Australian Immigration Daily News

Ok everyone, it’s quiz time again! 

Who knows what PIC 4004 requires? 

No cheating is allowed, and no peeking onto Legend! 

I actually confirmed the answer by reading the “case of the day” – Menon v Minister for Immigration & Anor (2016) FCCA 1708 (7 July 2016) and by looking at my “paper” version of the legislation (yes, they still do exist!). 

Hint: have you ever wondered why there is a question on the application forms “Do you have any outstanding debts to the Commonwealth?” 

For those of you who cannot tolerate the suspense, the answer then is that PIC 4004 provides: 

“4004. The applicant does not have outstanding debts to the Commonwealth unless the Minister is satisfied that appropriate arrangements have been made for payment.” 

So, why did PIC 4004 matter in the Menon case? 

It mattered because even though the Tribunal had made a Waensila  error – by incorrectly concluding that it did not have power not to apply Schedule 3 criteria in respect of compelling reasons in existence “at the time of decision” as to whether to exercise the power (in other words, the Tribunal apparently incorrectly took the view in this case that it’s consideration was confined to circumstances in existence “at the time of the application” -  the Minister’s counsel argued before the Federal Circuit Court that the Waensila error did not amount to a jurisdictional error. 

The Minister’s counsel’s argument was that even if there was a Waensila error, that error would not have changed the result.  The line of reasoning was that due to the fact that the applicant could not satisfy PIC 4004, the application was doomed to refusal in any event.  And it has been held that even where a jurisdictional error has occurred before the Tribunal, if that error would not have changed the outcome, then relief will not be granted in favour of the applicant.  For authorities to this effect, see the High Court’s decisions in Ex parte Aala and SZBYR v Minister for Immigration and Citizenship. 

In the Menon case, the applicant did in fact apparently have some outstanding debts to the Commonwealth.  These debts apparently arose in association with costs orders made against the applicant in previous judicial review proceedings (although the source of the debts is not absolutely clear from the text of Justice Street’s judgment).   Apparently, although the applicant had made some payments towards the debt he owed the Commonwealth, he had not paid the debt in full and had not made arrangements to repay it. 

On that basis, the Tribunal concluded that the applicant did not satisfy PIC 4004. 

So, was that the end of the case? Was the application “fried” notwithstanding the obvious Waensila error? 

No, it was not! 

Justice Street concluded that this was not a case where the jurisdictional error made no difference to the outcome. 

It was Justice Street’s view that the failure by the applicant to satisfy PIC 4004 would not inevitably condemn the application to refusal.  

To the contrary, Justice Street held that it was certainly possible that the applicant could satisfy PIC 4004 when the case was back before the Tribunal, by showing that he had either paid the debt or made arrangements to do so.  This was plainly a correct approach by the Court, as, for the purposes of the partner visa that was being sought by the applicant in Menon, meeting PIC 4004 was a “time of decision” criterion. 

In fact, over the objections of the Minister’s counsel, Justice Street went so far as to rule that it would be open to the Tribunal, when considering whether there were compelling reasons not to apply Schedule 3 criteria, to take into account that steps had been taken to attend to payment of the outstanding debts. 

So we now know that not all jurisdictional errors are created equal.  If the error was one that would have changed the outcome of the case, then “constitutional writs” will be issued and relief will be granted in favour of the applicant.  But if the circumstances of the case are such that the application is inevitably bound to fail in any event,  then the jurisdictional error will in the end be of no consequence. 

What we also know from this case is that a failure to satisfy PIC 4004 is not, by itself, necessarily fatal. 

Feel better?

Do you agree with Justice Street's view that making arrangements to pay a debt to the Commonwealth could be considered as a compelling reason to "waive" Schedule 3?

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.