FEDERAL COURT OF AUSTRALIA Thakur v Minister for Immigration and Border Protection [2016] FCA 473 Appeal from: Thakur & Ors v Minister for Immigration & Anor [2015] FCCA 3038 File number: NSD 1616 of 2015 Judge: PERRY J Date of judgment: 5 May 2016 Catchwords: MIGRATION- appeal from Federal Circuit Court dismissing an application for judicial review of Administrative Appeals Tribunal Decision – where visa was refused because first appellant did not meet public interest criterion (PIC) 4020(2) of the Migration Regulations 1994 (Cth) – whether PIC 4020 inconsistent with s 349 of the Migration Act 1958 (Cth) and beyond the regulation-making power in s 504 of the Act in that in substance there can be no real review of the delegate's decision – validity of PIC 4020 upheld- appeal dismissed. Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 Plaintiff M47-2012 v Director General of Security [2012] HCA 46; (2012) 251 CLR 1 Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 Date of hearing: 5 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Appellants: Mr P Cutler Solicitor for the Appellants: Harold W Baker, Solicitor Counsel for the First Respondent: Mr HPT Bevan Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS NSD 1616 of 2015 BETWEEN: RADHIKA THAKUR First Appellant RAJINDER SINGH Second Appellant SOPHIA THAKUR Third Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: PERRY J DATE OF ORDER: 5 MAY 2016 THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The first and second appellant pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from Transcript) PERRY J: 1. INTRODUCTION 1 The appellants appeal from a decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the first respondent (the delegate) not to grant the appellants Temporary Business Entry (Class UC)(Subclass 457- Temporary Work (Skilled)) visas on the ground that the first appellant, who was the primary applicant for the visas, did not satisfy Public Interest Criterion (PIC) 4020 and, therefore, the criterion in cl 457.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The second and third appellants, who are the first appellant's husband and daughter respectively, were included in the application as members of her family unit. It was not in issue before the Tribunal that the second appellant had earlier been refused a visa on the grounds that he did not meet PIC 4020(1) and that that decision had been affirmed by a different Tribunal member. 2 PIC 4020 is set out in clause 4020 of Schedule 4 to the Regulations and requires, in essence, that the Minister be satisfied that the visa applicant and each member of the family unit have not within a specified period been refused a visa on the ground of providing a bogus document or false or misleading information. 3 The only issue on the appeal is whether the primary judge correctly held that PIC 4020 is not beyond the regulation-making power in s 504 of the Migration Act 1958 (Cth) (the Act) by reason of an inconsistency between PIC 4020 and the Act. Specifically, the appellants contend that PIC 4020 is inconsistent with the appellants' right under s 349 of the Act to a review in the Tribunal of the merits of the delegate's decision. 4 For the reasons that follow, the primary judge correctly held that the regulation is not inconsistent with Act and invalid. It follows that the appeal must be dismissed. 2. BACKGROUND 2.1 The visa application and the delegate's decision 5 On 17 July 2014, the appellants applied for the visas. The application was made on the basis of sponsorship by Kym and Nunziata G Waddington (t/a Mackay Taxi Holdings P/L) in the nominated occupation of Transport Company Manager. On 12 August 2014, a case officer of the Department of Immigration and Border Protection (Department) wrote a letter to the first appellant. The letter invited the first appellant to comment on departmental records indicating that a member of the first appellant's family had been refused a visa on the ground of providing a bogus document or false or misleading information in relation to the application for that visa contrary to PIC 4020(2). The letter also stated that it was not open to the Department to revisit that refusal as a part of this visa application but that the appellant may also identify any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen, to justify the waiver of the requirement in PIC 4020(2). 6 On 1 October 2014, the delegate refused the application on the ground that the first appellant had failed to satisfy PIC 4020(2) and the delegate was not satisfied that there were circumstances that nonetheless justified the grant of the visa. 2.2 The decision of the Tribunal 7 On 21 October 2014, the appellants applied for review of the delegate's decision in the (then) Migration Review Tribunal. 8 On 8 July 2015, the appellants appeared before the Tribunal to give evidence and present arguments, and were represented by their registered migration agent. 9 On 22 July 2015, the Tribunal affirmed the decision not to grant the visas to the appellants. 10 In its reasons, the Tribunal identified that the issue on the review was whether the visa applicant met PIC 4020 as required by cl 457.224 of Schedule 2 to the Regulations. The Tribunal continued: 10. The applicants provided to the Tribunal a copy of the delegate's decision record. It records that in the period commencing 3 years before this visa application was made the second named applicant, a member of the applicant's family unit and over 18 years, was refused a visa on the grounds that he did not meet PIC 4020(1). He had lodged a Subclass 457 visa application on 12 November 2012 having also been sponsored by Kym M and Nunziata G Waddington (t/a Mackay Taxi Holdings P/L) in the nominated occupation of Transport Company Manager. That visa application was refused on 1 March 2013. 11. The Tribunal discussed this issue with the applicants at the hearing. The applicant confirmed that the second named applicant had been refused a visa on the grounds that he did not meet PIC 4020(1) and that he had appealed that decision and it was affirmed by a different Tribunal member. She indicated that she disagreed with the outcome of that review but also indicated that she understood that there is a decision that the second named applicant has been refused a visa because he did not meet PIC 4020(1). 12. The Tribunal finds that a member of the applicant's family unit has been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made and ending when the visa is granted or refused. Therefore PIC 4020(2) is not met. 11 Having concluded that PIC 4020(2) was not met, the Tribunal held that it was not satisfied that the requirements of PIC 4020(2) should be waived for the following reasons: 26. First it has considered the submissions in relation to the third named applicant's medical conditions, her illness in India and her enrolment in a school for the 2017 school year. As confirmed at the hearing the third named applicant is not an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The Tribunal accepts that the third named applicant became ill when she went to India in 2014 and 2015 and that she did not recover until she returned to Australia. It also accepts that she is enrolled in an Australian school due to commence in 2017. It takes into account the representative's submissions on Australia's obligations to children. The Tribunal considers it to be in the third named applicant's best interests to stay with her parents. There is nothing to suggest the third named applicant will be separated from her parents if the waiver provisions are not applied. Overall it is not satisfied these are 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. 27. The Tribunal has considered the assertions that the business and its employees, some who are Australian citizens, will be adversely affected if the waiver provisions are not applied. The Tribunal accepts that there may be an impact on the business, and its employees, if the visa is not granted to the applicant. It accepts that the applicant has good communication with the employees and that they are happy working with her. It accepts that there may be difficulties in finding a suitable person for the position and that there are challenges in filling positions in regional Australia. It takes into account the assertion that the applicant's employment benefits regional Australia and that the taxi business is important for Mackay. It also accepts that the business may lose two employees if the visas are not granted. However it is often the case that businesses have to adjust to staff changes and employee departures. Also businesses often have to train new staff in the duties of a position. It is also often the case that regional businesses face some difficulties in filling positions. On the evidence before it, the Tribunal is not satisfied the business will suffer job losses if the visa is not granted to the applicant. It accepts that it may be more difficult for the sponsors to arrange their holidays. However the Tribunal is not satisfied on the evidence before it that the sponsors' business will be so adversely affected by the applicant not being granted the visa that the circumstances are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that effect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. 28. The Tribunal has considered the assertions that the sponsors' children will be adversely affected if the visa is not granted to the applicant. The Tribunal accepts the sponsors' children are Australian citizens. However, as discussed with the applicant at the hearing, it is often the case in Australian families that both parents are employed, including in their own business, and they need to juggle the competing demands of work and family. The Tribunal is not satisfied in this case that these are 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. 29. The Tribunal has considered the submissions that a significant period has passed since the second named applicant's visa was refused, the assertion that the applicant has not submitted any fraudulent documents and the view that it has not been proven that the documents provided by the second named applicant were not genuine. It does not consider any of these circumstances to be 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. 30. The Tribunal has considered the social relationship between the applicants and the sponsors. It is satisfied that they will be able to continue their friendship if the visa is not granted. It is not satisfied that these are 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. 12 The Tribunal concluded at [31] that: Having considered all of the evidence in relation to the waiver provisions, the Tribunal is not satisfied that there are 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. Therefore the requirements of cl.4020(2) should not be waived. 13 I note that, while it was not relevant for the Tribunal to determine under PIC 4020, there is no suggestion in the Tribunal's decision that the first appellant was personally involved in the provision of any bogus document or false or misleading information in the case of her husband's application, and the Tribunal noted in its decision that she disagreed with the outcome on her husband's earlier application. 2.3 The decision of the Federal Circuit Court 14 On 13 August 2015, the appellants filed for judicial review of the Tribunal's decision in the Federal Circuit Court. The grounds of that application were stated as follows: 1. The tribunal misconstrued the operation of PIC 4020(2) in that no bogus document or information that is false and misleading in a material particular was provided by the applicant. 2. PIC 4020 is beyond power and invalid to the extent that it purports to apply to the applicant in circumstances where she is a member of the family unit of an applicant in a previous visa application. 15 On 19 November 2015, the Court below dismissed the application for judicial review. As to the first ground, the primary judge rejected the proposition that PIC 4020(2) should be read as if it required that "the applicant and every member of a family unit of the applicant have been refused a visa because of a failure to satisfy the criteria in (1)". No complaint is made on this appeal of the dismissal by the Court below of the first ground of judicial review. 16 In rejecting the second ground, the primary judge held that: 8. No provision of the Migration Act 1958 was identified as being inconsistent with PIC 4020. I accept the first respondent's submission that nothing in Subdivision C of Division 3 of Part II gives rise to any repugnancy or inconsistency. Counsel for the applicants sought to argue that the review process under s.347 was in some way inconsistent or repugnant with the work done by PIC4020(2). I reject that submission. I note that the review process before the Tribunal was one in which the Minister may waive the requirements of PIC4020(2) under PIC4020(4), and I note that the PAM3 procedure in relation to considering that discretion includes a reference to: • the nature and extent of the fraud. Factors to consider include: • the extent of false or misleading information or documents (for example, multiple falsities or misleading information), • a past history of attempting fraud against Australia's migration program. 9. Reference was also made to s.338(2) in respect of the reviewable decision. There is nothing in that provision, in my opinion, that gives rise to some inconsistency or repugnancy with PIC4020(2). Further, the application of PIC4020(2) to the first and third applicants as well as the second applicant does not give rise to any invalidity of the kind identified in Zeng Fu Qiu and Zeng Hu Li v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 at 446 10. It is clear from the scheme of the Migration Act 1958 and including for example Subdivision C Division 3 of Part II of the Act that family members may be affected by adverse findings in relation to bogus documents concerning a cancellation in respect of a visa holder under those provisions. In my opinion 4020(2) is entirely consistent with the object of maintaining the policy integrity and honesty in the visa process and the overarching policy of the Act to protect Australians. PIC4020(2) is not in its operation unreasonable or oppressive or capricious. Ground 2 fails to make out a jurisdictional error. 3. LEGISLATIVE FRAMEWORK 17 Section 31(3) of the Act provides that the regulations may prescribe criteria for a visa or visa of a specified class. That section is not, however, the source of the power to prescribe such criteria. The source of that power is located in s 504 of the Act which authorises the Governor-General to make regulations "not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed …": Plaintiff M47-2012 v Director General of Security [2012] HCA 46; (2012) 251 CLR 1 at 41 [53] (French CJ) and 72 [62] (Hayne J). 18 Pursuant to these provisions, reg 2.03 of the Regulations provides that the prescribed criteria for the grant to a person of a visa of a particular class are "(a) the primary criteria set out in a relevant part of Schedule 2; or (b) if a relevant part of Schedule 2 sets out secondary criteria, those secondary criteria." 19 The criteria to be satisfied in order to be granted a Temporary Work (Skilled) (subclass 457) visa are set out in Schedule 2 of the Regulations. As I have mentioned, relevantly cl 457.224(1) provides that the visa applicant must satisfy various public interest criteria including PIC 4020. Regulation 1.03 defines "public interest criterion" or PIC as "a criterion set out in a clause of Part 1 of Schedule 4, and a reference to a public interest criterion by number is a reference to the criterion set out in the clause so numbered in that Part". 20 PIC 4020 in Schedule 4 of the Regulations relevantly provides 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 Tribunal during the review of a Part 5‑reviewable decision, 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 to grant the visa; 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. 21 A "Part 5‑reviewable decision" is defined in s 338 of the Act. The consequence of a decision of the Minister or her or his delegate being a Part 5‑reviewable decision is that an application may be made within a prescribed period to the Tribunal under s 347 of the Act for review. 22 PIC 4020(5) defines the expression "information that is false or misleading in a material particular" for the purposes of PIC 4020 to mean: …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. 23 "Bogus document" is defined in s 5 of the Act 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. 4. CONSIDERATION 24 The sole ground of appeal is that: The Federal Circuit Court fell into error in respect of the construction of PIC4020, in that PIC4020 is beyond power and invalid on the basis that it excludes the appellants right of merits review in circumstances where she is a member of the family unit of an applicant in a previous visa application. 25 It is not in dispute that the decision to refuse the first appellant's visa application is a "Part 5 reviewable decision" within the meaning of s 338 of the Act. 26 The function of the Tribunal on review of such a decision is set out in s 349 of the Act, namely: (1) The Tribunal may, for the purposes of the review of a Part 5-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision. (2) The Tribunal may: (a) affirm the decision; or (b) vary the decision; or (c) if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or (d) set the decision aside and substitute a new decision; or (e) if the applicant fails to appear—exercise a power under section 362B in relation to the dismissal or reinstatement of an application. 27 It is well established that the task entrusted to the Tribunal on review under s 349 of the Act is to arrive at the correct or preferable decision as at the time that it makes its decision: Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286. 28 That being so, the appellants contend that PIC 4020(2) is inconsistent with s 349 of the Act and therefore beyond the regulation-making power in s 504 of the Act on the following bases: 14. Accepting that PIC4020(2) applied to the First Appellant by reason of the refusal of her husband's visa on the basis that he failed to meet PIC4020(1), the decision to refuse to subclass 457 visa application became unreviewable. There are two reasons for this submission. 15. First, even if the First Appellant was able to demonstrate that the documents provided by her husband were not bogus, it would not change the fact his visa had been refused on the basis of PIC4020. In other words, PIC4020(2) will apply to the First Appellant. PIC4020(2) is in effect imposed on the First Appellant by the decision of the Minister's delegate in relation to a previous visa application by the Second Appellant. 16. Second, where PIC4020(2) applies, there is only one possible outcome in the AAT, namely that the refusal decision must stand. In those circumstances, the AAT has not exercised (and cannot exercise) its power under section 349(2)(b) or (d). 17. In relation to section 349(2)(a), it is submitted that there is a difference between "may affirm" and invariably must affirm. The former is a true review the latter is not. 18. Consequently, the Migration Act provides for merits review of "reviewable decisions". The refusal of a visa on the basis of PIC4020(2) operates differently to 4020(1) and it is in substance, unreviewable. 29 In short, counsel for the appellants submitted that where PIC 4020(2) applies, there is in substance no review as only one outcome is possible. It is not possible, in the appellants' submission, for the Tribunal to do otherwise than affirm the decision. In this regard, the appellants submitted that the criteria for waiver of PIC 4020(2) in PIC 4020(4) were so narrow that it was difficult to envisage any case in which they might apply. 30 With respect, I do not accept the correctness of those submissions. In my view, PIC 4020 is not inconsistent with the merits review task vested in the Tribunal by s 349 of the Act but allows for a "true review" of the delegate or Minister's decision by the Tribunal. 31 First, any decision by the Minister or an officer refusing a visa to a member of the same family unit with respect to an earlier visa application because the visa applicant had provided a bogus document or false information, would itself have attracted a right to a full merits review under s 349 of the Act. Equally, a decision by the Tribunal on review refusing an earlier visa application for a reason falling within PIC 4020(1) exhausted the available mechanisms for merits review under the Act with respect to that earlier visa application. So understood, in taking the existence of an earlier decision which falls within PIC 4020(2) as the criterion, PIC 4020(2) operates so as to preclude a collateral attack on that earlier decision. In other words, it protects the efficacy of the earlier decision, thereby promoting the public policy of finality in administrative decision-making: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 603 [8] (Gleeson CJ), 615-616 [52]-[53] (Gaudron and Gummow JJ) and 618 [63] (McHugh J). 32 Secondly, while maintaining the efficacy of the earlier visa decision, it remains open to a visa applicant within the same family unit on a later application to seek merits review by the Tribunal in a real and substantive sense of a decision to refuse the later application because of a failure to satisfy PIC 4020(2). Specifically, the visa applicant can seek merits review of whether: (a) the decision on the earlier visa application was in fact "because of" the provision of a bogus document or false or misleading information, or was for some other reason; (b) the visa applicant is a member of the same family unit; and (c) the Tribunal should be satisfied that circumstances exist within PIC 4020(4)(a) or (b) which would justify the granting of the visa and, therefore, that the requirements of PIC 4020(2) should be waived. 33 It follows that I do not accept that, as a matter of substance, the criterion in PIC 4020 mandates that the Tribunal must invariably affirm a decision on review and, therefore, that it leaves no scope for the Tribunal to discharge its function as to merits review. 34 In the present case, the Tribunal undertook its function on review in accordance with s 349 of the Act. It considered whether the requirement in PIC 4020(2) was met. Upon finding that PIC 4020(2) was not met, the Tribunal then considered whether to waive the requirement pursuant to PIC 4020(4) having regard to the circumstances raised by the appellant, but declined to do so. Accordingly, I can see no error of a jurisdictional kind in the Tribunal's consideration of the criteria in PIC 4020. 35 Ultimately the appellants' arguments took issue with the fairness of the criteria in PIC 4020(2) where it applied to visit upon a potentially innocent party, the consequence of conduct found to be in breach of PIC 4020(1) undertaken by a different family member. While it can be appreciated that PIC 4020(2) may operate harshly in such cases, that is not a ground for interference by this Court or by the Federal Circuit Court. Nor it is open to this Court or the Court below to consider the merits of the Tribunal's decision not to waive that requirement, a court's function on judicial review being limited to a consideration of whether the decision by the Tribunal was made lawfully under the Act, i.e., whether it is invalid by reason of jurisdictional error: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at 1127 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 5. CONCLUSION 36 For the reasons set out above, the appeal should be dismissed I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate: Dated: 9 May 2016