Federal Court of Australia

Kaur v Minister for Immigration and Border Protection [2022] FCA 196

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal filed on 19 September 2019 be refused.

2.    The applicants pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

KENNY J:

1    This is an application for leave to appeal from a judgment of Federal Circuit Court of Australia delivered on 10 September 2019, which, amongst other things, dismissed an application for reinstatement filed on 23 July 2018. This application (and other applications within the proceeding in the Federal Circuit Court) flowed out of an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal). By this decision, the Tribunal affirmed a decision of a delegate of the Minister to decline to grant visas to the applicants.

2    For the following reasons, I would refuse the application for leave to appeal.

Background

3    The applicants are citizens of India. The first applicant, Ms Kaur, applied for a student visa on 10 March 2017. Her spouse (the second applicant, Mr Singh) sought a visa on the basis of his relationship to the first applicant. Under the heading “Character declarations” the completed application form contained the following question:

Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?

The applicants answered “no”.

4    On 11 May 2017, the Department of Immigration and Border Protection (the Department) wrote to the applicants advising them that, contrary to the information given by them on the visa application form, the Department’s records “indicate that you … have committed serious offences and been found guilty of theft and fraud”. The letter continued:

It is a requirement for the grant of a Student (subclass 500) visa that the applicant satisfies Public Interest Criterion (PIC) 4020 contained in clause 4020 of Schedule 4 to the Migration Regulations 1994. Subclause 4020(1) requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Administrative Appeals 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:

•    the application for the visa; or

•    a visa that the applicant held in the period of 12 months before the application was made.

If there is such evidence, subclause 4020(4) provides that PIC 4020(1)(a) or (b) and subclause 4020(2) will nonetheless be satisfied if the Minister is satisfied that:

•    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;

justify the granting of the visa.

This latter statement described the effect of Schedule 4, cl. 4020(4)(a) and (b) of the Migration Regulations 1994 (Cth) (the Regulations).

5    On 1 June 2017, the applicants provided a written response to the relevant Departmental Case Officer. This response stated that:

We did not disclose this information while lodging the visa application as we misunderstood the criteria of the character declaration the visa application [sic].

The day all this happened, [the first applicant] was under the influence of alcohol and was not able to judge my actions and unknowingly got involved in the incident. …

During that time, I was also subjected to high level of stress and insomnia because of personal matters back in home country which minimized my capacity to think right and act accordingly. I am visiting the GP to correct my mental problems to avoid any further damage to my character.

Details of the incident:

I accidentally located a handbag at Crown Casino on 21 November 2016, it was a mistake which we made unintentionally, we did not think about the circumstance. It was sudden decision without realizing the after effects. The decision was made in haste and in the hit [sic] of moment as I was under the influence of alcohol. …

We believe the we were badly jinxed from couple of months and there can be no explanation for believing such but on the other had we cannot deny it does affect everyone at some stage of life [sic].

6    On 6 June 2017, Ms Kaur provided a medical certificate to the Department which stated that she was being treated for anxiety and depression.

7    It has not been disputed that on 23 February 2017 Ms Kaur was convicted by the Perth Magistrates Court of offences of “Stealing” and “Gains benefit by fraud”, and was fined in respect of both offences.

8    The provision of false information was not, however, the basis for the delegate’s subsequent refusal decision.

9    A delegate for the respondent Minister refused the applicants’ visa applications on 4 July 2017, for the simple reason that at the time she was not enrolled in any course of study, as required by Sch. 2, cl. 500.211 of the Regulations. The records before the delegate showed that Ms Kaur had been enrolled in an Advanced Diploma of Business course, but that her enrolment was cancelled by the relevant Education Provider on 2 June 2017 due to “Non-commencement of studies”. Since the second applicant was not a member of a family unit of a person granted a student visa as required by clause 500.311 of Schedule 2 of the Regulations, he was also unsuccessful.

10    The applicants applied to the Tribunal for merits review. Ms Kaur attended a hearing on 18 October 2017 and was assisted by a migration agent attending by telephone. Mr Singh did not attend.

11    Since the evidence before the Tribunal was that, by the time of the hearing, Ms Kaur had enrolled in a course of study commencing on 24 July 2017, the Tribunal was satisfied that Ms Kaur had by then met the requirements of cl 500.211 of Schedule 2 of the Regulations. Notwithstanding this, however, the Tribunal concluded that the delegate’s decision should be affirmed because the applicants had provided information that was false or misleading in a material particular and therefore did not meet the requirements in clause 4020(1) of Schedule 4 of the Regulations. The Tribunal further concluded that there were no “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” that justified granting the visa under clause 4020(4) of Schedule 4 of the Regulations.

12    In its reasons, the Tribunal stated:

[16]    The applicant confirmed to the Tribunal that the correspondence from the Department Case Officer of the 11 May 2017 had been read and was understood, including the requirements of PIC 4020.

[17]    The applicant advised the Tribunal that she did not know how the form should be completed with a "Yes" or "No", but subsequently contradicted that alleged misunderstanding with the responses having been given out of perceived "fear".

[18]    The applicant confirmed to the Tribunal that in the Declarations section of the Application [page 16] headed as - 'Warning: Giving false or misleading information is a serious offence.' that this warning had been read and understood.

[19]    The Tribunal read out the two questions in the declarations section of the Visa Application Form [page 14] that the applicant had provided a 'Yes' response to, as follows:

"Have provided complete and correct information in every detail in this form, and on any attachments to it."

"Understand that if any fraudulent documents or false or misleading information has been provided with this application, or if any of the applicants fail to satisfy the Minister of their identity, the application may be refused and the applicant(s), and any member of their family unit, may become unable to be granted a visa for a specified period of time."

[20]    The applicant confirmed that the declarations canvassed by the Tribunal with the applicant had been read and understood and that a 'Yes' answer had been inserted on the Application.

13    The Tribunal found that the visa application contained information that was false or misleading in a material particular. It said:

[38]    The responses to critical questions on pages 14 (Criminal conviction) and 16 (Declarations) of the applicant's application of 10 March 2017 is 'information that is false or misleading in a material particular' as defined in cl.4020 (5). The Tribunal is satisfied, on the basis of the confirmation provided by the applicant in evidence that the applicant knew she was providing incorrect information about her crimination convictions when completing the application, which was false or misleading information at the time they were given. In this regard, the applicant knowingly did not declare information pertaining to a criminal conviction in the Perth Magistrates Court on 23 February 2017, which was more than two weeks before completing the visa application. The false or misleading information is relevant to the visa application as criminal convictions and/or charges are relevant to a consideration of whether the applicant satisfies the character test referred to in PIC4001 (which the applicant must satisfy: cl.500.217(1)). It is also, relevant in relation to the visa application or a visa held in the 12 months before the visa application was made.

14    The Tribunal found (at [44]-[54]) that there was “no meaningful evidence” to show that there were circumstances of the kind mentioned in clause 4020(4) that might otherwise justify the grant of a visa.

15    The applicants filed a judicial review application in the Federal Circuit Court, but that application was dismissed on 17 July 2018 on the basis of the applicants’ non-appearance at the scheduled hearing. Six days later, the applicants applied for reinstatement on the basis that Ms Kaur forgot to attend the hearing. This application was dismissed on 22 August 2018 when the applicants again did not appear at the scheduled hearing.

16    The applicants successfully challenged the dismissal of their proceedings in this Court. Amongst other things, the Court ordered on 7 May 2019 that:

The application for reinstatement is remitted to the Federal Circuit Court, and if granted, the appellants’ application for judicial review of the Tribunal’s decision is to be determined by the Federal Circuit Court.

The result was that their application for reinstatement came before Federal Circuit Court again.

17    On 10 September 2019, the Federal Circuit Court dismissed the applicants’ application for reinstatement because the primary judge considered that the originating application for judicial review was “without merit”: see Kaur & Anor v Minister for Immigration & Anor [2019] FCCA 2629 (Kaur) at [23]. The Court further ordered that the originating application for review be dismissed.

18    In Kaur the primary judge held (at [24]-[25]) that:

[T]he Tribunal carefully considered all of the matters before it. It found that there were no compelling reasons for waiver of the relevant clause 4020 conditions.

In all of the circumstances, therefore, the applicant’s [sic] application for reinstatement ought properly to be refused. The result of such order is that the originating application is also dismissed as being without merit.

19    Regarding the provision of false information, the primary judge noted that the National Police Certificate before the Tribunal recorded that Ms Kaur’s convictions and fines on 23 February 2017; and observed that since her (and her husband’s) visa application were made some weeks later on 10 March 2017 the convictions ought to have been disclosed on the visa application form. The primary judge stated (at [5]):

That was not done and, therefore, the first applicant and the second applicant had clearly provided misleading information in a material particular to the Department in relation to the application for the visa.

20    The primary judge found (at [17]-[18]) that “the Tribunal undertook a detailed analysis as to why there were no compelling reasons to waive the relevant 4020 requirements” and “arrived at its [decision] in a careful and considered manner”. The primary judge held (at [19]) that it was open to the Tribunal to reach the conclusion that the criteria in clause 4020(4) had not been met on the basis of the evidence before it. The primary judge held (at [20]-[22]) that the Tribunal had not failed to make an obvious enquiry about a critical fact and its decision was not legally unreasonable or lacking an evident and intelligible justification. Accordingly, the primary judge refused the application for reinstatement filed on 23 July 2018. The applicants now apply for leave to appeal.

application for leave to appeal

21    The applicants filed their application for leave to appeal in September 2019. Under the heading grounds of application, it was said:

1.     I provided the information in the student visa application in error as: -

       (a)     I was unable to understand the seriousness of the question and the consequences.

         (b)    I was in a state of fear due to instability of mind and confusion.

2.    The explanation for not providing the information at the time of visa application was further explained to the DIBP with a detailed letter which completely ignored by the Administrative Appeal Tribunal.

3.    The decision are causing extreme humiliation among the families and friends and causing a rift in relationship with husband.

4.     The mistake I made was not that big but my sufferings are bigger.

5.    Administrative Appeal Tribunal set aside my justification toward Natural Justice and the made the decision of refusal of visa.

6.    Proper and realistic approach was not used in making the decision of refusal.

7.     Accordingly the decision of refusal.

8.     The details were not completed in error.

(Errors in original)

22    Ms Kaur’s supporting affidavit (which has been filed) and a draft notice of appeal (which has been received by the Court but not filed) accompanied the application. In her affidavit, Ms Kaur referred to her visa application of 10 March 2017; the Department’s request for information in May 2017 and her response. Ms Kaur did not dispute that at the time the delegate’s decision was made her course enrolment had been cancelled, but she concluded with this statement:

I am not satisfied with the decision by AAT is unreasonable as the official disregarded the response provided on 10 November 2017.

23    Under a heading ‘Grounds of Appeal’ in the draft notice of appeal provided to the Court were the following statements:

The Applicant is aggrieved by the Student Visa (Subclass 500) Refusal decision because:

1.    First respondent, Minister of DIBP refused the visa application for student visa (Subclass 500) (reference 500.211) as the education provider cancelled the enrolment on non-commencement basis even after providing the medical certificate. I was not provided with any intimated by the College before finalising the cancellation.

2.    Second respondent, AAT refused the visa on 18 October 2017 on the basis of PIC 4020 as I was in error in completing the application form of the student visa application.

3.    Second respondent, AAT did not consider my claims which were provided to Minister, DIBP in response to PIC 4020 in reply to Natural Justice.

4.    The decision is unreasonable.

Elsewhere in the same document, also under another heading ‘Grounds of appeal’, it was said:

The details were not completed in error.

The applicants apply for Notice of Appeal from the judgements of Judge Egan made on 10/Sep/19. The decision is unreasonable.

the Parties’ Submissions

24    The applicants did not file written submissions, notwithstanding they were ordered to do so. At the hearing, Ms Kaur’s oral submissions were assisted by an interpreter: it was apparent that this assistance was necessary. Mr Singh was present but did not make oral submissions. In the course of the hearing, the Court asked Ms Kaur a number of questions, and she participated in the hearing in a genuine and co-operative manner. Towards the end of the hearing, when asked if she wished to say anything further, Ms Kaur stated that she did not realise that her mistake would have such big consequences but that she accepted and apologised for her mistake, and asked the Court to consider that she had a small child.

25    In written submissions filed before the hearing, the Minister submitted that leave should be refused, since the applicants had not discharged their onus of persuading the Court that leave to appeal should be granted. The Minister submitted that the challenged decision was not attended by sufficient doubt to warrant the grant of leave to appeal, and nor would the applicants suffer substantial injustice if leave to appeal were refused.

26    At the hearing, Ms Ward, for the Minister, addressed the numerous errors in the Minister’s written submissions. Ms Ward confirmed that the wrong affidavit template was used for an affidavit filed on the Minister’s behalf, the affidavit being incorrectly headed “Federal Circuit and Family Court of Australia”. Ms Ward accepted that references in the Minister’s written submissions to “proposed grounds of appeal” were, in fact, references to grounds for the application for leave to appeal. The references in these submissions to the principles respecting new grounds of appeal and the authorities to which the Minister referred to in this context were irrelevant. On a minor note, it also followed that the Minister’s ‘Appeal Book’ should have been called an ‘Application Book’.

27    Regarding what the Minister referred to in written submissions as “proposed” ground five, the Minister submitted that the Tribunal complied with its procedural obligations under Pt 5, Div 5 of the Migration Act 1958 (Cth) (Migration Act) in that the applicants were invited to attend a hearing before the Tribunal in accordance with ss 360 and 360A. The Minister submitted that although the reasons for the unfavourable decisions of the delegate and of the Tribunal were different, the applicants had been put on notice of the issue on which the Tribunal’s decision depended. The Minister also submitted that in making its decision the Tribunal relied only on the written material submitted by the applicants to the Department and the written and oral evidence Ms Kaur presented to the Tribunal, which, so the Minister said, fell within the exception to s 359A of the Migration Act.

28    As to what the Minister’s written submissions called “proposed” ground eight, the Minister submitted that the absence of particulars to this ground was sufficient to warrant dismissal.

29    Also in written submissions, the Minister submitted that the (new) “proposed” grounds one, three and four disclosed no arguable case of error and bearing in mind that the applicants had not sought to explain why the new grounds were not raised in the Federal Circuit Court, the Court should refuse leave to raise them in this Court. (As already noted, this submission was based on a misconception about the relevant process.)

30    Regarding what the Minister referred to in writing as “proposed” grounds two and six, the Minister contended that the Tribunal considered the material before it, including the material provided by the applicants to the Department and Ms Kaur’s evidence at the hearing. The Minister submitted that it was open to the Tribunal to reach the decision it did on the basis of that material. The Minister submitted that what the Minister called “proposed” ground seven was merely a statement about the refusal decision, which did not disclose any appealable error.

31    At the hearing, Ms Ward conceded the errors in the Minister’s written submissions and made oral submissions with care. These submissions were more helpful than Minister’s written submissions (which did not bear her name).

Consideration

32    It is relevant to note at this point that the orders made in this Court on 7 May 2019 included an order that:

The application for reinstatement is remitted to the Federal Circuit Court, and if granted, the appellants’ application for judicial review of the Tribunal’s decision is to be determined by the Federal Circuit Court.

(Emphasis added)

33    As we have seen, in the Federal Circuit Court the primary judge refused to reinstate the applicants’ proceeding because there was insufficient merit in the judicial review application at the heart of the proceeding. The effect of the dismissal of the applicants’ application for reinstatement is clear; and there is no occasion here to consider the effect of the further order purporting to dismiss the applicants’ judicial review application, which was not the subject of submission.

34    Where a party seeks to appeal from an interlocutory order such as an order refusing an application for reinstatement (see, for example, Tonmoy v Minister for Home Affairs [2019] FCA 145 at [6]) the party must first obtain the leave of the Court to do so: see s 24(1A) of the Federal Court of Australia Act 1976 (Cth).  In order to obtain leave, the applicants in this case must satisfy the Court that, in all the circumstances, the decision of the primary judge is attended by sufficient doubt as to warrant it being reconsidered by this Court and that substantial injustice would result if leave were refused, supposing the decision to be wrong: see Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 398-399. In Re CSR Ltd [2010] FCAFC 34; 183 FCR 358 at [5], Keane CJ and Jacobson J observed that “[g]enerally speaking, leave to appeal will be granted where there is a reasonably arguable case that the decision below is affected by appellable error, and a grant of leave is necessary to remedy a substantial injustice”.

35    I turn first to the matters to which the applicants refer in their application for leave to appeal, and in Ms Kaur’s affidavit. In paragraph 1, under the heading, grounds of application, statements are made about Ms Kaur’s state of mind at the time she answered “no” to the question “[h]as any applicant ever been convicted of an offence in any country …”. As shown at [12] and [13] above, the Tribunal considered this and the related issues carefully in its reasons: see [15]-[28] of the Tribunal’s reasons. It seemed to me that Ms Kaur was sincere in her apology she gave at the hearing for what she had done and I am appreciative of her genuine participation at the hearing. However, as I explained to the applicants, the applicable law does not permit me to take into account expressions of regret or the fact that the applicants have a small child.

36    The applicants have not identified any basis upon which it could be said there was error in the primary judge’s conclusion that it was open to the Tribunal to find that the applicants had provided information that was false or misleading information in a material particular; and that the requirements in clause 4020 had not been met on the basis of the evidence before it: Kaur & Anor v Minister for Immigration & Anor [2019] FCCA 2629 at [5], [19].

37    In paragraph 2, under the heading, grounds of application, the applicants assert that they provided the Department with a detailed letter of explanation, which was ignored by the Tribunal. As already noted, the applicants sent the Department a letter dated 1 June 2017, in response to the Department’s letter of 11 May 2017. The Tribunal specifically referred to the applicants’ 1 June 2017 letter in its reasons at [25], and addressed statements made in it at [42] and [44]. In this particular context, the Tribunal specifically noted (at [44]) that “the applicant was evasive in providing responses and relied upon the content of the applicant’s correspondence to the Department of 1 June 2017”.

38    In her affidavit at [11], Ms Kaur also referred to a letter of 10 November 2017, asserting that the Tribunal’s decision was unreasonable as the Tribunal had not considered it. So far as I can discern, no copy of this letter was before this Court. In any event, any letter of this description would have post-dated the Tribunal’s decision and therefore could not have been considered by it. Its failure to consider any such letter cannot sustain an argument that its decision was “unreasonable” in any relevant way.

39    In paragraphs 3 and 4, under the heading, grounds of application, the applicants make assertions about the effect of the decision “among the families and friends” and about Ms Kaur’s “sufferings”. Matters of this kind were carefully addressed by the Tribunal at [44] and following of its reasons. The applicants have not identified any basis upon which it could be said there was error in the primary judge’s conclusion that it was open to the Tribunal to conclude that neither clause 4020(4)(a) nor (b) were satisfied and therefore the requirements of clause 4020(1) should not be waived in the applicants’ case.

40    In paragraph 5, under the heading, grounds of application, it is said the Tribunal “set aside my justification toward Natural Justice”. If the applicants intend to assert that the Tribunal denied them natural justice, no basis for the claim is shown. On the contrary, the material before me indicates that the Tribunal complied with its Div 5, Pt 5 obligations regarding the conduct of the review, including by inviting the applicants to appear before it to give evidence and present argument (ss 360, 360A); and that Ms Kaur, but not Mr Singh, elected to attend. The Tribunal evidently considered all the evidence and other material properly before it. Although the Tribunal’s decision turned on the applicants’ provision of false or misleading information, and the delegate’s decision turned on Ms Kaur’s non-enrolment, there can be no suggestion in this case that this resulted in any vitiating error. The applicants were evidently on notice that the provision of false or misleading information in their visa applications might be fatal to their applications, and the Tribunal evidently made this clear at the hearing before it: see the Tribunal’s reasons, at [15]-[26].

41    Paragraph 6 asserts that there was no proper and realistic approach in making the decision. Even if this were a ground of error, the applicants have provided nothing by way of particulars or other details to give any substance to this complaint. There is therefore nothing but an unparticularised allegation without any apparent basis. Having regard to the applicable provisions of the Regulations and the reasons of the Tribunal, it appears to me that it was open to the primary judge to find (at [18]) that the Tribunal arrived at its decision in a careful and considered manner.

42    Prior to the hearing, it was unclear what the applicants intended by paragraphs 7 and 8. At the hearing Ms Kaur clarified that these paragraphs were intended to reiterate that the provision of false or misleading information had been a mistake. As already stated, this statement could not bear on my decision.

43    The applicants’ draft notice of appeal adds little to the grounds set out in their application for leave to appeal, other than to assert that the decisions of the Tribunal and of the primary judge were unreasonable. Apart from an error at [7] of the primary judge’s reasons (incorrectly recording that the Tribunal had found that the applicants failed to satisfy clause 500.211 of Schedule 2 of the Regulations), which for present purposes is inconsequential, I can discern no failure in the primary judge’s reasons to evaluate the essential merits of the applicants’ judicial review application. In particular, having regard to the applicable provisions of the Regulations and the reasons of the Tribunal, I can discern no error in the primary judge’s conclusion (at [21]-[23]) to the effect that the Tribunal’s decision was not unreasonable in any legal sense.

Disposition

44    For the reasons stated, I am not persuaded that the refusal of the primary judge to reinstate the applicants’ proceeding is attended by sufficient doubt to warrant it being reconsidered by this Court. It cannot be said here that there is a reasonably arguable case that the decision is affected by appellable error, and a grant of leave is necessary to remedy a substantial injustice. Accordingly, the application for leave to appeal filed on 23 September 2019 should be refused.

45    In the ordinary course the respondent Minister would be entitled to an award of costs. Where proper to do so in exercise of the judicial discretion conferred on the Court by s 43 of the Federal Court of Australia Act 1976 (Cth), the Court may depart from the usual rule that costs follow the event on account of the successful party’s conduct in the proceeding. For example, costs have been reduced where the successful party’s solicitor made errors in preparing a court book, which resulted in the need for an adjournment and the filing of additional affidavits: see Williams v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1174 at [9]. A successful party may also be deprived of costs where his lawyer’s submissions obscured the real issues: see Summers v Repatriation Commission (No 2) [2015] FCAFC 64 at [19]. In these cases, however, it was clear that the conduct in question gave rise to delay and additional costs. On the other hand, the fact that the Minister’s submissions to the Tribunal were erroneous did not affect any subsequent award of costs in an appeal to this Court from the decision of a single judge on judicial review because the mistake did not lead the Tribunal into error: see Tohni v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 125 at [175].

46    As discussed at the hearing of the application, the Minister’s written submissions contained numerous errors and were unhelpful and confusing in some respects, but there is no reason to believe that these deficiencies increased costs or otherwise affected the applicants adversely. It seems to me, therefore that there is not a sufficient basis to depart from the usual rule as to costs. Accordingly, I would order that the applicants pay the Minister’s costs as agreed or assessed.

Associate:

Dated: 9 March 2022