FEDERAL COURT OF AUSTRALIA
Sandhu v Minister for Immigration and Border Protection [2016] FCA 285
ORDERS
DATE OF ORDER: |
THE COURT ORDERS THAT:
2. The appellants pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
BESANKO J:
1 This is an appeal from an order made by the Federal Circuit Court of Australia on 17 June 2015. On that day the Federal Circuit Court made an order dismissing the applicants’ application for judicial review filed on 22 July 2014 (Sandhu & Ors v Minister for Immigration and Anor [2015] FCCA 1309). The applicants had applied for constitutional writs in relation to a decision of the Migration Review Tribunal made on 30 June 2014. The applicants now appeal to this Court. The first appellant was the primary visa applicant, and the second and third appellants were family unit members. The second appellant is the first appellant’s husband, and the third appellant is her son. In these reasons, it is sufficient for me to refer to the first appellant and I will call her the appellant.
2 On 14 March 2012, the appellant applied for a Student (Temporary) (Class TU) visa (“Student visa”). On 21 March 2012, the appellant was advised of the decision made with respect to a previous visa application made by her. She was advised that her application for a Skilled – (VC 485) Graduate visa (“Skilled Graduate visa”) was refused under public interest criterion (PIC) 4020. It was alleged that the appellant had provided false and misleading information to the Department in relation to her application for a Skilled Graduate visa. In particular, it was alleged that the appellant had provided a reference indicating a successful skills assessment. That reference was TRA 10/481678437. It was alleged that Trades Recognition Australia (TRA) had no record of providing the appellant with that skills assessment, or indeed, any skills assessment. By letter dated 21 May 2012, those allegations were raised with the appellant for her comment in relation to her application for a Student visa. The appellant advised the Department that she had been the victim of a “Migration Fraud” by a registered migration agent conducting a business under the name “S & S Migration”.
3 On 25 June 2012, a delegate of the Minister advised the appellant that her application for a Student visa had been refused under PIC 4020.
4 It is convenient at this point to set out the terms of Regulation 572.224 and PIC 4020.
Regulation 572.224 states:
The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4012A, 4013, 4014 and 4020; and
(b) if the applicant seeks to stay in Australia for 12 months or more, satisfies public interest criterion 4010; and
(ba) if the applicant had turned 18 at the time of application, satisfies public interest criterion 4019; and
(c) if the applicant is applying outside Australia and the applicant has previously been in Australia, satisfies special return criteria 5001, 5002 and 5010.
Public interest criteria 4020 states that:
(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 a 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.
5 The Minister’s delegate said that there was insufficient evidence provided to demonstrate that there were compelling or compassionate circumstances to justify the waiver of the three year period identified in PIC 4020(2).
6 The appellant made an application for review of the decision to refuse her a Student visa to the Migration Review Tribunal. The Tribunal conducted a hearing. The Tribunal found that by reason of the decision made on 21 March 2012, the appellant did not satisfy the requirements of PIC 4020(2). The Tribunal then turned to consider whether there were circumstances which justified a waiver of the requirements of PIC 4020(2). The Tribunal said (at [24]):
Even if the Tribunal uncritically accepted all of the representative’s claims in this regard, the Tribunal does not consider that such matters amount to compelling circumstances that affect the interests of Australia. Rather, in the Tribunal’s view, such matters involve consideration of whether there are compelling circumstances that affect the interests of the applicants, which is not the test the Tribunal must apply under PIC 4020(4)(a). The Tribunal further notes that the representative made no suggestion there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen as defined in r 1.03, for the purposes of PIC 4020(4)(b).
The Tribunal affirmed the decision not to grant the appellant a Student visa.
7 On the appellant’s application for judicial review, the Federal Circuit Court judge said that the Court only had jurisdiction to determine whether the Tribunal’s decision was affected by jurisdictional error. He said that the Federal Circuit Court was not the correct forum to seek merits review of the decision of the delegate of the Minister dated 21 March 2012 which was a “primary decision” within s 476(2)(a) and (4) of the Migration Act 1958 (Cth). The Federal Circuit Court judge said that the Tribunal was correct to conclude that the appellant did not satisfy the requirement of PIC 4020(2). He said that the issue before him involved the power to waive the relevant requirement under PIC 4020(4). That raised an issue as to whether there were compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, and those circumstances justified the granting of the visa.
8 The matters that the appellant raised in support of her case that there should be a waiver were as follows. First, she submitted that she was not a party to the submission of a false TRA reference as that was done by the migration agent. Secondly, she submitted that the fraud of S & S Migration involved a migration agent working fraudulently with an alleged corrupt Commonwealth official. The appellant provided to the Tribunal newspaper articles about a migration agent making fraudulent visa applications with the assistance of his wife who was an employee of the Department.
9 The Federal Circuit Court judge dealt with these matters as follows (at [44]):
I accept the Minister's supplementary submissions. First, as already noted above, Ms Sandhu's reliance upon SZFDE [SZFDE & Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189] is misplaced. This is not a case where the review function of the Tribunal could be said to have been disabled by agent fraud. The Tribunal was well aware of the allegations made against Ms Sandhu’s former migration agent. Secondly, while the Tribunal would have had had [sic]to consider the implications of Ms Sandhu having been made an innocent victim of fraudulent activity within the Minister’s Department, if such an allegation had been made, I am not persuaded that the Tribunal was put on notice of such an allegation. As the Minister points out in his supplementary submissions, the thrust of the submissions made on behalf of Ms Sandhu was that she had been duped by her former migration agent. The submissions made relating to the Minister’s Department were general and did not identify any alleged fraudulent activity by an official. The revelations made in The Age newspaper article, to which I have referred, post dated the Tribunal decision. That is a matter which the Minister could consider, if he were requested to do so and if he were so minded, but it is not something that the Tribunal, on the basis of the information put to it, was bound to consider.
10 In a submission which she made to the Department, the appellant said that the agent at S & S Migration advised her to seek a Work visa instead of an extension of a Student visa. She said that the agent explained to her the benefits of a Work visa and that she accepted the advice. She gave her consent to an application being made for a Work visa and she paid her migration agent a “hefty professional fee”. She said that she was “totally unaware of the hidden bad intentions to misuse the provisions of law and to make me an innocent victim”.
11 The Tribunal noted that the appellant had been refused a visa because she had provided false and misleading information to the Department. The Tribunal said that it followed from the delegate’s decision on the Skilled Graduate visa that the appellant did not satisfy PIC 4020(2). The question then became whether there were compelling circumstances that affect the interests of Australia which justified a waiver of the requirement in PIC 4020(2). The Tribunal did not err in concluding that the circumstances did not reach the level of compelling circumstances that affect the interests of Australia.
12 The appellant represented herself on the hearing of the appeal. It appears that she had advice from lawyers acting for her in mid-2015. Furthermore, in August 2015, a Pro Bono lawyer was appointed by the Court to provide the appellant with legal assistance. The appeal was listed for hearing before a bench of three judges on 24 November 2015. The hearing did not proceed on that day, primarily it seems, because the appellant’s husband was required to undergo surgery. In early January 2016, the Pro Bono lawyer who had been appointed ceased to provide legal assistance to the appellant with the latter’s agreement.
13 The appellant’s submissions on the appeal largely consisted of a written opinion of a junior barrister provided in July 2015 wherein he suggested that the appellant’s notice of appeal include grounds which raise an argument that the Tribunal committed a jurisdictional error in failing to conclude that PIC 4020(2) was not engaged because the clause assumed, or because it was implicit in the clause, that there was a valid application for the Skilled visa and in this case there was no valid application because of the migration agent’s fraud.
14 There are a number of difficulties in considering this argument. The first is that the notice of appeal does not include grounds which raise this issue clearly. Secondly, the issue was not clearly raised before the Federal Circuit Court. In any event, there is the substantial difficulty that the jurisdiction of the Federal Circuit Court does not extend to a primary decision (Migration Act 1958 (Cth) s 476(2)(a)), and the decision of the delegate on the Skilled visa application was a primary decision (Prodduturi v Minister for Immigration and Border Protection and Another [2015] FCAFC 5; (2015) 144 ALD 243). Thirdly, so far as I can see, the issue was not raised before the Tribunal (Tribunal’s reasons at paragraphs 19 and 20). Fourthly, there seems to me to be significant difficulties with the argument, at least on the face of it, because the words of PIC 4020(2) suggest that it is the fact of the refusal on a certain basis which is critical rather than its legality. I would need to be clearly persuaded that one delegate could inquire into the legality of the decision of another delegate. Finally, the argument was not developed in any way. I heard the appeal on 1 March 2016. At the end of the hearing, the appellant’s husband asked if the hearing could be adjourned so that the junior barrister could appear. I indicated that I would reserve my decision to 15 March 2016 and that the barrister could appear on that occasion and seek leave to make further submissions if so advised. On 15 March 2016, the appellant again appeared in person and no further submissions were made.
15 In the circumstances, I do not propose to consider the argument any further.
16 In my opinion, the Federal Circuit Court judge did not err in concluding that the Tribunal’s decision was not affected by jurisdictional error for the reasons he gave (see [9] above).
17 In the circumstances, the appeal must be dismissed and the appellants must pay the first respondent’s costs of the appeal.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. |
Associate:
