Sarkar v Minister for Immigration and Border Protection

1. The application for leave to appeal from the orders made by the Federal Circuit Court on 1 February 2018 is refused.
2. The applicant pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

NORTH J: 1 Before the Court is an application for leave to appeal from orders made by the Federal Circuit Court on 1 February 2018. The Federal Circuit Court dismissed an application for review of a decision of the Administrative Appeals Tribunal. The Federal Circuit Court acted under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), to dismiss the application summarily. That judgment was interlocutory and hence leave to appeal is required. The decision of the Tribunal was made on 18 April 2017. It affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the applicant a Student (Temporary)(Class TU) visa. 2 A primary criterion for the grant of the visa was that the applicant meet the Public Interest Criterion 4020 (PIC 4020) and not provide a bogus document or information that is false or misleading in a material particular: see cl 572.224 of the Migration Regulations 1994 (Cth). The criterion may be waived if 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. 3 The applicant provided the Department, in support of his application for a student visa, a bank statement from Basic Bank in the name of Vicar International for the period 15 July to 30 November 2013 and a letter from the bank dated 30 November 2013 stating that the applicant's mother was the proprietor of the business and maintained the bank account. The Department received information from an offshore post that integrity checks revealed that the financial documents provided by the applicant were fraudulent because the applicant's mother was not the proprietor of the business and was not the holder of the bank account. 4 At a hearing conducted by the Tribunal on 18 April 2017, the applicant was asked to respond to the Tribunal's observation that the documents provided in support of the application were fraudulent. The applicant did not respond. The Tribunal determined: 18. On the basis of the evidence before it, the Tribunal finds that there is evidence before it that the applicant has given or caused to be given to the Department in relation to his student visa application a 'bogus document', as defined in s.5(1), ie a document that the Tribunal reasonably suspects purports to have been, but was not, issued in respect of the person. 5 The Tribunal then addressed the question of waiver as follows: 22. After explaining to the applicant at hearing the waiver provisions and, at his request, providing examples of 'compelling circumstances' as outlined in the Departmental guidelines (PAM 3), the Tribunal asked him if he wished to put forward any submissions in this regard. 23. The applicant stated that he was 'not that important a person' as to affect the interests of Australia, but a 'simple man' with a clear record. However, he had been studying hospitality for a long time and was now studying an Advanced Diploma of Leadership and Management, which would give him a good knowledge of management. He had lengthy experience as a part-time barista at Zucca café and had the support of his employer, who he believes is an Australian citizen, whose letter of support he had provided to the previous Tribunal. The applicant believed that through his experience, qualifications and skills, he could make a contribution to Australia. 24. The Tribunal has had regard to the applicant's submissions, as well as the letter from the applicant's employer, the proprietor of the Zucca café dated 21 October 2015, which describes the applicant as a reliable and hard working individual, liked by customers. He states that the applicant has made a 'tremendous contribution to the growth of the business' and that the loss of this employee would 'impact on our business tremendously'. 25. The Tribunal accepts that the loss of an experienced and well-liked employee, who has contributed to business growth, may have a temporary impact on his employer's business, in the Tribunal's view, staff movement is part of general business operations. The Tribunal does not consider that these factors rise to the level of 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 as defined in r.1.03 which justify the grant of the visa. 26. Accordingly, the Tribunal is not satisfied that the requirements of PIC 4020(1) should be waived. 6 On 15 May 2017, the applicant filed an application for judicial review in the Federal Circuit Court. There was only one ground, namely, that the Tribunal failed to exercise its jurisdiction by failing to consider all aspect of the applicant's case. The Federal Circuit Court said that the ground of review may have been based on the applicant's successful challenge to an earlier decision in which the Tribunal failed to consider correspondence from the applicant's employer. The Federal Circuit Court continued: 26. The Tribunal, as presently constituted, did not make the same mistake. The Tribunal expressly considered the correspondence from Mr Sarkar's employer. In my opinion, the present Tribunal did not overlook any element or integer of Mr Sarkar's claims. 7 In respect of the waiver question, the Federal Circuit Court said: 29. To the extent that Mr Sarkar contends that the Tribunal failed to consider his claims in relation to whether PIC 4020(1) should be waived pursuant to PIC 4020(4), such a contention cannot succeed. The Tribunal expressly discussed the requirements of the PIC 4020 with Mr Sarkar, including that the compelling circumstances must affect the interests of Australia, and the compelling or compassionate circumstances affect the interests of an Australian citizen, an Australian permanent resident or eligible New Zealand citizen, and gave him examples as outlined in the Departmental guidelines. Mr Sarkar stated that he was "not that important a person" as to affect the interests of Australia but relied on his employer's support. The Tribunal expressly considered Mr Sarkar's submissions including in relation to his employment. However, the Tribunal was not satisfied that these factors rose to the level of compelling circumstances that affect the interest of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen to justify grant of the visa. Accordingly, this ground must fail. [Footnotes omitted.] 8 The Federal Circuit Court concluded that the applicant did not demonstrate an arguable case of error by the Tribunal and dismissed the application summarily under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). 9 On 13 February 2018, the applicant filed an application for leave to appeal to this Court from the orders made by the Federal Circuit Court. The grounds of the proposed appeal are: 1. The primary judge erred by holding that the Respondents did not make jurisdictional error by failing to exercise jurisdiction. 2. The Primary judge erred by holding that the Second respondent did not consider relevant consideration submitted relevant to the applicant's application establishing compelling reasons to consider waiver provision for PIC 4020. Particulars • The applicant submitted through the letter from his employer Zhong Jin Australia dated 21 October 2015 that applicant makes good contribution to the hospitality industry in Australia. The Tribunal considered what are issues that the applicant's employer would face in Australia as a result of applicant's leaving the job, however, the Tribunal failed to consider a particular submission which is very significant establishing compelling circumstances affecting Australia, namely, applicant's contribution to the hospitality industry. It is submitted that failure to consider a very significant and relevant the Tribunal committed a legal error. • The applicant's father provided financial support statement to the Department of Immigration and Border Protection (Court book 95) that he would provide financial support of $21300 and Ms Khatun provided a statement confirming that she would provide financial support of $48000 (Court Book 48) to the applicant to spend in Australia for his studies which is a significant financial contribution to the Australian economy. The Tribunal failed to assess to consider for the PIC 4020 waiver provision which is a significant information establishing compelling circumstances affecting Australia, namely, whether Australian economy would be affected if the applicant has to return to Bangladesh and he would be barred to come to Australia for 3 years. • The applicant provided a COE dated 20 April 2017 where it is mentioned that the applicant had already paid $1750 and would pay another $5250 which would be a contribution to the Australian economy. The Tribunal failed to consider whether it is a compelling reason affecting Australia, namely Australian economy. It is submitted that it is relevant consideration and if it would have been considered by the Tribunal which would have established compelling reason affecting Australia. It is submitted that in many cases, the Court held that failure of the Tribunal to consider relevant consideration would amount to jurisdictional error. (See Fobizi v Minister for Immigration & Anor [2017] FCCA 1738 (3 August 2017), Singh v Minister for Immigration & Anor [2017] FCCA 1901 (14 August 2017)] In Sharma v Minister for Immigration & Border Protection & Anor [2015] FCCA 2669 (6 October 2015) the Judge Emmett noted the following: 46. There was no consideration by the MRT why the evidence before it, particularly of the applicant, did not satisfy the MRT that, relevantly, there were compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen or an Australian permanent resident. The applicant provided evidence that she may be able to assist Australian citizens in giving them jobs at her place of work, where she was the manager. It was open to the MRT to find such evidence not to be sufficient to satisfy it that PIC 4020(1) should be waived. However, it was also open to the MRT, based on the applicant's evidence, to find that PIC 4020(1) should be waived. 47. In short, the evidence of the applicant may be capable of establishing compassionate or compelling circumstances that affected the interests of Australia or an Australian citizen or permanent resident. If the MRT was to find that they did not, the MRT was required to engage in an active intellectual process of considering the applicant's evidence and give reasons for its failure to be satisfied that PIC 4020(1) should be waived (see WZAQU v Minister for Immigration and Citizenship [2013] FCA 327 at [12] per Flick J). To conclude that PIC 4020(1) should not be waived was, in all the circumstances, otherwise unreasonable (see Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332). 48. Accordingly, the MRT's decision is affected by jurisdictional error and the matter should be remitted for determination according to law. It is submitted that though the applicant did not expressly submitted that his father's and Ms Khantun's statement to the Department should be considered against the waiver provision, it is submitted that such information was available in the Tribunal's records and therefore, the Tribunal has an obligation to consider the relevant consideration. [See SZSNY v Minister for Immigration & Anor [2013] FCCA 1465 (27 September 2013] Further, the case laws suggest that the Tribunal not only had the duty to advert to the claim but it has an obligation to expressly engage with it and failure to do that would amount to jurisdictional error. [(See AVU 15 v Minister for Immigration and Border Protection [2017] FCA 608 (1 June 2017)] It is respectfully submitted that the evidence the applicant provided may be capable of establishing compassionate or compelling circumstances that affects the interest of Australia, namely Australian economy. Accordingly it is submitted that the Tribunal decision is infected by legal error due to the failure of the Tribunal to consider such relevant consideration to consider waive PIC 4020. 10 The grounds of the proposed appeal were not raised in the Federal Circuit Court. Consequently, leave is required to raise them on appeal. The first proposed ground of appeal is not particularised. There is no allegation which identifies the error said to have been made by the Tribunal. 11 The second ground relates only to the waiver question and sets out a number of matters which it is alleged that the Tribunal failed to consider. 12 The first particular relied upon relates to the contents of the employer's letter, which referred to the contribution made by the applicant to the hospitality industry in Australia. At [24], which is extracted earlier in these reasons for judgment, the Tribunal expressly referred to the letter and its contents. The Tribunal considered the letter and took it into account in assessing whether there were the necessary compelling circumstances required by the Regulations. 13 The second and third particulars contend that the financial support to be provided to the applicant for his studies by his parents and the amounts paid for his study were matters relevant to the waiver consideration. They further contend that the Tribunal failed to consider them in determining whether the Australian economy would be affected if the applicant had to return and be barred from returning to Australia for three years. 14 These matters were relied upon by the applicant in support of the criteria which concerned the availability of funds to support his study. The applicant did not rely upon these matters in the Tribunal in support of his waiver application. They did not obviously affect the Australian economy or bear on the other matters under consideration. In those circumstances, the Tribunal was not bound to consider those issues in respect of the waiver application. 15 The draft notice of appeal then refers to a number of cases which held that the failure to address relevant issues or to engage in an active intellectual process of consideration might amount to jurisdictional error. The authorities are not relevant in the circumstances because the Tribunal was not bound to consider the payment of the applicant's study costs as part of the consideration of the waiver provisions. The Tribunal engaged in an active intellectual process in applying the waiver provisions. 16 It follows that the proposed grounds of appeal are bound to fail and hence, the application for leave to appeal is dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.