Federal Court of Australia

Thakur v Minister for Immigration and Multicultural Affairs [2025] FCA 201

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellants must pay the first respondent's costs and disbursements of the appeal, fixed in the sum of $5,000.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The first appellant, Mr Thakur, came from India to Australia to work as a cook. He applied for a Regional Employer Nomination (Class RN) (Subclass 187) visa. His wife, the second appellant Ms Shahi, was included in the visa application on the basis that she was a member of Mr Thakur's family unit.

2    In support of his application, Mr Thakur submitted documents which he subsequently conceded were bogus. This meant that he did not satisfy a criterion for the grant of a visa which is found in public interest criterion (PIC) in cl 4020 in Sch 4 to the Migration Regulations 1994 (Cth).

3    The first respondent (Minister) is able to waive that criterion, however, where satisfied (relevantly) that compassionate or compelling circumstances that affect the interests of an Australian citizen justify the granting of the visa: PIC 4020(4). In this case, the Administrative Appeals Tribunal did waive the requirement because of the circumstances of Mr Thakur's young daughter, who is an Australian citizen.

4    Nevertheless, the Tribunal affirmed the decision of a delegate of the Minister to refuse to grant the visa. The principal reason it did so was because the application failed to satisfy another criterion, namely that the Minister had approved the employer nomination on which the application was based: Migration Regulations Sch 2 cl 187.233(3).

5    The appellants contended before the Federal Circuit and Family Court of Australia (Division 2) (Circuit Court) that having accepted that there were compassionate or compelling circumstances in respect of Mr Thakur's daughter, the Tribunal should have gone on to grant the visa. They also contended that the Tribunal failed to consider Mr Thakur's likely inability to support his family financially if he were to be returned to India. The Circuit Court did not accept these contentions and dismissed the appellants' application for judicial review of the Tribunal's decision.

6    The appellants now appeal from the Circuit Court's decision. For the reasons that follow, the appeal must be dismissed.

The grounds of appeal

7    The appellants do not have legal representation. The grounds of appeal they now advance are:

1.    The primary judge failed to address the error by the Tribunal in not considering all relevant material when arriving at its decision; in particular, the regulatory criteria relating to waiver of Clause 4020(1) of the Migration Regulations on ground of compassionate and compelling circumstances affecting an Australian citizen.

Particulars

As required by Clause 4020(4), the primary judge failed to consider whether the compassionate and compelling circumstances affecting an Australian citizen, being the first appellant's daughter, justified the granting of the visa.

2.    Secondly, the primary judge failed to specifically address the error by the Tribunal in not considering all the relevant circumstances that were likely to adversely impact the appellant's chances of securing meaningful employment in India to support his family which included an Australian citizen.

Particulars

The first appellant was 51 years' old at time of the decision of the Tribunal. Without an earning capacity, it is highly likely that he would not be able to financially support his family in terms of education and healthcare.

The fact that there is no social welfare or any such safety net for the unemployed in India.

Ground 1

8    There may be two aspects to ground 1. The first is the contention that the primary judge should have found that the Tribunal failed to consider all relevant material as to whether there were compassionate and compelling circumstances affecting an Australian citizen so as to empower the Tribunal to waive compliance with PIC 4020(1). The second aspect appears to be a contention that, having considered those circumstances, the Tribunal should then have considered whether to grant the visa, or perhaps this is a contention that the Tribunal should have just granted it. The corresponding ground of review before the primary judge said that the Tribunal 'fell into jurisdictional error in failing to complete its decision-making process' (at [52]); it may be that the appellants contend that completing the process required the granting of the visa.

9    In relation to the ground of review that corresponds to ground 1 of the appeal, the primary judge found that the Tribunal had considered all the matters raised by Mr Thakur in relation to the waiver of PIC 4020(1), in detail at paragraphs 30-42 of its reasons. The matters considered by the Tribunal in that part of its reasons included:

(a)    letters and school reports regarding the academic progress of the appellants' children in Australia and their integration into Australia (they have a young son as well as their daughter, although at the time of the Tribunal's decision only the daughter was an Australian citizen);

(b)    difficulties that the children and their parents would have in integrating or re-integrating into Indian society, including language difficulties, the fact that they do not own a house in India, and that it would be difficult for Mr Thakur to find a job there and to provide for his family, there being no meaningful welfare system in India;

(c)    the submissions that under the Convention on the Rights of the Child, opened for signature 20 November 1989, 1557 UNTS 3 (entered into force 2 September 1990) decision makers should hold the best interests of the children as a primary consideration in any decisions that affect them, and that those best interests could only be protected if the children continued their education in Australia;

(d)    a submission that it was not safe in India due to COVID-19 (the Tribunal hearing having taken place in July 2021) and that the two children have asthma, which is exacerbated by COVID-19, with this submission also referring to limitations in the Indian healthcare system; and

(e)    Mr Thakur's concern about the prevalence of sexual assaults on young girls in India.

10    On the face of things, then, the primary judge was correct to find that the Tribunal had considered all the matters raised by Mr Thakur in detail.

11    The appellants filed no written submissions in this Court. They took part in the appeal hearing with the assistance of an interpreter. When I asked them to say anything they wished to say as to why the primary judge erred, Mr Thakur made submissions to the effect that due to his age he would be unable to find work in India, that his children had been raised and educated in Australia and that he wants them to have a better future here, that he has no family support in India (all his family having passed away during the COVID-19 pandemic, he said), and that the situation in India is not good, especially for girls, with many cases of rape. The second appellant, Ms Shahi did not wish to make any oral submissions.

12    The matters raised by Mr Thakur in his oral submissions are, substantially, the very matters that the Tribunal did consider, and to the extent that Mr Thakur's list differs from the Tribunal's, the appellants have not established that any of the different matters he raised before the Court were raised with the Tribunal.

13    Further as has been said, and as the primary judge pointed out, the Tribunal did decide to waive the need for compliance with PIC 4020(1) (largely because of the severity of the COVID-19 pandemic in India at the time).

14    It is therefore hard to see how it can be contended that the Tribunal did not consider the circumstances of the children. The appellants have not shown any error in the primary judge's conclusion that the Tribunal did consider the compassionate and compelling circumstances that affected the appellants' then sole Australian citizen child.

15    The second aspect of the first ground of appeal - the contention that the Tribunal should then have gone on to consider whether to grant the visa, or should have granted it - appears to be based on a particular reading of PIC 4020(4). That provides:

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.

16    Therefore in order to waive the relevant requirements, the Minister must reach a state of satisfaction that the circumstances justify the granting of the visa.

17    It may be that the appellants contend that this means that, having decided in effect that the granting of the visa is justified, the Minister (or the Tribunal) must go ahead and grant it. However, any such contention would be mistaken. For the subject of PIC 4020(4), and the step that it authorises, is the waiver of the requirements in PIC 4020(1) or (2), not the grant of the visa.

18    Further PIC 4020 is, of course, not the only criterion that must be satisfied in order for a visa to be granted. Section 31(3) of the Migration Act 1958 (Cth) provides that the regulations may prescribe criteria for a visa or visas of a specified class. Regulation 2.03(1) of the Migration Regulations provides that for the purposes of s 31(3) of the Migration Act, the prescribed criteria for the grant to a person of a visa of a particular class are the primary criteria and any secondary criteria set out in a relevant Pt of Sch 2. Regulation 2.03(1A)(a)(i) provides, however, that if one or more criteria are set out in a Subdiv of a Pt of Sch 2 as a 'stream', the primary criteria are taken to be the primary criteria described in that stream.

19    Mr Thakur's application was for a Subclass 187-Regional Sponsored Migration Scheme in the Direct Entry Stream. Under cl 187.2 of Sch 2, if an applicant applies for a Subclass 187 visa in that stream, the criteria in cl 187.21 and cl 187.23 are the primary criteria.

20    One of the criteria in cl 187.23 is that the Minister has approved a nomination of the visa applicant made by his or her prospective employer: see cl 187.233(1) and cl 187.233(2). That criterion was not satisfied here: before the primary judge was evidence which indicated that Mr Thakur's prospective employer had been advised that the application for approval of the nomination of Mr Thakur and his family had been refused on 22 February 2018.

21    Under s 65(1)(b) of the Migration Act, this meant that the Tribunal was required to refuse to grant the visa. So even though the Tribunal was satisfied that the circumstances of Mr Thakur's daughter justified the granting of the visa, it had no power to grant it.

22    For that reason, and also because the Tribunal did consider the circumstances of Mr Thakur's daughter, the primary judge was correct to find that the Tribunal had not erred in this respect. I do not uphold the ground 1 of the appeal.

Ground 2

23    The matter which, by ground 2, the appellants say that he Tribunal failed to consider was that, at Mr Thakur's age, he would be unlikely to obtain paid employment, and would therefore not be able to support his family to obtain education and healthcare in circumstances where there is no meaningful social security support for unemployed people in India.

24    I will proceed on the basis that ground 2 corresponds to both ground of review 2 and ground of review 3 in the Circuit Court, each of which concerned the Tribunal's consideration of Mr Thakur's prospects of finding employment, and so financially supporting his family, if he were returned to India. Ground of review 3 also referred to the need to obtain healthcare and a suitable education for the children in India and the absence of any social welfare safety net for the unemployed.

25    The difficulty with ground of appeal 2 is that the Tribunal did refer to Mr Thakur's submissions about his age and how that would make it difficult to find employment in India. The Tribunal also referred to his submission that he would not be able to financially provide for his family and that there was 'no meaningful welfare system in India': para 34.

26    Then, however, the Tribunal disagreed with these submissions. And it gave reasons for that disagreement. The Tribunal noted Mr Thakur's 'extensive experience as a chef in India and Australia with reputable dining establishments and hotels which would 'put him in good stead to secure employment in India so he can provide for his family, including his Australian citizen daughter': para 36. Also, as the primary judge pointed out, the Tribunal concluded that the fact that Mr Thakur was working as a courier driver because he had not been able to find full employment in hospitality in Australia demonstrated that he was 'a resourceful person who, despite the difficulties, can adapt and find other types of employment to support his family': para 37. The Tribunal was therefore not satisfied that the applicant could not 'apply the same level of resourcefulness to finding employment in India so that he can support his family': para 37.

27    These parts of the Tribunal's reasons provide no support for the appellants' contention that the Tribunal failed to consider the matters that Mr Thakur had put before it as to his capacity to financially support his family in India. They show, rather, that the Tribunal did consider those matters, but did not agree that Mr Thakur would be unable to find employment so as to provide for his family.

28    The primary judge was correct to conclude (in relation to ground of review 2) that the appellants were expressing disagreement with the Tribunal's conclusions and seeking impermissible factual merits review. I do not uphold ground 2 of the appeal.

Conclusion

29    Many of Mr Thakur's submissions in this Court concerned what he perceived as the broken promises of the company which had provided the employer nomination for his visa application. Mr Thakur told the Court that after providing the nomination, the company sold the restaurant business in which Mr Thakur was to be employed, and disappeared. He asked why the company had suffered no consequences for this conduct.

30    Although these claims were not established by evidence, Mr Thakur clearly had a genuine sense of grievance about the way his putative employer had treated him. He also held readily understandable concerns about what would happen to his family, and the education his Australian citizen children were pursuing in Australia, if he and his wife were required to return to India.

31    But as I sought to explain to the appellants at the hearing, it is not the role of this Court to consider all the merits of the situation and to decide whether they should be granted visas. Nor is its role to investigate and punish any persons who may have contributed to the difficult situation in which the appellants' and their children now are.

32    Nor were either of those things part of the role of the Circuit Court. The appellants could only succeed in that court if they were able to establish jurisdictional error in the decision of the Tribunal. The primary judge gave a broad explanation of what jurisdictional error means at [58]-[59], which need not be repeated here. For the reasons above, his Honour was correct to conclude that the appellants had not established any error of that kind, so that the decision of the Tribunal was not to be overturned. The appeal will be dismissed.

33    The Minister submitted that if that were to occur, he should be entitled to costs in the sum of $5,000. That is less than the $8,323 prescribed by item 15.2 of Sch 3 of the Federal Court Rules 2011 (Cth) as a short form amount that may be claimed for migration appeals dismissed after hearing, and it is a reasonable sum. A lump sum costs order in that amount will be made.

Associate:

Dated:    14 March 2025