FEDERAL COURT OF AUSTRALIA

Faruque v Minister for Immigration and Border Protection [2015] FCA 1198

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The first and second applicants pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Migration Act 1958 (Cth) confers power on the Minister to grant a non-citizen of Australia permission, known as a visa, to travel to and enter and/or remain in Australia. The Act and the Migration Regulations 1994 (Cth) prescribe criteria for the grant of visas. The Minister may only grant a non-citizen a visa if the Minister is satisfied that the prescribed criteria for that class (or subclass) of visa are satisfied.

2    Roksana Faruque and her husband, Shahrier Shaown, together with their son, Rafael Azad Shahan, are Bangladeshi nationals, although Rafael was born in Australia. On 27 February 2013 Ms Faruque applied for a Student (Temporary) (Class TU) visa, naming her husband and son as members of her family unit included in the application. The success of the application depended on whether the Minister was satisfied that the prescribed criteria for the grant of this visa were satisfied. The prescribed criteria for Class TU visas include various public interest criteria, the terms of which are laid down in Sch 4 of the Regulations.

3    On 19 December 2013 a delegate of the Minister refused to grant the application on the ground that Ms Faruque, as the primary visa applicant, did not satisfy the requirements of cl 572.224 of Sch 2 to the Regulations, which included public interest criterion 4020 (PIC 4020). The reason the delegate came to this conclusion was that he was not satisfied that Ms Faruque met PIC 4020 because she had provided with her visa application a bank statement in her husband’s name which the delegate considered was false or misleading in a material particular.

4    The applicants challenged the decision in the Migration Review Tribunal (the powers and duties of which are now exercised by the Migration and Refugee Division of the Administrative Appeals Tribunal). But the Tribunal was of the same opinion and affirmed the delegate’s decision.

5    The applicants then applied for judicial review in the Federal Circuit Court. That application was fixed for a show cause hearing. If at such a hearing the court is not satisfied that the application has raised an arguable case for the relief claimed, r 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) (FCCR) allows the court to dismiss the application. In the present case the court dismissed the application for this reason. The applicants contend that it was wrong to do so.

6    At the relevant time, public interest criterion 4020 stated:

(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)    ...

…

(3)    To avoid doubt, [subclause (1) applies] 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) … 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.

    …

(Original emphasis.)

7    At the relevant time “bogus document” had the same meaning as in s 97 of the Act: see reg 1.03. I interpolate that the same definition now appears in s 5(1) of the Act. Section 97 of the Act defined the term “in relation to a person” to mean:

a document that the Minister reasonably suspects is a document that:

(a)    purports to have been, but was not, issued in respect of the person; or

(b)    is counterfeit or has been altered by a person who does not have authority to do so; or

(c)    was obtained because of a false or misleading statement, whether or not made knowingly.

8    The Tribunal noted that the bank which had apparently issued the statement advised “the appropriate overseas post” to which it had been referred for verification “that the balances and transactions shown on the … statement did not match the bank’s records”. The Tribunal also noted evidence from Ms Faruque to the effect that the bank statement had been provided to the Department on the advice of their lawyer, that they had never used the account, and were shocked to learn from the Department that the balances and transactions shown on it did not match the bank’s records. According to the Tribunal’s decision record, which is the only material before the Court referring to the evidence led at the Tribunal hearing, Ms Faruque “observed that there was widespread corruption in Bangladesh and acknowledged that the information in the statement may have been incorrect, albeit without her knowledge”. In concluding that the information was false or misleading in a material particular because of information given by Ms Faruque, the Tribunal said that it was unnecessary to conclude that she was aware that the information was purposely untrue.

9    Having found that the information was false or misleading in a material particular, the Tribunal then considered whether the requirements of PIC 4020(1) should be waived.

10    On that question the Tribunal referred to evidence from the husband, Mr Shaown, that he was a qualified chef and worked for two restaurants (described in the Tribunal’s decision record as “Australian businesses”) which Mr Shaown said would be adversely affected if his services were no longer available. The Tribunal also noted evidence to the effect that a close family friend, said to be an Australian citizen, owned a catering business and had indicated he would like to employ Mr Shaown. Furthermore, the applicants said that their son had been born here and had a better future here. The Tribunal said it had considered the evidence but was not satisfied that there were compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, which would justify the grant of the visas. Consequently, the Tribunal declined to waive the requirements of PIC 4020.

11    The applicants were unrepresented in the Federal Circuit Court as, indeed, they are in this Court. Under the heading “grounds of application” in their application for relief in the court below, they pleaded (without alteration):

1.    Affidavit Attached

2.    Migration Review Tribunal failed to consider my Circumstance into Account in its decision (Affidavit Attached)

3.    Migration Review Tribunal failed to consider the relevant fact of my circumstance which was critical in reaching the decision (Affidavit Attached)

12    The affidavit referred to in the application was “sworn/affirmed” by Ms Faruque. It recited matters of fact relating to the merits of the Tribunal’s decision. Ms Faruque noted that the Tribunal refused her application on the basis that her husband’s financial statement was false and misleading and protested that she was unaware of this, contending that “as his wife and from a cultural point of view, it was not [her] function to question [her] husband’s intention”. Ms Faruque explained that they wanted to settle in Australia to give their son a better life and to improve their own future. She then detailed her qualifications in hospitality, her husband’s qualifications as a chef, his employment and income, and the disadvantage to others if he were to lose his job. At [14] she stated:

We are a family who will be an asset to the Australian community and meet the Public interest criterion to be waived on compelling grounds.

13    Ms Faruque apologised to the court for the problem with the bank statement and urged the primary judge to find in her favour. She emphasised that she had “an innocent son” who was under five years of age and in these circumstances she should get “some sorts of privilege” on humanitarian grounds. She submitted positive character references from three individuals.

14    The primary judge held that the claim by the applicants that they were unaware that the bank statement was false or misleading in a material particular could not be sustained based on the reasons of the members of the Full Court in Trivedi v Minister for Immigration and Citizenship (2014) 220 FCR 169 (“Trivedi”).

15    As for the allegation that the Tribunal failed to consider Ms Faruque’s circumstances, the primary judge considered that this was no more than an invitation to engage in “impermissible merits review”. His Honour said, in effect, that on a fair reading of the Tribunal’s decision, the Tribunal did consider the applicants’ circumstances, applied the test in PIC 4020(4), but was not satisfied that compelling or compassionate circumstances existed to justify waiving the requirements in PIC 4020(1). His Honour said (at [34]) that the Tribunal’s findings were open to it on the material before it and for the reasons that it gave.

16    The decision of the Federal Circuit Court was an interlocutory decision: FCCR r 44.12(2). This means that the applicants may only appeal with leave: Federal Court of Australia Act 1976 (Cth) s 24(1A). The power to grant leave is subject to no express conditions. Generally speaking, however, leave will not be granted unless, in all the circumstances, the decision below is attended by sufficient doubt to warrant its reconsideration on appeal and, on the assumption that the decision is wrong, substantial injustice would result if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

17    In their application for leave to appeal the applicants pleaded two grounds which read (without alteration):

1.    The Judge erred in not considering the compelling and compassionate circumstances in relation to the documents and the cultural aspects of the applicant

2.    Based on the error the appellants have suffered a denial of procedural fairness and natural justice

18    It is true that, in considering whether there had been any reviewable error by the Tribunal with respect to the waiver issue, the primary judge did not expressly refer to what Ms Faruque said in her affidavit about her ignorance of the false or misleading aspects of the bank statement or “the cultural aspects” which, she had claimed, precluded her from questioning her husband’s intention. No doubt, that was because there was nothing in the affidavit or the submissions to suggest that these matters were raised in relation to the question of waiver or that they had a bearing on this question.

19    The Federal Circuit Court’s powers to review the Tribunal’s decision were limited. The Tribunal’s decision is referred to in the Migration Act as “a privative clause decision”; it cannot be challenged, appealed against, reviewed, quashed or called into question in any court, and is not subject to prerogative relief, unless it is affected by jurisdictional error: see s 474; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. This is the context in which the primary judge referred to “impermissible merits review”. What might constitute “compassionate or compelling circumstances that affect the interests of an Australian citizen…” is entirely at large. In other words, the circumstances are not defined. The Minister (and the Tribunal exercising the powers of the Minister — see Migration Act, s 349(1)) is not bound as a matter of law to accept that the circumstances upon which an applicant relies are “compassionate or compelling circumstances”. In any case, to justify the waiver of the requirements in PIC 4020(1), the Tribunal had to be satisfied that the circumstances affected Australia’s interests or the interests of the persons referred in PIC 4020(4)(b). The matters to which Ms Faruque referred have no apparent connection with those interests and Ms Faruque made no submission and pointed to no evidence that would have enabled the Tribunal to find that the interests of those persons were affected by her circumstances.

20    The Tribunal’s reasons were brief. On this question the Tribunal could have expressed itself more clearly. But courts undertaking judicial review are not to be concerned with looseness of language or “unhappy phrasing”: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at 271-272. In this case it is plain that the Tribunal was not satisfied that the evidence established the existence of compelling circumstances affecting Australia’s interests or compassionate or compelling circumstances affecting the interests of an Australian citizen or permanent resident or eligible New Zealand citizen that would justify waiving the grant of the visa. It was not for the primary judge to be satisfied of these matters as the first ground of the draft notice of appeal suggests. Unless they could show that the Tribunal’s decision was affected by jurisdictional error, they were bound to fail. The only jurisdictional error of which the applicants complain is that they were denied procedural fairness. But that complaint is baseless. At the hearing both Ms Faruque and her husband told the Court that they were not complaining that they were not given an opportunity to be heard. Indeed, they accepted that they were able to put to the Tribunal everything they wanted to say on this subject. Furthermore, at no stage did they make any allegation of actual or apprehended bias on the part of the Tribunal. In these circumstances there is nothing to indicate a denial of procedural fairness.

21    At its highest, the applicants’ contention is that the Tribunal came to the wrong conclusion about whether their circumstances were compelling and compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen. This is a complaint about the merits of the Tribunal’s decision and beyond the scope of judicial review for jurisdictional error. As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:

The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

22    Ms Faruque maintained that she was unaware of any error in the bank statement. But the Tribunal accepted as much. As the primary judge recognised, however, a document may be “bogus” or contain false or misleading information even if the visa applicant is ignorant of these matters. In Trivedi Buchanan J, with whom Allsop CJ and Rangiah J agreed, said at [43]:

[I]t is not necessary … to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system.

23    The Tribunal’s failure to accept that the applicants’ circumstances fell within the terms of PIC 4020(4) does not amount to a jurisdictional error. In my opinion, the primary judge was correct to conclude in this respect that the applicants had no arguable case and that he had no power to decide for himself whether they did.

24    In Trivedi at [43] Buchanan J held that it was necessary that “the information or document have the necessary quality of purposeful falsity”. Earlier at [33] his Honour said that:

to charge that a statement is false is not to say only that it is wrong. The accusation potentially imports some element of knowledge or intention on somebody’s part…

25    The primary judge noted as much (albeit in a reference to [54] of that judgment) and then at [29] accepted the Minister’s submission that the Tribunal’s reasons demonstrate that it considered that the relevant document had that quality and applied the correct test.

26    The Tribunal referred to the advice from the overseas post that the information in the statement “did not match the bank’s records” and the concession by Ms Faruque that the information in the statement may have been incorrect, though without her knowledge. It made no express finding that the bank statement was knowingly or intentionally false or misleading in a material particular. That said, as the primary judge recognised, reasons of an administrative decision maker are “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”: Wu Shan Liang at 272. The Tribunal recognised that when PIC 4020 refers to false information it was referring to information, as it put it at [8] of its reasons, “in the sense of purposely untrue”. It is important to recall that the Tribunal did not have to be satisfied that the bank statement was purposely false or contained purposely false or misleading information. It had to be satisfied that there was no evidence to the contrary. For these reason I do not think there is sufficient doubt about the primary judge’s conclusion that the Tribunal applied the correct test as set out in Trivedi. The Tribunal’s decision should be read in the context of the evidence and other material before it and the terms of PIC 4020.

27    The Tribunal was required to be satisfied that there was no evidence that in support of their visa application the applicants provided a bogus document or information that was purposely untrue or misleading in a material respect. Here, there was evidence to suggest that the information in question was purposely untrue or misleading in a material respect.

28    First, the current balance at the time of the bank statement was overstated by an amount of more than BDT 1.3 million (approximately AUD 16,000).

29    Second, the overseas post considered that the statement was “non-genuine”.

30    Third, on 17 July 2013 the Department wrote to Ms Faruque informing her that it suspected the information was fraudulent and invited her to comment on it within 28 days of receipt of its letter. According to the decision record of the delegate, no response to that letter either by Ms Faruque or her migration agent was ever received and no extension of time to do so was ever sought.

31    Fourth, for all these reasons the delegate found that the document was a bogus one. The applicants received the delegate’s decision and the reasons for it by letter dated 19 December 2013. The applicants had more than a reasonable opportunity to provide evidence to the Tribunal to allay the Department’s suspicions. Yet, not only was none provided, the applicants did not even protest that there must have been an innocent mistake. The Tribunal hearing took place on 27 August 2014 — more than one year after they were first made aware of the problem with the documentation and more than eight months after they learned of the delegate’s decision.

32    In all these circumstances it was open to the Tribunal to conclude that PIC 4020(1) was not satisfied. The Tribunal was entitled to act on the basis of the information provided by the Department’s overseas post especially where, as here, there was no evidence to suggest it was wrong.

33    In any event, this question is not raised by the leave application or the draft notice of appeal. Nor is it raised in the affidavit filed in support of the leave application. Furthermore, there is nothing in the material that was before the primary judge to indicate that the applicants ever submitted that the information was not “purposely” false or misleading in a material particular. Indeed, as I noted at above at [12], in the affidavit she filed in the court below, Ms Faruque noted that the Tribunal had refused her application on the basis that her husband’s financial statement was false and merely protested that she was “unaware of this false financial circumstance as his wife and from a cultural point of view, it was not [her] function to question [her] husband’s intention”. As the Minister submitted, implicit in this statement is an acceptance of the fact that the information was intentionally (or purposely) false. Only in oral submissions to this Court did Ms Faruque intimate that the document might have been the result of some clerical or other innocent error on the part of a bank. Yet she has never produced any evidence to support such a proposition. Ms Faruque told the Court that she had been in contact with the bank since the Tribunal hearing and it had acknowledged that it had made an error and had apologised to her. No information to this effect, however, was before the Tribunal.

34    I accept that substantial injustice would result if leave were refused, supposing the decision below was wrong. But for the above reasons, I am not persuaded that the primary judge’s decision is attended by sufficient doubt to warrant its reconsideration on appeal. If the applicants are able to produce to the Minister credible evidence to support the claim made to this Court that the bank’s advice to the overseas post was wrong, he may be prepared to exercise his discretion to grant them visas, but there is nothing that this Court can do to rectify their position.

35    The application for leave to appeal should be dismissed. Costs should follow the event. There will be orders accordingly.

Associate:

Dated:    9 November 2015