Vyas v MIMAC
[2013] FCCA 1226
•2 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| VYAS & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1226 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision –where audit of first applicant’s IELTS found that results submitted did not match those on the IELTS verification website – where applicants refused skilled (Residence) Class VB visa because of non-compliance with Public Interest Criteria 4020 – whether applicants may be object of compelling or compassionate circumstances – whether compelling or compassionate circumstances of applicants sufficient to satisfy waiver grounds – whether a connection between circumstances and Australia, an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen required – whether Tribunal failed to consider applicants’ circumstances – whether Tribunal erred in its consideration of waiver provision 4020(4). |
| Legislation: Migration Act 1958 (Cth) ss.105, 359A |
| Vyas & Anor v Minister for Immigration [2012] FMCA 92 Alcan (NT) Alumina Pty Ltd v The Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Project Blue Sky v ABA (1998) 194 CLR 355 Kennon v Spry (2008) 238 CLR 366 Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417 |
| First Applicant: | MEGHABAHEN AMITKUMAR VYAS |
| Second Applicant: | AMITKUMAR ANANDPRASAD VYAS |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2632 of 2012 |
| Judgment of: | Judge Raphael |
| Hearing date: | 21 August 2013 |
| Date of Last Submission: | 21 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 2 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | D’Ambra Murphy Lawyers |
| Counsel for the Respondent: | Mr P. M. Knowles |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicants to pay the first respondent’s costs assessed in the sum of $6,646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2632 of 2012
| MEGHABAHEN AMITKUMAR VYAS |
First Applicant
| AMITKUMAR ANANDPRASAD VYAS |
Second Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This application requires the court to interpret the public interest criteria (PIC) found in Schedule 4 to the Migration Regulations 1994 (Cth)[1] as clause 4020. The applicants were refused a skilled (Residence) Class VB visa because of non-compliance with that clause. The criteria for this visa, a skilled sponsor visa, are contained in subclause 886 in Sch.2 of the Regulations. The relevant parts of that subclause are 886.223 and 886.225. These regulations are set out below:
[1] The ‘Regulations’
“886.223
(1) The skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant's nominated skilled occupation.
(2) If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of studying a registered course.
886.225
The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021 ; and
(b) if the applicant had turned 18 at the time of application--satisfies public interest criterion 4019.
4020 (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse the application;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
"information that is false or misleading in a material particular"means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.”
The first applicant was the principal applicant for the Class VB visa, and she was required by cl.886.213 to have competent English which in her case meant that she had an IELTS test score of at least 6 for each of the four test components of speaking, reading, writing and listening in respect of a test conducted not more than two years before the day on which the application was lodged. Mrs Vyas, who has been living in Australia for some time, was unable to obtain a speedy appointment for her test in this country and chose to undertake the test in India. She booked two tests: one on 21 February 2009 and another in March of that year. She intended to provide the better of the two as her support for the visa and compliance with reg.886.213. In the event she submitted a certified copy of an IELTS test report from centre number IN122 for a test taken on 21 February 2009 which showed results of 6.5, 6, 6 and 6.5 for the four components. This result, on its face, satisfied cl.886.213(b) of Sch. 2.
Mrs Vyas’ result was the subject of a departmental audit. It was checked against the scores on the IELTS verification website, and on 10 September 2010 an officer of the Department wrote to Mrs Vyas informing her that the scores did not match. The scores on the verification website indicated that she had only obtained scores of 5.5 and 5.5 in writing and reading. She was provided with an opportunity to comment and told that on receipt of the letter she made enquiries in India as to what might have occurred and discovered that the test centre had closed down. She was unable to explain the discrepancy but claimed, and continued to claim, that she believed that the certificate she had submitted with her application accurately recorded her results.
When the application was considered by the Minister’s delegate it was said that her response did not address the inconsistencies in the score and that, as the scores supplied did not match the scores verified by IELTS, it was deemed that the test results supplied by her were false and misleading. This brought into play the provisions of cl.886.224:
“No evidence has become available since the time of the application that the information given or used:
(a) to meet the requirements of item 1136 of Schedule 1; or
(b) to satisfy Subdivision 886.21; or
(c) to satisfy clause 886.221; or
(d) to obtain the skills assessment mentioned in subclause 886.223(1);
was false or misleading in a material particular.”
The applicant applied for review of the delegate’s decision from the Migration Review Tribunal.[2] Prior to the Tribunal determination cl.886.224 of Sch. 2 was repealed and replaced by cl.886.225 and public interest criterion 4020 as extracted. The Tribunal affirmed the decision under review, but its decision was the subject of a successful application to this court where, in Vyas & Anor v Minister for Immigration [2012] FMCA 92, Driver FM, as he then was, found that the Tribunal had breached the requirements of s.359A of the Migration Act 1958 (Cth)[3] and returned the matter to the Tribunal to be heard and determined according to law. His Honour also determined that PIC4020(1) did not incorporate a mental (or mens rea) element before PIC 4020 could be invoked. That finding was not the subject of any appeal and has been accepted by both parties.
[2] The ‘Tribunal’.
[3] The ‘Act’.
When the matter came before the reconstituted Tribunal, the focus was placed upon the waiver provision in 4020(4). Evidence was produced that the second applicant was holding down a responsible job at a business known as ‘The Fruit Box’. He had managerial responsibilities for up to 20 persons, and it would be difficult to replace him because of his detailed knowledge of the business of some years. It was also said that this might endanger the employment by the company of persons in the Auburn area where it was situated, and that this provided “compelling circumstances” or “compassionate or compelling circumstances” within PIC 4020(4). The Tribunal’s consideration of this factor is contained at [68-71] of the Tribunal’s reasons for decision:
“[68] The Tribunal has considered whether to waive the requirements of subclause 4020(1). In considering this issue the Tribunal must consider whether there are compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. It has been claimed that the circumstances exist primarily as a result of the applicant’s husband’s employment as a Warehouse Manager for the Fruit Box, an Australian company distributing fruit, milk and other goods to various businesses. It has been claimed that the applicant’s husband, Mr Vyas, is a highly skilled and valued employee who has assisted the owners and management to develop the business which has resulted in a significant increase in its turnover. It has been claimed that it would be possible to replace Mr Vyas but it would be extremely costly to recruit another person to the position of Warehouse Manager and it would have a considerably deleterious effect on the business should Mr Vyas have to be replaced. It has also been argued that the company provides an important role in providing employment, particularly in the Auburn area and western Sydney.
[69] The Tribunal accepts that Mr Vyas is a well regarded and valuable employee and that it will be disadvantageous for the business to recruit another person to perform the duties of a warehouse manager. However, although the Tribunal accepts that Mr Vyas has developed a range of skills that are required in order to undertake his position, the Tribunal is not satisfied that the evidence established that another person could not be trained to undertake the position of a Warehouse Manager, even taking into account the specialised nature of the business. The Tribunal further considers that the cost of recruiting, training and replacing staff members is an ordinary aspect of the operation of almost all businesses which occurs on an ongoing basis. The Tribunal is not satisfied that the difficulties and associated costs in recruiting another person to the position of Warehouse Manager establishes that there are compelling circumstances that affect the interests of Australia or that it establishes that there are compelling or compassionate circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen which justify the grant of the visa. Whilst the Tribunal accepts that the company employs several Australian citizens and contributes to the Australian economy, and has accepted that there will be costs associated with replacing the applicant and retraining another person, the Tribunal is not satisfied Mr Vyas’ departure from the company will affect its ability to continue to employ Australian citizens and permanent residents. The Tribunal is not satisfied that this establishes that there are compelling circumstances that affect the interests of Australia or compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
[70] The Tribunal has also considered the applicant’s claims at the hearing that her family members in Australia will “totally break down” if the visa is refused. Whilst the Tribunal accepts that it will be distressing for the applicant and her husband to be separated from family members in Australia and that their family members will be saddened by the applicant’s and her husband’s return to India, the Tribunal is not satisfied that there is any evidence that it will have such a deleterious effect such that they will “totally break down”, particularly given her evidence that her family members in Australia are a married couple with children. In such circumstances, the Tribunal considers that they will undoubtedly have the support of each other upon the applicant and her husband’s departure from Australia. The Tribunal is not satisfied that the effect of the applicant and her husband’s family members establishes that there are compelling circumstances that affect the interests of Australia or that it establishes that there are compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen which justify the grant of the visa.
[71] The Tribunal has considered the submission that the applicant did not have any involvement in altering the IELTS test results and that this is a consideration in the exercise of the waiver provision in PIC 4020. The Tribunal does not accept that this factor is relevant in considering the waiver provision given that the wording of the provision relates to the effect that the visa not being granted will have on Australia and Australian citizens, permanent residents and eligible New Zealand citizens. Nor does the Tribunal accept that the fact that the applicant has since obtained ‘competent English’ in an IELTS test undertaken after the lodgement of the application to the Tribunal establishes that there are compelling or compassionate circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen which justify the grant of the visa.”
It would be seen that the Tribunal misquotes (b) by including in it a reference to the interests of Australia, but it was not suggested to the court at hearing that anything turned on that. The error which the applicant claims occurred in the Tribunals’ consideration of her application is contained at [71], the effect of which, it is said, is to exclude from the definition of ‘compassionate or compelling circumstances’ the circumstances of the applicants, it being said that:
“The wording of the provision relates to the effect that the visa not being granted will have on Australia and Australian citizens, permanent residents and eligible New Zealand citizens.”
At the commencement of his submissions Mr Karp, for the applicant, indicated that the court should bear in mind the context within which these provisions operated. He reminded the court that under s.105 of the Act there was a legal obligation to tell the Department when any information provided by an applicant to it is found to be incorrect. This legal requirement to inform upon oneself is taken up in PIC 4020(3), and that has the effect of making the visa unavailable to any person who may have inadvertently or innocently provided false and misleading information, discovered that fact and advised the Department thereof. Of course, information must be relevant to any of the criteria that the Minister may consider pursuant to PIC 4020(5)(b) which would appear to provide protection against innocent mistakes, in completion of the form, or provision of non-relevant information.
The applicant then proceeds to remind the court of the seminal dicta upon statutory interpretation found in Alcan (NT) Alumina Pty Ltd v The Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47]:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischiefit is seeking to remedy.”
He referred also to the views of the plurality McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v ABA (1998) 194 CLR 355[4] at [69-71]:
[4] Project Blue Sky.
“69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". InCommissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent".”
Finally, Mr Karp referred to the comments of Gummow and Hayne JJ in Kennon v Spry (2008) 238 CLR 366 at [90]:
“The questions that arise in these matters raise a dispute about construction of the Act. That dispute is not resolved by considering only the ways in which the term "property" may be used in relation to trusts of the kinds described as "discretionary trusts". As Binnie J, writing for the Supreme Court of Canada, has recently said (albeit in a different statutory context):
"The task is to interpret [the relevant statutes] in a purposeful way having regard "to their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament"."
And as Binnie J also said, because an interest (in that case, a fishing licence): "may not qualify as "property" for the general purposes of the common law does not mean that it is also excluded from the reach of the statutes. For particular purposes Parliament can and does create its own lexicon."
This approach was supported by the respondent.
The applicant submits that the criterion found in PIC 4020(4)(b) does not require the Australian citizen or permanent resident to be the subject of or to suffer “compelling or compassionate circumstances”, it requires those circumstances to affect such people. Similarly he argues that PIC 4020(4)(a) does not require the interests of Australia to be in or to suffer compelling circumstances, it merely required such circumstances to affect “the interests of Australia”. The applicant submits that the wording, taken in context, of these clauses indicates that someone must be in or be the subject of or suffer compelling or compelling or compassionate circumstances, and that such circumstances must affect the interests of Australia or Australian citizens. The applicant argues that the person who must suffer the compelling or compassionate circumstances can include an applicant or a member of his or her family provided that those circumstances don’t just affect the applicant but also affect Australia or an Australian citizen or permanent resident.
Mr Karp argues
“The wording of PIC 4020(4) supports this construction. Indeed, given that PIC 4020 does not require knowledge on the part of an applicant that information could be false or misleading, it would be unjust if the circumstances of people who gave documents or information in good faith, without knowing that they were in some way incorrect could not be taken into account in the exercise of the discretion. It would be even more inequitable if PIC 4020(4)(b) could not take account of the circumstances of a person who, not being aware that the information he or she gave was false or misleading when it was given, corrected the information pursuant to the duty imposed by s. 105 of the Migration Act. He or she would be caught by PIC 4020(3). In such circumstances honesty would be penalised. […] the result would be unreasonable and could not have been intended by the legislation.”
He continues that this situation would result in a form of unfairness considered by the High Court French CJ, Gummow and Crennan JJ in Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417[5] at [26]:
“Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of theMigration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgement of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.”
[5] Berenguel.
In my view, the reference to Berenguel does not avail the applicant. In that case the purpose of the regulation was to ensure that the skills assessment had been carried out relatively recently. By allowing a skills assessment that had been carried out after the date of application, the Court was acting in support of the purpose of the regulation. In the instant case, the purpose of the regulation is to prevent the use of bogus or false and misleading material in visa applications by making the applicant provider of such material or information unable to pass the public interest criteria. That purpose is only mitigated by the discretionary power found in PIC 4020(3) about which the Explanatory Statement says:
“[PIC 4020(3)] provides the Minister with a discretionary power to waive the requirements of the clause 4020 in circumstances where the Minister is satisfied that there are sufficient grounds to justify the granting of the visa. It is intended that the granting of the waiver relates solely to compelling circumstances affecting Australia’s interests (or the compassionate and compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen), not the interests of the visa applicant.”
In the court’s view, the Explanatory Memorandum is of assistance in considering the plain words of the regulation, such that it cannot be said that it would be sufficient for the applicants to demonstrate that their circumstances are compelling or compassionate alone. There has to be a connection with Australia or an Australian citizen, Australian permanent resident or eligible New Zealand citizen; because otherwise there would be no utility in having those words in the clause, which would be contrary to the views expressed by the High Court in Project Blue Sky that an attempt must be made to give meaning to all the words of a statutory provision.
The position of the alternative proposition put by the applicants, that the compelling or compassionate circumstances can be those of the applicant’s but must be shown to have a connection or affect upon the interests of Australia or the interests of an Australian citizen or permanent resident, is more problematic. In his written submissions on behalf of the respondent, Mr Knowles states at [9]:
“The language of PIC4020 suggests that the exercise of the discretion depends upon a connection between the “compelling” or “compelling and passionate” circumstances on one hand and the interests of Australia or an Australian citizen/Australian permanent resident/eligible New Zealand citizen on the other hand. This is clear from the use of the transitive verb “affect” which should be understood as a synonym for “influence”, “impact upon” or “have an effect on”.”
His definition of the verb ‘affect’ is supported by reference to the 5th edition of the Macquarie Dictionary, and that is confirmed in the New Fowler’s Modern English Usage, R.W. Burchfield, Oxford ed, 1996. Mr Knowles goes on to argue that the construction favoured by the applicants artificially separates the conditions in PIC 4020(4) into separate elements: of which one requires “the identification of compelling (or compelling and compassionate) circumstances” (in this regard I note that PIC 4020(4)(b) does not require both, it requires either) and secondly it requires those circumstances “somehow affect the interests of Australia (or the interests of an Australian citizen/Australian permanent resident/eligible New Zealand citizen)”. He suggests that the better view is that PIC 4020(4) must be read as a whole and that requires:
“[t]hat the interests of either Australia or an Australian citizen/ Australian permanent resident/eligible New Zealand citizen be affected by compelling (or compelling and compassionate) circumstances. That is, the affect [sic] of the circumstances on the interests of either Australia or an Australian citizen/Australian permanent resident/eligible New Zealand citizen must be related to the compelling or compassionate nature of the circumstances.”
The court was not taken to by the applicant, nor has it found it easy to conceive of, a situation that would not be connected to both the applicant and the affected entity. Let us assume that the compelling circumstance is the acute shortage and desperate need of Australia for persons with an applicant’s particular qualifications. That circumstance has a connection with the applicant. It seems to the court that the construction favoured by the applicants is a reasonable one. But even if the respondent’s way of reading the clause is accepted, it is a distinction without a difference. Neither of the suggested readings rule out looking to the applicants as the objects of the compelling or compassionate circumstances.
In these circumstances the question is whether, on a proper reading of the Tribunal’s decision, it did attempt to rule out the applicants’ circumstances. I cannot see that it did. At [68] and [69] the Tribunal considered in some detail the claim made on behalf of the applicant’s husband (himself an applicant as a member of her family) that his removal from Australia, and thus the loss of his many qualities as an employee, constituted compelling or compassionate circumstances that affected the interests of Australian citizens or permanent residents. It found that it did not. At [70] the Tribunal considered another circumstance, being the breakdown of the applicant’s family in Australia should the applicants be removed and came to a similar conclusion. At [71] it considered the claim that the applicant did not have any involvement in altering the IELTS test results. But the court’s reading of the conclusion which it reached that:
“The Tribunal does not accept that this factor is relevant in considering the waiver provision given that the wording of the provision relates to the effect that the visa not being granted will have on Australia and Australian citizens, permanent residents and eligible New Zealand citizens. Nor does the Tribunal accept that the fact that the applicant has since obtained ‘competent English’ in an IELTS test undertaken after the lodgement of the application to the Tribunal establishes that there are compelling or compassionate circumstances that affect the interests of an Australian citizen, Australian permanent resident or an eligible New Zealand citizen which justify the grant of the visa.”
merely echoes the law as contained in the Regulations. One can infer from a reading of [71] that the Tribunal considered that this claim was personal to the applicant, it had only affected her. She is not an Australian citizen or permanent resident and, therefore, the waiver cannot apply to her. The court is of the view that there was no error in the Tribunal’s consideration of this factor. The Tribunal did not exclude the claim on the basis that the compelling or compassionate reason had to emanate from the Australian citizen, Australian permanent resident or eligible New Zealand citizen; it rejected it because there was no affect of the claim upon such a person.
In these circumstances, I am unable to provide the applicants with the review they seek. The application is dismissed and the applicants must pay the respondent’s costs assessed in the sum of $6,646.00.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Raphael
Associate:
Date: 2 September 2013
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