YONJAN v Minister for Immigration

[2017] FCCA 208

FEDERAL CIRCUIT COURT OF AUSTRALIA

YONJAN v MINISTER FOR IMMIGRATION [2017] FCCA 208

Catchwords:
MIGRATION – Student (Subclass 572) visa application – review of decision of delegate – waiver of criterion in Public Interest Criterion 4020(1) of sch.4 of the Migration Regulations 1994 – whether the delegate failed to consider the material – whether the delegate constructively failed to consider the compelling and compassionate circumstances – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.66, 338(2), 476

Migration Regulations 1994, cl.572.224(a), cl.572.411 of sch. 2, Public Interest Criterion 4020(1), (2), (4) of sch.4
Constitution, s.75(v)

Cases cited:

Plaintiff M64/2015 v Minister for Immigration & Border Protection (2015) 90 ALJR 197; [2015] HCA 50
Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169; [2014] FCAFC 42

Applicant: DEPTA YONJAN

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

File Number: SYG 1809 of 2016

Judgment of: Judge Smith

Hearing date: 31 January 2017

Date of Last Submission: 31 January 2017

Delivered at: Sydney

Delivered on: 17 February 2017

REPRESENTATION

Counsel for the Applicant: Mr J.R. Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Mills Oakley Lawyers

ORDERS

1. The application be dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1809 of 2016

DEPTA YONJAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is a citizen of Nepal. On 23 April 2012, he applied for a Temporary Business Entrant (Subclass 456) visa. That application was refused on 2 May 2012. On 5 November 2014, the applicant applied for a Student (Subclass 572) visa.

2. It was a criterion for the grant of the student visa that there be no evidence that the applicant had given information that was “false or misleading in a material particular”: cl.572.224(a) of sch.2 to the Migration Regulations 1994, PIC[1] 4020(1).

   [1] Public Interest Criterion, found in sch.4 of the Regulations.

3. In the application for that visa, the applicant stated that he had never applied for any type of Australian visa. On 18 May 2015, a delegate of the Minister decided to refuse to grant the applicant a visa because that statement was false, and so the requirement in PIC 4020(1) was not met.

4. On 28 December 2015, the applicant made a second application for a Student (Subclass 572) visa. That application was made while the applicant was not in Australia. As will become apparent, that fact bears some importance in these proceedings.

5. Another criteria for the grant of the student visa was that the Minister be satisfied that the applicant had not been refused a visa within the previous three years because of a failure to satisfy the criterion in PIC 4020(1): PIC 4020(2). However, under PIC 4020(4), that criterion could be waived by the Minister if he or she were 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.

6. In his visa application, the applicant sought to have the criterion in PIC 4020(2) waived pursuant to PIC 4020(4). The applicant submitted evidence to the effect that his previous migration agent had mistakenly answered “No” to the question asking whether the applicant had previously applied for any type of Australian visa. When asked by the delegate in a telephone interview, the applicant gave the correct answer and stated that the answer should have been “Yes”. The applicant’s new migration agent submitted that the wrong answer was unintentional and so, by reason of the decision in Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169; [2014] FCAFC 42, the answer was not “false or misleading” within the meaning of PIC 4020(1). It was submitted that it would be extremely unfair in these circumstances for the applicant to be unable to obtain a student visa for three years.

7. On 16 June 2016, a delegate of the Minister made a decision to refuse to grant the applicant the student visa. The delegate notified the applicant of the decision by letter of the same date which enclosed a document entitled “Decision Record”. In that document the delegate set out the criteria in PIC 4020 under the heading “Reasons” and then wrote:

   …

   On 18/05/2015, you were refused a subclass 572 visa as you did not meet clause 572.323(a) [sic – 572.224]. Specifically, you did not meet public interest criteria (PIC) 4020(1). As per PIC 4020(1) [sic – 4020(2)], for three years from 18/05/2015 (till 18/05/2018), any subclass of visa you apply for, to which PIC 4020 applies, cannot be granted unless you meet the waiver criteria in PIC 4020(4).

   To meet the waiver criteria, you need to submit evidence of compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, which justify the granting of the visa.

   You have provided additional information in support of the waiver of the exclusion period on 08/06/2016. In the information provided you claim that the previous agent made a mistake in completing the application form and that you and your wife have provided correct information during the interview in your previous application. On the basis of the information submitted, I am not satisfied you meet the waiver criteria.

   Hence the exclusion period applies and your student visa application is refused. You do not meet regulation 572.323(a) [sic-572.224].

   …

8. The applicant seeks judicial review of the delegate’s decision in this Court pursuant to the jurisdiction under s.476 of the Migration Act 1958 (Cth).

Consideration

1. As noted above, the visa application was made when the applicant was outside Australia. As a consequence, the visa could only be granted while the applicant was outside Australia: cl.572.411. For that reason, the delegate’s decision was not a “Part 5-reviewable decision” under s.338(2); was not a primary decision as defined by s.476(4) of the Act; and so, was a “migration decision” for the purposes of s.476 of the Act. That provision gives this Court the same jurisdiction in respect of “migration decisions” as the High Court has under s.75(v) of the Constitution. In light of that, and the operation of s.474 of the Act, the applicant must establish that the delegate’s decision was affected by jurisdictional error.

2. The applicant contends that the decision was affected by jurisdictional error because the delegate constructively failed to consider whether there were compelling and compassionate circumstances that affect the interests of Australia. The applicant argued that there was an unstated assumption in the delegate’s reasons that, the interests of Australia cannot involve mitigating an obvious injustice done to a visa applicant in a previous decision. In the alternative, the applicant argued that the delegate failed to consider that material. These arguments were, in essence, based on the fact that the only reasoning disclosed in the Decision Record was in the following sentence:

   On the basis of the information submitted, I am not satisfied you meet the waiver criteria.

3. There is nothing in the Decision Record to support either of the applicant’s arguments.

4. Another consequence of the application being made offshore, was that the delegate had no obligation to give reasons for the decision: sub-ss.66(2)(c) and (3) of the Act. That must be taken into account in the approach taken to the reasons of the delegate. In Plaintiff M64/2015 v Minister for Immigration & Border Protection (2015) 90 ALJR 197; [2015] HCA 50, French CJ, Bell, Keane and Gordon JJ said at [25]:

   It is well settled that in the context of administrative decision-making, the court is not astute to discern error in a statement by an administrative officer which was not, and was not intended to be, a statement of reasons for a decision that is a broad administrative evaluation rather than a judicial decision. It is possible that error of law on the part of the Delegate might be demonstrated by inference from what the Delegate said by way of explanation of his decision; but it must be borne in mind that the Delegate was not duty-bound to give reasons for his decision, and so it is difficult to draw an inference that the decision has been attended by an error of law from what has not been said by the Delegate. Further, “jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power”; but here the plaintiff does not show that relevant material was ignored simply by pointing out that it was not mentioned by the Delegate, who was not obliged to give comprehensive reasons for his decision. Further, the Delegate's letter is “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”.

   (Citations omitted, emphasis in original)

   Gageler J said at [72]:

   … The letter was not a formal statement of the reasons for the decision: it was not a document devoted to setting out, exclusively and exhaustively, the findings of fact made by the delegate and the process of reasoning which the delegate adopted to reach the conclusion that there were no compelling reasons for giving special consideration to granting the visas. It was somewhat informally expressed.

5. The applicant’s argument relied almost entirely on the words “on the basis of the information submitted” in the delegate’s decision. However, that reliance is contrary to the proper approach to be taken to the delegate’s reasons. Simply put, the applicant seeks to draw from those words inferences that are not available. The applicant did not argue that the only conclusion open on the material, was that there were compelling circumstances that affect the interests of Australia and justified the grant of a visa. Such an argument would be difficult to make, given the breadth of the criterion and the consequent extent of judgment left to the decision-maker in determining whether he or she was satisfied of them. In light of that, even if the delegate accepted all of the material as truthful, it was open to the delegate on a proper understanding of the criterion to decide that the circumstances did not satisfy that criterion. There is no basis to infer that the delegate took an unduly narrow approach to the meaning of “interests of Australia” as suggested by the applicant.

6. Further, the reasons show that the delegate was aware of, and considered, both the relevant criterion and the material relied on by the applicant. First, she not only set out the criteria in full, but summarised them accurately. Secondly, she accurately summarised the effect of the applicant’s material. Thirdly, she stated that her decision was based on that material.

7. In those circumstances there is no apparent jurisdictional error in the delegate’s decision and none that can be inferred from the material before the Court.

8. The application must be dismissed with costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 17 February 2017