FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2016] FCA 156 Appeal from: Singh v Minister for Immigration and Border Protection & Anor [2015] FCCA 2364 File number: WAD 561 of 2015 Judge: NORTH J Date of judgment: 22 February 2016 Catchwords: MIGRATION – whether Tribunal erred by failing to have regard to relevant material relating to "compelling circumstances" affecting the interests of an Australian citizen for waiver of visa criterion – consideration of meaning of "compelling circumstances" Legislation: Migration Regulations 1994 (Cth) Sch 2 cl 886.225, Sch 4 cll 4020(1), 4020(2), 4020(4) Cases cited: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1645 Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197 Date of hearing: 22 February 2016 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 26 Counsel for the Appellant: The Appellant did not appear Solicitor for the First Respondent: Mr A Burgess of Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS WAD 561 of 2015 BETWEEN: HARJASPREET SINGH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: NORTH J DATE OF ORDER: 22 FEBRUARY 2016 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant 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. REASONS FOR JUDGMENT 1 Before the Court is an appeal from orders made by Judge Lucev in the Federal Circuit Court on 10 September 2015. His Honour dismissed an application for review of a decision of the then Migration Review Tribunal (the Tribunal), now the Administrative Appeals Tribunal, made on 6 August 2014. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, made on 8 August 2013, not to grant the appellant a Skilled (Residence) (Class VB) visa. 2 The appellant did not appear on the hearing of the appeal. At the request of the Court, Mr Burgess who appeared on behalf of the first respondent telephoned the appellant twice shortly after the time fixed for the commencement of the hearing of the appeal. On the second occasion, the appellant answered the phone. Mr Burgess told him that the appeal was listed for hearing and was to proceed, and that it was possible the Court would dismiss the appeal in his absence. The appellant indicated that he was aware of that and did not intend to appear. 3 There is one aspect of the case which makes it desirable for the Court to explain why the appeal should be dismissed. 4 The appeal concerns the operation of cl 4020 of Sch 4 to the Migration Regulations 1994 (Cth). By virtue of a retrospective amendment (see the Migration Amendment Regulations 2011 (No 1) (Cth)), this clause set out one of the requirements of the visa which the appellant sought. Although cl 4020 had not been a requirement at the time that the appellant applied for the visa in May 2009, by the time the delegate came to consider his application in 2013, cl 886.225 of Sch 2 to the Migration Regulations (as amended) made cl 4020 of Sch 4 a requirement for the grant of the visa. Clause 4020(1), (2) and (4) provided as follows: (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 the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1). … (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 The focus of attention in the appeal is the waiver provision in cl 4020(4). 6 The Tribunal found, and it was not contested at any stage of the proceedings, that the appellant had previously been refused a Skilled (Provisional) (Class VC) subclass 485 visa on 13 June 2012 because of a failure to satisfy cl 4020(1), and this refusal had been affirmed by a previously constituted tribunal on 7 August 2013. That is to say, the appellant had been refused a visa because he had been found to have provided false information to the Minister in relation to that visa application, such that in the presently relevant application he was unable to satisfy the requirement of cl 4020(2). 7 The Tribunal, having made that finding, then addressed the question whether the requirement of cl 4020(2) should be waived under cl 4020(4). Embarking on that determination, the Tribunal described its approach at [15] to [18] of its decision as follows: 15. According to Explanatory Statement to SLI 2011, No.13, it was intended that the granting of the waiver would relate solely to compelling circumstances affecting Australia's interests, or the compassionate and compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, not the interests of the visa applicant. 16. In addition, Departmental guidelines (PAM3) provides that there may be compelling circumstances affecting the interests of Australia if: • Australia's trade or business opportunities would be adversely affected were the person not granted the visa (noting that gaining employer sponsorship is not considered sufficient grounds for a waiver); or • Australia's relationship with a foreign government would be damaged were the person not granted the visa; or • Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa. (PAM3 – Sch. 4 – 4020 – The integrity PIC – Discretion to Waive-PIC 4020(4) at [27.2]) 17. It is the Department's position that compelling circumstances affecting the interests of Australia would not include circumstances if the non-citizen was merely working and paying taxes in Australia; paying fees to an education provider or spending money in Australia. (PAM3 – Sch. 4 - 4020 – The integrity PIC – Discretion to Waive-PIC 4020(4) at [27.2]). 18. The Tribunal has had regard to the Departmental guidelines but has also considered the individual circumstances of the applicant and all matters put forward by him. 8 In the result, the Tribunal determined that the requirements of cl 4020(2) should not be waived by reason of the existence of relevant compelling or compassionate circumstances. On that issue, the Tribunal said in [20] to [21]: 20. At the hearing the Tribunal asked the applicant if he made any claims in this regard [in respect of cl 4020(4)]. He said that he had now been in Australia for 8 years, was working, paid tax, made donations and was law-abiding, having a 'clean record'. He said his father had passed away and he was supporting his mother who was ill, that it would be difficult for him to find work if he had to go back to India. He asked the Tribunal to waive the relevant criteria. The Tribunal notes that these circumstances while they might be regarded as compassionate, do not affect the interests of Australia or the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen as defined in r.1.03. The Tribunal allowed the applicant some further time to make relevant submissions in this regard. 21. The Tribunal later received correspondence from the director of a trucking business advising that he started a new business about 4 months ago and has been looking for "a dedicated manager who will be able to take over the day-to-day operations" and stating that the applicant "is a person who not only has the relevant Australian qualifications, but also possesses the right attributes including hard work, reliability, good communication skills and dedication to the job. I have every confidence that he will be able to independently manage and grow the business .." The letter further states that "I need someone to handle the daily operations and make management decisions on the spot.. need a reliable manager to help grow the business..." It is further contended that the business "will have to be closed down if I do not have a manager with the right qualifications and attributes" and "the more the business expands the more people will be employed, which I believe is a compelling reason to grant the visa." It seems from the correspondence that the applicant is not yet employed in the business and the assumptions made about his contributions are speculative and not yet established, as are the expectations about growing the business and the hiring of more employees. On this basis the Tribunal is not persuaded that there would be adverse effects on Australian interests such as to constitute compelling circumstances justifying the grant of the visa. As noted above, while sympathetic to the applicant's personal circumstances, the Tribunal is also not satisfied that they can be characterised as 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. 9 The correspondence received from the director of the trucking business stated: Dear Sir/Madam, MRT CASE NO. 1312507 – HARJASPREET SINGH I, Gurpreet Singh Bajwa, am the director of Bajwa Roadlines Pty Ltd ('Bajwa'). I am an Australian citizen. I am also a director of another transport company, Majha Roadlines Pty Ltd ('Majha'), which has been trading since 2011. I have built up the business of Majha and it now owns 14 trucks and has a substantial turnover. It employs 4 Australian citizens and 8 Australian Permanent Residents. Bajwa started business about 4 months ago. It owns 2 trucks and I am in the process of trying to build up the business of Bajwa. However, I have been preoccupied and kept very busy by the operations of Majha. I have been looking for a dedicated manager who will be able to take over the day-to-day operations and management of Bajwa and built it up to a successful business. I have found it very difficult to source for an Australian person due to the long working hours and weekends involved in the work. I spoke with Harjaspreet Singh, whom I have known for a long time. He is a person who not only has the relevant Australian qualifications, but also possesses the right attributes including hard-work, reliability, good communication skills and dedication to the job. I have every confidence that he will be able to independently manage and grow the business of Bajwa. In a small business, the owner needs a person who not only possesses the right qualifications, but also has the trust of the owner in being able to manage the business. I need someone like Harjaspreet Singh to be able to grow the business of Bajwa. I have experience in the transport business and I am able to train Harjaspreet in the basic know-how so that he can effectively take over the business and operate it independently. I will be able to guide him along, but I need someone to handle the daily operations and make management decisions as the person on the spot. I cannot concentrate on both the businesses at the same time. I need a reliable manager to help grow the business of Bajwa. I have been finding it difficult to look after the Bajwa business. I do not want to lose focus from the Majha business and then concentrate on Bajwa. This will not be in the interests of either business. I have found that to operate the Bajwa business effectively and be able to expand it, I need Harjaspreet. Without his involvement in the management of Bajwa, I will be considering shutting down the Bajwa business and transferring the two trucks belonging to Bajwa over to the Majha business. This will be a real pity as I can see the Bajwa business growing into a viable business and employing at least 15 people. I have recently been asked to put on one more truck for one of our existing customers. As stated earlier, Bajwa will have to be closed down if I do not have a manager with the right qualifications and attributes. In view of what I have stated in this letter, I urge the Honorable Tribunal to take account of the consequences that will flow in the event I am not able to employ Harjaspreet as a transport manager in Bajwa. I look forward to a decision which leads to a permanent visa being granted to Harjaspreet Singh so that he can work for Bajwa and live in Australia and contribute to this great nation of ours. The more the business expands the more people will be employed, which I believe is a compelling reason to grant the visa. Please do not hesitate to contact me if you have any queries. Yours sincerely, GURPREET SINGH BAJWA Director 10 On 4 September 2014, the appellant filed an application for review of the Tribunal's decision in the Federal Circuit Court. The grounds were stated thus: 1. The MRT made a mistake in giving a decision against me. 2. The mrt did not consider the compelling circumstances that affect the company, Bajwa Roadlines Pty Ltd and its' director who is an Austraian citizen. The company will be badly affected if I am not able to work for them as a manager. The company has given his reasons and the mrt made a mistake in not understanding how serious it will be for the Australian citizen. 11 The primary judge rejected ground 1 as follows: 15. Having regard to the above authorities – which are well-established – ground one cannot succeed. If it does anything, it does no more than assert factual error by the Tribunal, which does not and cannot of itself constitute jurisdictional error. Ground one is merely an unparticularised assertion that the Tribunal made a mistake. In the absence of any proper submission, either written or oral, ground one remains merely an unparticularised assertion. As such, it cannot disclose jurisdictional error in the Tribunal Decision. The failure to particularise a ground of review is sufficient basis for it to be dismissed: SZLEX v Minister for Immigration & Anor [2007] FMCA 209 at [17]-[21] per Emmett FM, followed in WZATH v Minister for Immigration & Anor [2014] FCCA 612 at [60] per Judge Lucev (from which an appeal by the applicant was dismissed: WZATH v Minister for Immigration & Border Protection [2014] FCA 969). 12 The primary judge rejected ground 2 on the basis that it was plainly wrong to say that the Tribunal did not consider the circumstances affecting the trucking company. His Honour said in [18]: The allegation in ground two that the Tribunal did not consider the claim by the applicant of circumstances affecting the named trucking company and its director, is plainly wrong. As can be seen from the extract from the Tribunal Decision at CB 129-130 at [21] which is set out at [7] above, this claim was expressly referred to in the Tribunal Decision by reference to material put before the Tribunal by the applicant by way of a letter from the director of that company (a copy of the letter appears at CB 119-120). 13 Further, his Honour found the Tribunal drew conclusions about the circumstances which were open to it and determined that those circumstances were not compelling or compassionate within the meaning of cl 4020. The primary judge said at [19] and [20]: 19. The Tribunal made factual findings and observations that were open on the material in the letter from the director to the effect that Mr Singh was not yet employed in the business of the company, and that the director's letter made assumptions about what contribution Mr Singh would make, which were speculative and not yet established, as were the expectations about the growing of the business and the hiring of more employees. From those factual findings and observations the Tribunal drew conclusions which were equally open to it as to it not being persuaded that there would be adverse affects on Australian interests such as to constitute compelling circumstances justifying the grant of the Skilled Residence Class VB Visa, or that the circumstances could be characterised as compassionate or compelling circumstances affecting the interests of an Australian citizen, namely the director. It is the latter conclusion which is sought to be reviewed in ground two. 20. This was a case in which the material put forward, the factual content of which was largely accepted by the Tribunal, was considered by the Tribunal and was found to be incapable of meeting the relevant tests. On the authorities, it was open to the Tribunal to conclude that those tests were not met. 14 On 25 September 2015, the appellant filed a notice of appeal in this Court. The single ground of appeal is: The Federal Circuit Court ignored relevant material relating to the compelling circumstances affecting the interests of an Australian citizen being the director of Majha Roadlines Pty Ltd. This is a jurisdictional error. As indicated below, that ground is probably intended to be directed to the decision of the Tribunal rather than to the judgment of the Federal Circuit Court. 15 In support of the appeal, the appellant filed an affidavit which relevantly stated: 3. The company, Bajwa Roadlines Pty Ltd needs a manager to operate it's transport business and it has not been able to source for a suitable person to fill in this role. They had offered me this role provided I had a substantive visa, instead of the current bridging visa. 4. The director of the company is an Australian citizen and his business will have adverse effect if he does not employ a suitably qualified manager. I believe that this gives rise to compelling circumstances that will affect the interests of an Australian citizen. 16 The ground of appeal challenges the conclusion of the Tribunal that the appellant had not established compelling circumstances that affect the interests of the director of the trucking business. The argument is thus narrower than the case made before the primary judge. The ground focuses on the circumstances referred to in cl 4020(4)(b), namely, compassionate or compelling circumstances that affect the interests of an Australian citizen. 17 The evidence from the director of the trucking company refers to damage to the company which may result from not being able to employ the appellant. But the company is not an Australian citizen. The evidence does not address disadvantage to the director personally. It was not established that he was a shareholder of the company or would suffer any detriment if the appellant were not employed. Further, the Tribunal assessed any consequence to the trucking company itself as speculative. 18 The requirement for a waiver in cl 4020(4) depends on the satisfaction of the Tribunal, which underscores that the assessment of the facts is a matter for the Tribunal. 19 It was open to the Tribunal to conclude that the consequences to the company were speculative. Indeed, the evidence did not really allow another conclusion. 20 That leaves only the question whether the speculative circumstances could amount in law to compelling circumstances. "Compelling" describes the nature of the circumstances which must exist. It limits the circumstances to those which have a special or strong persuasive force. Neither the Tribunal nor the primary judge gave express attention to the nature of the requirement of compelling circumstances. Rather, the Tribunal made findings on the evidence and went directly to characterise those circumstances as lacking in the necessary characterisation as compelling circumstances. 21 The Tribunal may have been assisted by some of the learning on the issue. Moore J at first instance in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1645 considered the meaning of compelling circumstances in relation to relevantly similar statutory provisions, albeit applicable to waivers of requirements in respect of partner visas. His Honour said at [17]: the Tribunal must consider whether the circumstances are (to use the defined meaning in the New Oxford Dictionary referred to above) such that they evoke interest or attention in a powerfully irresistible way. It is a way that must be irresistible to the Tribunal. Moving away from dictionary definitions (but with the attendant risk of propounding a test or approach not based on language actually used), plainly what the regulation had in mind was that the material reveal circumstances such that the Tribunal would be overwhelmingly inclined to exercise the discretion in favour of the applicant and would approve the sponsorship. 22 His Honour's reference to the New Oxford Dictionary definition was to circumstances "evoking interest, attention … in a powerfully irresistible way." On appeal (Babicci v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 285), the Full Court (Tamberlin, Conti and Jacobson JJ) said at [24]: on any view of the meaning of that word the circumstances must be so powerful that they lead the decision-maker to make a positive finding that the prohibition contained in reg 1.20J(1) should be waived. 23 Recently, the High Court approved and applied those observations in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 90 ALJR 197, where the plurality (French CJ, Bell, Keane and Gordon JJ) said at [31]: the state of mind required of the Minister (or a delegate) must be reached by reference to "reasons" that are "compelling"; that is, those reasons must "force or drive the decision-maker" "irresistibly" to be satisfied that "special consideration" should be given to granting the particular application. [Citations omitted.] 24 At [64], Gageler J said: A statutory requirement that a decision-maker be satisfied that there are "compelling reasons" for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible. [Citation omitted.] 25 The appeal ground alleges that the Federal Circuit Court made a jurisdictional error by ignoring relevant material relating to the compelling circumstances affecting the interests of the director of the trucking company. That ground is probably intended to be directed to the decision of the Tribunal rather than to the judgment of the Court. That ground must fail because the Tribunal clearly considered the letter from the director of the trucking company. Further, as explained, the Tribunal made findings of fact which were open to it, and those facts did not, on the authorities referred to, establish compelling circumstances. 26 The appeal is dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 25 February 2016