Australian Immigration Daily News

How can you tell whether the Tribunal has committed jurisdictional error when it has refused to grant a waiver of Public Interest Criterion 4020?

And how can you know whether it is “worth it” for your client to challenge the refusal in the Federal Circuit Court? In other words, that there are at least “reasonable prospects for success” if your client fights the waiver refusal in the FCC?

Fortunately, a decision handed down yesterday by Judge Riley of the FCC in Melbourne provides some useful guidance: Bi v Minister for Immigration & Anor (2017) FCCA 2652 (1 November 2017).

The background of this case was that the applicant was seeking a Subclass 485 “Temporary Graduate” visa. In his application, he claimed to have taken an IELTS test in Singapore. However, the “Facial Image Comparison Unit” determined that the applicant had not taken the IELTS test himself. When the Department gave the applicant an opportunity to comment on this information, he claimed that he had “gained weight” and that the “digital imaging technology had created some distortion”. 

The Department did not accept these arguments, found that the applicant had provided a bogus document in support of his visa application, and proceeded to refuse the application.

Later, at the Tribunal stage, the applicant conceded that he had not personally taken the IELTS test.

So, the only remaining question before the Tribunal was whether there were 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, warranting a waiver of PIC 4020 and the consequent grant of the visa.

The applicant provided evidence to the Tribunal that had gotten a job offer from a real estate development business in Tasmania and had become the company’s Development Project Manager; that he had started another real estate development project in Melbourne; and that if “things went well” he would have a significant amount of income, and would thus contribute a significant amount of tax.

Although the Tribunal found that the matters raised by the applicant “make a contribution to Australia”, it was not satisfied that, either individually or cumulatively, they reached the standard of being compelling circumstances that affect the interests of Australia.  The Tribunal thus decided not to waive PIC 4020, and it affirmed the refusal of the visa application. 

Was there error in this decision that the circumstances were not “compelling”?

Judge Riley reviewed the case authorities which consider how the term “compelling” should be interpreted.  These cases include the decision of the Full Court in Babicci v Minister for Immigration and Multicultural and Indigenous Affairs, where it was held that “compelling” means “sufficiently powerful  to lead a decision-maker to make a positive finding” in  favour of granting the waiver and Paduano v Minister for Immigration and Multicultural and Indigenous Affairs, where  it was held that “compelling” means “sufficiently convincing to move the decision-maker to exercise its discretion” to grant a waiver.

With these cases in mind, Judge Riley observed that: “The question of whether compelling circumstances affecting the interests of Australia (are) sufficient to justify a waiver is a matter of fact and degree”.

In other words, the decision as to whether circumstances are “compelling” is one that involves subjective judgment – is the coffee sweet enough, or, if you are one of the three bears who visited Goldilocks’s  house,  is the porridge hot enough and are the beds soft enough?

So, given that the Tribunal has latitude to make a subjective merits decision as to whether circumstances are sufficiently compelling to justify a waiver of PIC 4020, again, how can you tell when the Tribunal has fallen into jurisdictional error?

The analysis provided by Judge Riley in Bi tells us that this is how:

The way to find whether error occurred is to look to the process by which the Tribunal arrives at its conclusion concerning whether the circumstances are compelling enough to justify a waiver, and not to the conclusion itself (which is wholly within the realm of merits review).

Thus, in considering whether to grant a waiver, the Tribunal must engage in an “active intellectual process” through which it gives the applicant’s claims “genuine consideration”. 

This means that the Tribunal must not overlook or fail to consider any claim put forward by the applicant that might affect the decision.  So if evidence is put to the Tribunal concerning a matter that may be a “compelling circumstance”, and the Tribunal does not refer to that claim or consider it in its decision, then it is likely that jurisdictional error has occurred.

Secondly, the Tribunal must do more than simply recite the claims that were raised by the applicant, and then proceed directly to stating a conclusion that it is not satisfied that those matters amount to compelling circumstances. That was the error that was made by the Tribunal in Sharma v Minister for Immigration and Border Protection.

Instead, the Tribunal’s decision record must demonstrate that the Tribunal has engaged in a process of actively weighing the matters that are put by the applicant.

In the Bi case, Judge Riley found that the Tribunal had engaged in this process of weighing the applicant’s claims.  The Tribunal’s decision had recorded that the “matters raised by the applicant make a contribution to Australia”, but that they did not reach the standard or level of amounting to compelling circumstances.

So: as long as it is clear that the claims put forward by the applicant have not been overlooked, and that they have been actively weighed, then jurisdictional error will not have occurred.

Again, it is really only a failure in the Tribunal’s reasoning process that can be successfully attacked in the FCC; the substance  of the Tribunal’s decision as to whether the matters put forward by an applicant are compelling  is a merit issue that remains wholly within the discretion of the Tribunal (so long as the ultimate conclusion is not so manifestly unreasonable that no reasonable decision-maker would have arrived at it!).