the probable technical error which occurred in the Department’s website and therefore in the online Visitor Visa Application Form as it could not have proceeded further without the person filling in the form first answering the Visa Question with either a “yes” or a “no”;
f)PIC4020 clearly points out that it has to be the “applicant” who gives or causes to give the misleading information, and in this case it was not the “applicant” who failed to give the required information but the computer systems of the Department which led to the omitting of the required information; and
g)the element of fraud or deception necessary for invoking PIC 4020: Trivedi & Ors v Minister for Immigration & Border Protection & Anor [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252 (“Trivedi”) was never present as alleged by the AAT as the Review Applicant simply did not answer the Visa Question which was never asked. All the Review Applicant was required to do was fill in the Visitor Visa Application Form which he did to the best of his knowledge and which was correct in all its contents.
Minister’s submissions
The Minister’s submissions as to ground 4 are as follows:
a)the AAT was aware of Trivedi and took it into account in determining whether or not the Visa Applicant met the requirements of PIC 4020: CB 112 at [21] to [26];
b)in particular, the AAT was correct in stating at CB 112 at [21] that “an element of fraud or deception by some person is necessary to attract the operation of [PIC 4020(1)]”: Trivedi at [33] per Buchannan J, with whom Allsop CJ at [1] and Rangiah J at [56] agreed;
c)having regard to the particular facts and circumstances here, the AAT concluded that it was satisfied that at the time the Review Applicant completed the Visitor Visa Application Form on behalf of the Visa Applicant, the Review Applicant was aware that he had omitted to respond to the Visa Question correctly, and that after considering the available evidence, the AAT was satisfied that the information given was deliberately false in the sense discussed in Trivedi: CB 112 at [23] and [24];
d)the Review Applicant is impermissibly seeking to challenge the merits of the conclusion in the AAT Decision that the Visa Applicant did not meet the requirements of PIC 4020; and
e)even if, which is denied, the AAT Decision regarding PIC 4020(1) involved legal error, that error would not amount to jurisdictional error as the AAT also determined that the Visa Applicant did not meet the requirements of cl.600.211 of Sch.2 to the Migration Regulations, and therefore any error by the AAT in relation to PIC 4020 could not have affected its decision: Yusuf at [82] and [84] per McHugh, Gummow and Hayne JJ.
Consideration – ground 4
In Trivedi the Full Court of the Federal Court found as follows with respect to the character or quality of documents or information to which PIC 4020 is directed:
It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could not explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended and accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.
Trivedi at [32]-[33] per Buchanan J (with whom Allsop CJ at [1] and Rangiah J at [56] agreed).
In Trivedi it was further said:
In my view, it is not necessary … to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.
Trivedi at [43] per Buchanan J.
In Patel v Minister for Immigration & Border Protection [2015] FCAFC 22; (2015) 145 ALD 566 (“Patel”) the Full Court of the Federal Court was dealing with an appeal from this Court in relation to circumstances where the appellant had submitted a test form purporting to show test scores demonstrating English language proficiency which differed from a verified test form showing different test scores for English language proficiency which were below the requisite level for the grant of a visa. The question arose as to whether the submitted test form was a bogus document for the purposes of PIC 4020, and whether the Tribunal was required to make inquiries about the authenticity of the non-verified test form submitted by the appellant to the Tribunal.
In Patel, Justice Buchanan, who delivered the primary judgment of the Full Court in Trivedi, summarised Trivedi as follows:
In Trivedi …, a Full Court decided that “an element of fraud or deception is necessary in order to attract the operation of PIC 4020” (see at [33]) and “that PIC 4020 is directed to information or documents which are purposely untrue” (see at [49]). It was also held that it was not necessary, in order to engage the operation of PIC 4020, that a visa applicant “was knowing or complicit in the deceptive character of the information … furnished” (see at [43], [45], [50], [52]).
Patel at [7] per Buchanan J.
In Patel the appellant’s position was that she was not responsible for any alteration or forgery of the submitted test form, and she was unable to explain the lack of conformity between the non-verified and verified test forms. But, as Justice Buchanan observed, whether the appellant was responsible for any alteration or forgery of the document “was not the test to be applied”: Patel at [13] per Buchanan J.
In Patel, in relation to the consideration in that case by the Tribunal of the allegedly bogus document, it was observed that:
… it is clear that the … [Tribunal] gave direct consideration to whether the document was a bogus document within the meaning of s 97 of the Act and whether PIC 4020 was engaged in relation to it. There was no error in that analysis, whether by reference to the judgment of this Court in Trivedi or otherwise which discloses jurisdictional error.
Patel at [19] per Buchanan J.
The Full Court of the Federal Court also observed that a difficulty which confronted the argument of the appellant in Patel was that the Tribunal had explained the basis for its reasonable suspicion by reference to the online verification system for the test results and given the appellant an opportunity to respond to the content of both the verified and non-verified test record documents. It was said that given the limited facts presented by the appellant the state of reasonable satisfaction was a conclusion readily open to the Tribunal: Patel at [36]-[37] per Flick J. Justice Flick went on in Patel to observe at [44] that:
…. There was an obvious conflict. The conflict was brought to the attention of the Appellant and she was given an opportunity to respond. She has been afforded procedural fairness to respond to that material upon which the Tribunal conducted its “review”.
In Patel it was also held that there was, in the circumstances, no duty which would have required the Tribunal to make further inquiries, there being no duty to make such inquiries unless an obvious inquiry might reveal a critical fact the existence of which is easily ascertained and which in some circumstances might supply a sufficient link to the outcome to constitute a failure to review: Patel at [20]-[22] per Buchanan J and [39]-[46] per Flick J.
The AAT set out and understood the law with respect to whether information given was false or misleading in a material particular: CB 110 at [7]-[9].
The AAT set out factual material relevant to ground 4 as follows:
11. The review applicant submitted that he lodged the application on behalf of his mother. He submitted that when it came to the question there was no option to select “yes” or “no” and it was an online application error. He attached an electronic copy of the application to show that there was no option. He argued that it is important to note that with electronic forms it is not possible to continue unless all questions are answered.
13. The Tribunal confirmed with the applicant that he was aware that his mother had previously been refused a visa for Australia at the time he completed this application for a visitor’s visa. The Tribunal asked the applicant why he did not inform the department at any time following his completion of the form that there was an error and the question had not been answered correctly. The Tribunal referred him to the declarations on the application form warning about the provision of false and misleading information. The Tribunal referred to his declarations that the information he provided was correct and that he indicated he was aware of the consequences if information provided was found not to be correct. The Tribunal referred to the information provided that he was studying the Graduate Diploma in Migration studies at Murdoch University and asked whether he was aware from his studies as to the need to complete application forms for visas correctly. The applicant indicated he was aware but commented that the department did not contact him but spoke to his mother who did not complete the form. The Tribunal indicated that his mother was the visa applicant and the person on whose behalf he was completing the application form.
14. The Tribunal considers that at the time he completed the application form on behalf of his mother, the review applicant was aware that he had not provided the correct information in response to the question. He made no effort to contact the department to correct the omission in answering the question.
15. After considering the responses by the review applicant, the Tribunal considers that at the time the review applicant completed the form on behalf of the visa applicant, he was aware that the visa applicant had been previously refused a visitor’s visa.
16. The Tribunal accepts that the review applicant completed the application form on behalf of the visa applicant. However it is the visa applicant who is ultimately responsible for the veracity of the information supplied to support an application.
17. The Tribunal finds that omitting to respond to the question as to whether the visa applicant had previously applied for a visa has resulted in the department being given incorrect information in relation to that visa application. Therefore, the Tribunal finds that the visa applicant did give or cause to be given to the Department incorrect information in relation to the application for a visitor visa, as she had previously had a visitor visa application refused in 2013.
CB 110-111 at [11] and [13]-[17].
The AAT went on to consider the “central issue” of whether the response was false or misleading information in a material particular, and in that regard observed as follows:
19. The phrase “information that is false or misleading in a material particular” is defined in PIC 4020(5) which states that:
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.
20. The Tribunal considered whether the information requested at the particular question is relevant to any of the criteria the Minister may consider when making a decision on the visitor visa application. The Tribunal notes that cl.600.211 requires the decision maker to take into consideration a person’s migration history – specifically whether the applicant has complied with conditions and any other relevant matters in determining whether a person has a genuine intention to stay temporarily in Australia. In addition, the fact of whether a person has had a visa cancelled previously is relevant to whether a person meets the requirements in cl.600.221(4) and specifically if the applicant satisfies the special return criteria in clauses 5001, 5002 and/or 5010. The Tribunal finds that the information given in response to the question is relevant to the criteria the Minister may consider when making a decision in relation to the visa application.
21. The next issue the Tribunal considered is whether the information is false or misleading at the time it was given. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
22. According to the delegate’s decision, when asked by a representative of the Department as to why she did not declare she had previously had a visa refused, the visa applicant responded that her son had completed the application.
23. The review applicant confirmed at hearing that he was aware at the time he completed the application that his mother, the visa applicant, had previously applied and was refused a visa to visit Australia. He made no effort to correct the information with the department or to draw to their attention the alleged difficulties he was having completing the electronic application form and in answering that particular question. The Tribunal is satisfied that at the time he completed the application form on his mother’s behalf, the review applicant was aware that he had omitted to respond to the question correctly.
24. After considering the available evidence, Tribunal is satisfied that the information given was deliberately false in the sense discussed in Trivedi’s case.
25. Accordingly, the Tribunal finds that there is evidence that the visa applicant caused to be given to the Minister (via the review applicant) information that is false or misleading in a material particular that was false and misleading at the time it was given, and that was relevant to cl.600.213.
26. Therefore, the Tribunal finds that the visa applicant does not meet cl.4020(1).
CB 111-112 at [19]-[26].
Whether an answer is misleading does not necessarily depend upon its correctness, but may also depend upon what is omitted from the answer: Sandoval v Minister for Immigration & Multicultural Affairs [2001] FCA 1237; (2001) 194 ALR 71 at [46] per Gray J.
In this case the Review Applicant was faced with the Visa Question which was as follows:
Has this applicant previously travelled to Australia or previously applied for a visa?
As with many other questions on the Visitor Visa Application Form at CB 1-14, the Visa Question required the Review Applicant to give a “Yes” or “No” answer in relation to whether or not the Visa Applicant had previously travelled to Australia or previously applied for a visa. The Review Applicant did not answer the Visa Question at all: CB 3, and says that the electronic Visitor Visa Application Form did not allow him to answer the Visa Question. The Review Applicant did not take any steps to clarify with the Department (or anyone else) the fact that the Visa Question was not answered, or why it was not answered, or what the correct answer was.
The Visa Question asks whether the Visa Applicant has done one or other or both of the things referred to in the question, namely previously travelled to Australia or previously applied for a visa. In this case, the Visa Applicant had previously applied for a visa (and been refused), and the Review Applicant knew this. By not answering the Visa Question at all and not taking any steps to clarify the non-answer, the information provided by the Review Applicant, and therefore by the Visa Applicant, that is what was omitted from the answer, or not answered was misleading: Trivedi at [32]-[33] and [43] per Buchanan J, as found by the AAT.
In the above circumstances, there was no error in the analysis of the AAT Decision: Patel at [19] per Buchanan J, and the AAT was correct to find that the Review Applicant’s failure to answer the question was an omission which was misleading for the purposes of PIC 4020(5). In the circumstances, no jurisdictional error in the AAT Decision is established by ground 4.
Ground 5 – whether Visa Applicant was denied procedural fairness under s.359A of the Migration Act
Review Applicant’s submissions
The Review Applicant’s submissions on ground 5 are as follows:
a)the applicant was denied procedural fairness under s.359A of the Migration Act;
b)the AAT at CB 111 at [14] and CB 112 [23] has stated that it is satisfied that at the time the Review Applicant completed the Visitor Visa Application Form on behalf of the Visa Applicant, the Review Applicant was aware that he had omitted to respond to the Visa Question correctly;
c)how the AAT came to this conclusion is very puzzling as the Review Applicant had told the AAT that he was not aware of the Visa Question as it was not there when he was filling in the Visitor Visa Application Form, and that the AAT came to this conclusion on its own accord, thereby denying procedural fairness in the decision-making process;
d)the Review Applicant had no knowledge whatsoever that the Visa Question was in the Visitor Visa Application Form, much less that he omitted to answer or provided a wrong answer to the Visa Question;
e)the Review Applicant does not know how the Department came to the conclusion that the Review Applicant was aware of the omitted information, and that the information would be used against him in the decision-making process; and
f)the Review Applicant was well aware of PIC 4020 and its consequences and was studying Migration Law at Murdoch University at the time of the Visitor Visa application. He was well aware of the fact that the Department keeps information pertaining to previous applicants in their systems for as long as 25 years. He would have never omitted to answer the Visa Question which he knew would most certainly invite PIC 4020 by the Department. However, he was not at such a stage of his migration agent career where he had become an expert on all the application forms and would have answered questions which were never asked.
Minister’s submissions
The Minister’s submissions on ground 5 are as follows:
a)there was no breach by the AAT of s.359A of the Migration Act, which imposes an obligation on the AAT to give to an applicant particulars of “information” that the AAT considers would be the reason, or part of the reason, for affirming the decision that is under review, and which is not information of a kind specified in s.359A(4) of the Migration Act. In the AAT Decision at CB 111 at [14] and CB 112 at [23] the AAT is not referring to information, but is rather setting out aspects of the AAT’s reasoning and conclusions. Section 359A of the Migration Act therefore has no application as “information” does not encompass the AAT’s subjective appraisals, thought processes or determinations: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ (“SZBYR”);
b)section 359A(1) of the Migration Act also does not apply to information that the applicant gave for the purposes of the application for review or that the applicant gave during the process that led to the decision under review: Migration Act, s.359A(4)(b) and (ba). The AAT’s conclusions at CB 111 at [14] and CB 112 at [23] were based on the Visitor Visa Application Form that the Review Applicant submitted on behalf of the Visa Applicant, the Review Applicant’s written submissions to the AAT, and the information the Review Applicant gave to the AAT at the AAT hearing, which included that the Review Applicant completed the Visitor Visa Application Form for the Visa Applicant, that the Review Applicant was aware of the question on the Visitor Visa Application Form as to any previous visa applied for by the Visa Applicant, and that he knew that the Visa Applicant had previously applied for and been refused a visa in 2013, and that he was aware of the need to complete visa forms correctly, but did not advise the Department as to the Visa Applicant’s previous visa application: CB 110-111 at [11]-[13]; and
c)in any event, even if there was a failure by the AAT to comply with s.359A of the Migration Act (which is denied) in relation to its assessment of PIC 4020, such a failure did not amount to jurisdictional error as the AAT had also concluded that the Visa Applicant did not meet the requirements of cl.600.211 of Sch.2 to the Migration Regulations: Yusuf at [82] and [84] per McHugh, Gummow and Hayne JJ.
Consideration – ground 5
The issue of the failure to declare the previous refusal of an Australian visa for the Visa Applicant was clearly in issue, it being specifically identified in the Delegate’s Decision as the reason for the refusal of the Visitor Visa: CB 43-44.
The AAT identified the issue with respect to the Visa Question, and importantly that there was never any disclosure of the correct answer to the omitted answer to the Visa Question (at CB 3) as to the Visa Applicant previously being refused a Family Sponsored visa to enter Australia. The AAT put the issue to the applicant, and gave him an opportunity to respond. The AAT’s conclusion with respect to the omitted answer to the Visa Question was open to it, particularly when the Visitor Visa Application Form at CB 3 contains the Visa Question, unanswered by the applicant. In that regard, the Court notes that the AAT was not required to accept uncritically any or all claims made by the Review Applicant: Minister for Immigration & Ethnic Affairsv Guo & Anor (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481, CLR at 596 per Kirby J; Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J; Mahasneh v Minister for Immigration and Border Protection & Anor [2014] FCCA 1038 at [23] per Judge Emmett (“Mahasneh”), and nor does the AAT have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J; Mahasneh at [23] per Judge Emmett.
In relation to procedural fairness the Court considers that the AAT discussed with the Review Applicant those aspects of the evidence and information before the AAT (and which were before the Delegate) that related to the completion of the electronic Visitor Visa Application Form, and in particular those aspects of the evidence that may be important to the AAT Decision, and upon which the AAT findings might be made: see CB 110 at [10]-[12]; CB 110-111 at [13]; CB 111 at [14]; CB 112 at [22]-[23].
In the above circumstances there was no failure to comply with ss.357A and 360 of the Migration Act in the sense referred to in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 at [33]-[35] and [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ (“SZBEL”); see also Patel at [36]-[37] and [44] per Flick J. Nor was there any denial of procedural fairness for the purposes of s.359A of the Migration Act, there being no breach of that section in circumstances where the relevant information related to the AAT’s thought processes or determinations: SZBYR, and where the relevant information was clearly identified in the Delegate’s Decision and was addressed by the Review Applicant in his submissions to the AAT.
It follows that in the above circumstances no jurisdictional error in the AAT Decision is established by ground 5.
Conclusion and orders
The AAT Decision is only reviewable by this Court if it is affected by jurisdictional error: Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. An error by the AAT will only constitute jurisdictional error if the AAT:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
thereby affecting the AAT Decision and resulting in the AAT exceeding or failing to exercise the authority or powers given to it under the Migration Act: Yusuf at [82] per McHugh, Gummow and Hayne JJ. Jurisdictional error may also arise by reason of a breach of the procedural fairness required by the provisions of the Migration Act: SZBEL at [32]-[33] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
In the circumstances, and for the reasons set out above in relation to each of grounds 1 to 5 the AAT Decision is not affected by jurisdictional error, and it follows that the Judicial Review Application must be dismissed. There will be order an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Associate:
Date: 29 November 2017
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