AGGARWAL v Minister for Immigration
[2015] FCCA 504
•6 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGGARWAL v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 504 |
| Catchwords: MIGRATION – Review by Refugee Review Tribunal (RRT) – application for order dismissing application because it raises no arguable case for relief – whether there is no arguable case RRT misunderstood or misapplied the points system in relation to the applicant’s application for a Skilled (Residence) (Class VB) visa (Skilled Visa) – whether there is an arguable case RRT misunderstood Public Interest Criteria 4020(1) in relation to the applicant’s application for a Skilled Visa – no arguable case for relief raised – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.44.12(1)(a) Migration Act 1958 (Cth), s.97 Migration Regulations 1994 (Cth), Schedule 2, cl.885.221, 885.224 |
| Sharma & Ors v Minister for Immigration & Anor [2013] FCCA 1280 |
| Applicant: | NISHANT AGGARWAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1148 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 11 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 6 March 2015 |
REPRESENTATION
| Applicant in person assisted by an interpreter. |
| Solicitors for the Respondents: | Ms N Maddocks of DLA Piper Australia |
ORDERS
The application is dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The applicant pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1148 of 2014
| NISHANT AGGARWAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first respondent (Minister) moves for an order under r.44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) that the application commencing these proceedings be dismissed. By that application, the applicant seeks an order quashing a decision of the second respondent (Tribunal) that affirms the decision of a delegate of the Minister not to grant the applicant a Skilled (Residence) (Class VB) visa (Skilled Visa). The Minister submits the application does not raise an arguable case for the relief it seeks.
Whether the application for judicial review raises an arguable case for the relief it seeks requires me to set out in a little detail the applicant’s application for the Skilled Visa, and what occurred before the delegate and the Tribunal.
Criteria for the issue of skilled visa
On 11 August 2009 the applicant applied for the Skilled Visa. Clause 885.221 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), as it then applied, provided that, to obtain a Skilled Visa, the applicant had to satisfy that, at the time of decision, he had “the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act”. As was stated in the note to cl.885.221, “[t]hat Subdivision of the Act provides in sections 92 to 96 for the application of a points system, under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark”. As at the date of the Tribunal’s decision, the pass and pool mark for Skilled Visas was 120 points;[1] and the prescribed points, and the manner for their allocation, were provided for by Division 2.6 and Schedule 6B of the Regulations.
[1] Instrument IMMI 12/017
Another criterion for the grant of a Skilled Visa the applicant had to satisfy was that prescribed by cl.885.224 of Schedule 2 to the Regulations. The applicant had to satisfy Public Interest Criterion (PIC) 4020. PIC4020(1) provides that the Minister must be satisfied:
[t]here 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.
The expression “bogus document”, when used in relation to a person, is defined in s.97 of the Migration Act 1958 (Cth) to mean one of two things, one being a document the Minister reasonably suspects is a document that “purports to have been, but was not, issued in respect of the person”, or “was obtained because of a false or misleading statement, whether or not made knowingly”.
The Minister may waive this requirement of PIC4020 if the Minister is satisfied that “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”, justify the granting of the visa.[2]
[2] PIC4020(4)
Application by applicant for skilled visa
At the time the applicant applied for a Skilled Visa, the qualifying score the applicant had to satisfy was 120 points. Ten points were available to be allocated to the “Australian employment qualifications”. Relevant to these proceedings is the qualification specified in item 6B51 of Schedule 6B to the Regulations which provides that the “applicant has been employed in Australia, in the applicant’s nominated skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made”.
In his application for a Skilled Visa, the applicant claimed 10 points for “Australian work experience” which, I infer, was intended by him to refer to the “Australian employment qualifications” specified in item 6B51 of Schedule 6B to the Regulations. The basis of that claim was his statement that he had been employed in his nominated occupation for 12 months out of the 48 months immediately before the applicant lodged his application. The applicant stated he was employed by SriTaj Fine Indian Cuisine (SriTaj Restaurant) from 10 July 2008 to 10 July 2009, and described his duties as “Cooking Food According to the menu, apply OH&S techniques while on work etc.”.[3]
[3] CB12
In support of these statements the applicant provided to the Minister what purport to be two letters from SriTaj Restaurant. One is a letter dated 10 July 2009, apparently signed by a person named Muhammad Munir, whose title is “Head Chef”, that certifies the applicant “has been working as a cook in our Restaurant”, having joined the restaurant in July 2008.[4] The letter then sets out the duties the applicant performed and states that the applicant:[5]
cooks and prepares all the items on our menu (attached). He does his work efficiently, professionally and at a good pace keeping in mind the basic cooking principles and food safety methods. He is very good in workflow efficiency while keeping HACCP (Hazard Analysis & Critical Control Points) in mind.
He is reliable, enthusiastic, responsible worker. During his employment with the restaurant, he has proved himself as an efficient, skilled and a hard worker.
[4] CB24-25
[5] CB24
The second letter purports to offer the applicant “a job as a CHEF”. The letter sets out the applicant’s salary and other benefits.[6]
[6] CB26-27
By letter dated 31 October 2012 the delegate requested the applicant provide information, including evidence of the applicant’s “Australian Work Experience”.[7] The information the delegate requested included pay slips, superannuation statements, bank statements showing payment of salaries into personal bank accounts, tax assessments, and group certificates.
[7] CB56
The applicant responded with a letter dated 16 November 2012 from the applicant’s migration agent.[8] The agent attached to his letter the two letters from SriTaj Restaurant the applicant had previously provided to the delegate. The agent also attached, among other things, a notice of assessment issued by the Australian Taxation Office for the year ending 30 June 2009.[9] The agent did not submit pay slips, pay records, bank statements or superannuation statements.
[8] CB67
[9] CB75
On 19 November 2013 the delegate refused the applicant’s application for a Skilled Visa. The delegate refused the Skilled Visa in part because the delegate assigned no points to the Australian Employment Qualification. The delegate was not satisfied the applicant had been employed by SriTaj Restaurant as the applicant had claimed.
Before the Tribunal
By letter dated 10 January 2014 the Tribunal invited the applicant to appear before it on 19 February 2014 to give evidence and present arguments. On 12 February 2014 the Tribunal received the applicant’s agent’s submissions dated 4 February 2014.[10] With those submissions the applicant’s agent provided to the Tribunal, among other things, the two letters from SriTaj Restaurant the applicant had previously provided to the delegate, and the tax assessment the applicant’s agent had previously provided to the delegate. The agent also provided a pay-as-you-go payment summary for the applicant for the year ended 30 June 2009, and pay slips purportedly issued by SriTaj Restaurant in relation to the applicant.
[10] CB169
At the hearing before the Tribunal, the applicant claimed he had been employed at SriTaj Restaurant since 2007 in a volunteer capacity, but was then paid from July 2008 to September 2009. He claimed he worked 20 hours every week.[11] The applicant said the pay slips issued by SriTaj Restaurant showed the applicant worked 20 hours a week, even during a three week period when the applicant had gone to India, because the applicant’s employer told him that he would treat the applicant’s absence while in India as “normal” time because the applicant had not taken any annual leave. The applicant also said he did not provide the documents requested in the delegate’s letter of 31 October 2012 because he did not have an agent at the time, and he did not know he should provide them.[12]
[11] CB247, [18]
[12] CB247, [18]
By letter dated 26 February 2014 the Tribunal invited the applicant to comment on or respond to information set out in the letter.[13] The information the Tribunal identified included the following three items. One was the Department of Immigration and Citizenship (as the Department of Immigration and Border Protection was then known) (Department) having received an email on 12 November 2012 from a person who claimed was aware of the applicant’s circumstances stating that the applicant came to Australia on a student visa and later arranged false documents in relation to his work experience. The person stated the applicant paid $10,000 to buy false documents from SriTaj Restaurant. A second item of information was SriTaj Restaurant’s having previously been the subject of allegations regarding false work references. And a third item of information was Department records showing that the applicant had travelled to India between 30 April 2009 and 23 May 2009, yet the purported payslips from SriTaj Restaurant record the applicant was paid “Normal time” during that period.
[13] CB219-221
The applicant’s agent responded by letter dated 19 March 2014. [14] The agent provided statutory declarations from four persons, and provided each person’s mobile telephone number. One of the persons from whom a statutory declaration was provided was Muhammad Munir, being the person who apparently signed the letters from SriTaj Restaurant.[15] The applicant’s agent submitted the applicant has been the victim of a personal enemy. The agent also submitted a statutory declaration from a person who stated that he has employed the applicant since November 2009, initially as a cleaner but, after September 2010, as a site manager.[16] The agent also said that the applicant’s employer at SriTaj Restaurant confirmed he had inadvertently not paid the applicant’s superannuation contributions, but that these had now been paid. The agent said the employer “is willing to appear before tribunal if required”.
[14] CB224-225
[15] CB226
[16] CB227
Tribunal’s decision and reasoning
The first question the Tribunal considered was whether the applicant satisfied PIC4020(1). The Tribunal was not satisfied the applicant was employed by the SriTaj Restaurant, and considered that the applicant has given or caused to be given false and misleading information and bogus documents in the relation to the applicant’s Skilled Visa application.[17] The Tribunal relied on the following matters.
[17] CB249, [27]
First, the fortnightly pay slips the applicant presented to the Tribunal were “highly problematic”.[18] The applicant produced the documents in February 2014, even though the delegate had requested such documents on 31 October 2012.[19] Although the applicant travelled to India between 30 April 2009 and 23 May 2009, the pay slips record the applicant was working “normal time”,[20] and the pay slips, unusually in the Tribunal’s view, indicated the applicant worked exactly the same number of hours every week/fortnight for 52 weeks.[21] For these reasons, the Tribunal did not accept the pay slips the applicant provided to the Tribunal were genuine.[22] It found they had been manufactured after the delegate’s decision, and had been provided to the Tribunal to support the applicant’s claim he had been employed at the SriTaj Restaurant.[23]
[18] CB249, [28]
[19] CB249, [28]
[20] CB249, [29]
[21] CB249, [30]
[22] CB250, [31]
[23] CB250, [31]
Second, the documents in relation to superannuation contributions the applicant submitted to the Tribunal record the payment of superannuation into an account that was created in February 2014, some 5 years after the applicant claimed he was employed by SriTaj Restaurant.[24]
[24] CB250, [33]
Third, although the Tribunal noted the applicant said he was paid in cash, nevertheless the applicant did not provide documentation “in the form of contemporaneous documentation such as bank records, taxation documentation or other documentation from the employer which could definitively establish the applicant’s paid employment” at the SriTaj Restaurant.[25]
[25] CB250, [34]
The Tribunal referred to the Department’s files that indicated the SriTaj Restaurant had been the subject of allegations as a result of a number of skills assessments being provided by applicants.[26] It also referred to evidence that a person had provided information to the Department that the applicant paid the owner of the SriTaj Restaurant for documentation to support the applicant’s clamed employment at the restaurant.[27] The Tribunal considered, however, that “these factors would, on their own, be insufficient to establish that the applicant was not employed at the SriTaj Restaurant”.[28] Nevertheless, the Tribunal was satisfied, “having regard to the problematic nature of the evidence” it had considered, and because of the lack of any contemporaneous documents confirming the applicant’s employment, that the allegation “is consistent with other evidence which the Tribunal has referred to which raises serious doubts in relation to the applicant’s employment at the SriTaj Indian Restaurant”.[29]
[26] CB251, [35]
[27] CB251, [35]
[28] CB251, [35]
[29] CB251, [35]
The Tribunal was not satisfied the statutory declarations provided by the applicant’s friends and his employer overcame the problematic nature of the evidence.[30] The Tribunal also said it was prepared to accept the applicant’s submission that the applicant’s employer at SriTaj Restaurant was willing to give evidence to the Tribunal. The Tribunal, however, was not satisfied his evidence would be truthful and, for that reason, it was not satisfied there would be any utility in having another hearing or taking evidence from the employer or the other persons who had provided statutory declarations.[31]
[30] CB251, [36]
[31] CB251, [36]
On these matters, the Tribunal concluded as follows:[32]
Having regard to all of the evidence, the Tribunal is not satisfied that the applicant was employed in a paid capacity between 2008 and 2009 for the SriTaj . . . Fine Indian Cuisine Restaurant. The Tribunal is not satisfied that the pay statements provided to the Tribunal and the work references and job offer provided to the Department in relation to the applicant’s claimed employment at the SriTaj Indian Restaurant are genuine documents. The Tribunal instead reasonably suspects that they are bogus documents because they are counterfeit . . . The Tribunal also considers that the information on the application form in which the applicant stated that he was employed at the SriTaj Indian Restaurant from June 2008 to June 2009 is false or misleading in a material particular because it was given for the purpose of the applicant satisfying cl.885.221 in order to assist him to achieve the qualifying score for the grant of the visa. The Tribunal is satisfied that the evidence set out above establishes that there is evidence that the applicant has given or caused to be given a bogus document and false or misleading information in relation to a material particular to an officer or the Minister and the Migration Review Tribunal.
[32] CB251-252, [38]
The Tribunal next considered whether PIC4020 should be waived, but it was not satisfied it should be waived.[33] The Tribunal then concluded that, because it was not satisfied the applicant had been employed by the applicant’s employer at SriTaj Restaurant, the applicant was not entitled to the 10 points available for “Australian Employment Qualifications” and the applicant, therefore, could not meet the necessary qualifying score.[34]
[33] CB252-253, [41]-[45]
[34] CB253 - [46], [47]
The grounds of review
The application for review contains two grounds. These are:
1.Migration Review Tribunal did not follow cl 885.221 of schedule 2 to the regulation.
2.I am eligible for 10 points under cl 885.221 of schedule 2.
The second of these grounds does not raise any arguable case of jurisdictional error. The ground only expresses disagreement with the Tribunal’s decision, and seeks from the Court findings that are different from those made by the Tribunal.
The first ground, however, is different. Although unparticularised, the ground in effect claims, and I will interpret it as claiming, that the Tribunal did not correctly understand or apply cl.885.221 of Schedule 2 to the applicant’s claim for a Skilled Visa. At the hearing before me, the applicant, who is not legally represented, relied on written submissions and also made a number of oral submissions. I will identify each submission and consider whether it raises an arguable case that the Tribunal misunderstood or failed to correctly apply cl.885.221.
The applicant’s first written submission relates to the Tribunal’s reference to the email the Department received about the applicant’s having paid the owner of the SriTaj Restaurant for documents to support the applicant’s clamed employment at the restaurant.[35] The applicant submitted that a former friend sent the email by way of revenge on the applicant, and that there was no substance to the claim. The applicant submitted his former friend did not provide evidence the applicant paid $10,000 to his employer, or that the applicant was working elsewhere during the period he claimed he worked for SriTaj Restaurant. The applicant also appears to submit that the Tribunal failed to act on the applicant’s agent submission made in the agent’s letter dated 19 March 2014 that the Tribunal “use its powers and resources to verify the authenticity of the allegations levelled against the applicant”[36], and that the Tribunal should have checked the authenticity of the statutory declarations provided. Finally, the applicant had provided to the Tribunal documents to show he had been employed.
[35] Applicant’s written submissions filed 28 January 2015, page 3, paragraph 1
[36] CB225
This submission does not disclose any arguable case that the Tribunal misunderstood or misapplied cl.885.221. The Tribunal was under no obligation to exercise any power it had to verify the authenticity of allegations made against the applicant or the statutory declarations provided. Further, the applicant’s submissions go no further than expressing the applicant’s disagreement with the Tribunal’s not accepting the applicant’s evidence that he had been employed by SriTaj Restaurant as the applicant claimed.
The second written submission the applicant makes relates to the Tribunal’s reference to a discrepancy in the superannuation calculations in the pay statements.[37] The Tribunal noted that as at 7 December 2008 the applicant’s superannuation is recorded as being $554.40 but for the period from 7 December 2008 to 21 December 2008, the applicant’s superannuation is recorded as being $304.80.[38] The applicant submits that the miscalculation was not his error, but his employer’s, that the applicant’s employer at SriTaj Restaurant, Mr Muhammad Munir, had given a statutory declaration in which he said he was available to receive any enquiry “concerning this matter”, and that the applicant had provided proof of the payment of superannuation.[39]
[37] Applicant’s written submissions filed 28 January 2015, page 3, paragraph 2
[38] CB249, [29]
[39] Applicant’s written submissions filed 28 January 2015, pages 3-4
There is no arguable case that the Tribunal made any error by failing to make enquiries of Mr Munir; the Tribunal was not obliged to do so. Otherwise, the applicant’s second submission only expresses disagreement with the Tribunal’s assessment of the relevance and significance of what the Tribunal considered to be a discrepancy in the amounts paid for superannuation. It does not disclose any arguable case that the Tribunal misunderstood or misapplied cl.885.221.
The applicant’s third written submission relates to the Tribunal’s reference to SriTaj Restaurant having been the subject of allegations of providing false work references.[40] The applicant submitted he was unaware of the poor reputation of the SriTaj Restaurant, and that the owner had informed him that other staff that worked there were getting permanent residency.[41] Again, this submission goes no further than to express disagreement with what the applicant perceives to have been the Tribunal’s assessment of the significance of the information relating to the SriTaj Restaurant. That by itself does not disclose any arguable case that the Tribunal misunderstood or misapplied cl.885.221.
[40] Applicant’s written submissions filed 28 January 2015, page 3, paragraph 3
[41] Applicant’s written submissions filed 28 January 2015, page 4, first bullet point
The applicant’s fourth written submission relates to the Tribunal’s reference to the pay slips recording the applicant was paid during the period he was in India.[42] The applicant submitted that the amounts stated in the payslips represent annual leave payments.[43] Again, this submission expresses disagreement with what the applicant perceives to have been the Tribunal’s assessment of the significance of that information. It does not disclose any arguable case that the Tribunal misunderstood or misapplied cl.885.221.
[42] Applicant’s written submissions filed 28 January 2015, page 3, paragraph 4
[43] Applicant’s written submissions filed 28 January 2015, page 4, second bullet point
The applicant’s fifth and sixth written submissions relate to the Tribunal’s conclusion that the pay slips were not genuine and were manufactured, and to the Tribunal’s reference to the late payment of superannuation.[44] The applicant refers to Mr Munir, the claimed employer at the SriTaj Restaurant, having provided a statutory declaration that the applicant had worked at SriTaj Restaurant, and that he had provided to the Department Mr Munir’s contact number for any inquiries about the applicant’s pay slips.[45] There is no arguable case the Tribunal was obliged to make any inquiries of Mr Munir.
[44] Applicant’s written submissions filed 28 January 2015, page 3, paragraphs 5 and 6
[45] Applicant’s written submissions filed 28 January 2015, page 4, third bullet point
The applicant’s seventh written submission refers to the statutory declarations “from my friends to confirm my employment”. The applicant asks rhetorically how it could be that the Department and, I assume, the Tribunal do not accept the statutory declarations but accepts the word of the person who informed on him.[46] In effect, the applicant submits it was not open to the Tribunal not to accept the statements made in the statutory declarations. In my opinion, there is no arguable case it was not reasonably open to the Tribunal not to accept as true the statements made in the statutory declarations having regard to the matters the Tribunal assessed as supporting its conclusion that the SriTaj Restaurant did not employ the applicant.
[46] Applicant’s written submissions filed 28 January 2015, page 4, fourth bullet point
In addition to his written submissions, the applicant made a number of oral submissions at the hearing before me. First, the applicant took issue with paragraph 20 of the Minister’s written submissions, and in particular the submission the Minister there made that the “applicant did not in terms ask the MRT to take further oral evidence from witnesses but suggested one deponent of a statutory declaration was willing to provide evidence”. The applicant submitted this was incorrect. The applicant relied on his agent’s letter dated 19 March 2014 in which the applicant provided the names and contact numbers of friends who had given a statutory declaration confirming the applicant’s employment with SriTaj Restaurant, and in which the applicant’s agent noted that Mr Munir had confirmed the applicant’s claims by providing a statutory declaration, that Mr Munir confirmed he had inadvertently failed to pay the superannuation contributions, but had now paid them, and that he was willing to appear before the Tribunal if required.[47]
[47] CB224-225
The applicant’s agent’s letter did not in terms request the Tribunal to take oral evidence from Mr Munir or from the applicant’s friends who made statutory declarations; the letter only stated Mr Munir was willing to appear before the Tribunal. There is no arguable case, however, that the Tribunal was obliged to obtain oral evidence from Mr Munir or from the applicant’s friends.
The second oral submission the applicant made is that the Tribunal did not investigate whether the letters from SriTaj Restaurant were in fact fake. [48] If the applicant intended to submit that the Tribunal was required to undertake investigations concerning the authenticity of the documents, the submission cannot be accepted. There is no arguable case the Tribunal was obliged to undertake any such investigation. The Tribunal’s obligation was to determine whether it was satisfied there was no evidence that the letters were not bogus documents and did not contain information that was false or misleading in a material particular in relation to the applicant’s application for a Skilled Visa.
[48] The documents whose authenticity the applicant submitted the Tribunal did not investigate are at CB176-183
The third oral submission the applicant made is that his agent did not in his agent’s letter of 16 November 2012 provide the payslips and other documents requested by the delegate’s letter dated 31 October 2012 because the applicant’s agent advised the applicant that he should hold the documents for now because “we do not need these payslips at the moment”. Even if this is true, there is no arguable case of jurisdictional error by the Tribunal. The applicant acknowledged before me that he did not inform the Tribunal that the reason the applicant did not provide the payslips and other documents in relation to his employment requested by the delegate was because his agent advised him he need not do so “at the moment”.
In any event, the applicant’s assertion is implausible; it is also inconsistent with the evidence that is before me. First, in his agent’s submission dated 4 February 2014, the agent responded to that part of the delegate’s decision that noted the absence of “pay slips, pay records, bank statements showing bank transfers from your employer and superannuation statements”.[49] The agent responded as follows:
It is noted that it may not be necessary to provide all documents to support the applicant claims. The checklist provides as a guide to the applicant as to the nature of the documents that can be provided to support the applicant claims and does not in particular indicate to provide all the documents.
[49] CB170
The letter says nothing about the applicant’s having been previously advised by the applicant’s migration agent that it was not necessary to provide payslips and other documents the applicant claims he was advised to hold back.
Second, the Tribunal’s reasons record the following:[50]
When asked why he had not provided the pay statements to the Department as requested, the applicant stated that he did not have an agent at that time and he did not know he should provide them.
[50] CB247, [18]
Even if, therefore, the applicant had given sworn testimony before me to the effect that his agent advised the applicant that he should hold back the payslips and other documents for now because “we do not need these payslips at the moment”, I would not have accepted it.
The applicant’s final oral submission relates to the Tribunal’s making its decision on 26 March 2014, only five days after the Tribunal received on 21 March 2014 the applicant’s agent’s letter dated 19 March 2014 responding to the Tribunal’s letter dated 26 February 2014. The applicant submits this indicates the Tribunal’s mind was closed to deciding the case other than against the applicant.
There is no arguable case for this claim. The applicant does not contend the Tribunal did not consider the matters contained in the applicant’s agent’s letter of 19 March 2014. The Tribunal considered those matters. It is not arguable that the Tribunal’s deciding the applicant’s case within five days of its receiving the applicant’s agent’s letter by itself manifests bias or gives rise to a reasonable apprehension of bias.
PIC4020(1)
The applicant has not included in his application a ground to the effect, and has otherwise not submitted, that the Tribunal did not understand or correctly apply the criterion PIC4020(1). Nevertheless, I propose to consider whether there is any arguable case for contending the Tribunal did not correctly understand or apply that criterion.
PIC4020(1) - principles
Relevantly to the case before me, the matter about which a decision-maker must be satisfied under PIC4020(1) is the non-existence of something, namely, “evidence… that the applicant has given, or caused to be given . . . a bogus document or information that is false or misleading in a material particular in relation to” the “application for the visa”. For ease of exposition, I will describe that which, relevantly to the case before me, PIC4020(1) requires the decision-maker to be satisfied does not exist simply as “prescribed evidence”.
As a practical matter, a decision-maker can engage in the intellectual process of considering whether prescribed evidence does not exist only where the decision-maker is made aware of material the decision maker is of the view could conceivably constitute prescribed evidence. The only material that a decision-maker can legitimately consider to be prescribed evidence is material that it is reasonably open to the decision-maker to conclude is sufficiently probative to lead to the conclusion that a document given in connection with an application for a visa is a bogus document, or that information that is given in connection with an application for a visa was false or misleading in a material particular.[51] If the material the decision-maker is of the view is prescribed evidence and is not of this character, it would not be open to a decision-maker to find that an applicant does not satisfy PIC4020(1). If, on the other hand, it is reasonably open to the decision-maker to conclude that the material is sufficiently probative to lead to the conclusion that a document given in connection with an application for a visa is a bogus document, or that information that is given in connection with an application for a visa was false or misleading in a material particular, PIC4020(1) will be satisfied only if the decision-maker is in fact satisfied the material is not of this character.
[51] Sharma & Ors v Minister for Immigration & Anor [2013] FCCA 1280 at [33]-[40]
On this analysis, the questions a decision-maker must consider when determining whether PIC4020(1) is satisfied are: is there material that may be sufficiently probative to lead me to conclude that a document given in connection with an application for a visa is a bogus document, or that information that is given in connection with an application for a visa was false or misleading in a material particular? If so, am I satisfied the material is not in fact sufficiently probative to lead me to conclude that a document given in connection with an application for a visa is a bogus document, or that information that is given in connection with an application for a visa was false or misleading in a material particular? If that question is answered in the affirmative, a visa applicant will satisfy PIC4020(1).
The Tribunal in the case before me did not approach PIC4020(1) in this way. Instead, the Tribunal applied PIC4020(1) by considering whether certain documents on which the applicant relied were bogus, and whether certain information contained in those documents was misleading or deceptive in a material particular. The Tribunal was satisfied that the applicant gave documents that were bogus, and provided information that was false or misleading in a material particular. This does not mean, however, there is an arguable case for relief. By finding that the applicant had given a bogus document and had provided false or misleading information, it necessarily follows that the Tribunal was not satisfied there was no evidence that the applicant had given a bogus document or had provided false or misleading information.
Conclusion and disposition
There is no arguable case for the relief the applicant seeks in his application for judicial review. I propose, therefore, to order that the application be dismissed, and that the applicant pay the Minister’s costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 6 March 2015
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