Ali v Minister for Immigration

[2015] FCCA 3204

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALI v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3204

Catchwords:
MIGRATION – Application for judicial review – bogus document in support of application for Skilled Visa application – findings open to Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42

Applicant: LIAQAT-ALI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2449 of 2014

Judgment of: Judge McGuire

Hearing date: 2 December 2015

Date of Last Submission: 2 December 2015

Delivered at: Melbourne

Delivered on: 21 December 2015

REPRESENTATION

Solicitor for the Applicant: Self Represented

Counsel for the Respondent: Mr O Young

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The name of the second respondent be amended to read “Administrative Appeals Tribunal”.

2. The Application filed on 3 December 2014 be dismissed.

3. The Applicant pay the First Respondent’s costs set in a quantum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2449 of 2014

LIAQAT-ALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review filed 3 December 2014 in respect of a decision of the Migration Review Tribunal (as it then was) (“the Tribunal”) made 7 November 2014 affirming a decision of the Minister’s delegate not to grant the applicant a subclass 485 visa (“the visa”). 

2. The applicant appeared before this Court in person but with the assistance of an interpreter.  He had not complied with the Registrar’s directions for the filing of written submissions.  The applicant did not provide any substantial oral submissions.

3. The grounds of the application essentially offer only a narrative of the applicant’s personal history and of procedural history.  Included in that narrative is the statement:

   I am not satisfied with MRT Decision on my Application.  Therefore i want to appeal against the decision in the Court.  I believe there is an error in decision made by MRT.

4. No alleged error is particularised in the application.  As mentioned above, no written submissions were received in support of the application and no substantial oral submissions were offered in Court. 

Background

1. The applicant is from India.  He applied for a visa on 10 November 2009.  It is a requirement for the granting of a Skilled Visa that an applicant nominate an occupation and provide evidence of a Skills Assessment for that occupation. The applicant nominated his occupation as “cook” and deposed that his skills have been assessed by Trades Recognition Australia (“TRA”) and that he had received the skills assessment on 23 July 2009 offering a reference number, TRA09/123246357.

2. The applicant received assistance from a Migration Agent who provided a letter from TRA dated 23 July 2009 to the Department with a different reference number being TRA08/062209744 and asserting that the applicant had completed at least 900 hours of directly related work experience. The letter of reference was from Diors Restaurant Lounge-Café (“Diors”). 

3. On 16 May 2011, the Department wrote to the applicant inviting his comment on information received that gave reason for it to believe that the applicant did not satisfy Public Interest Criterion (PIC) 4020(1) in Schedule 4 of the Migration Regulations 1994 (“the Regulations”). That criterion sets out:

   (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.

4. The Department advised that investigations revealed information to the effect that the employment reference was false or misleading.  On 13 June 2011 the applicant’s agent responded to the Department’s letter with a statutory declaration from the applicant made 15 June 2010 stating that he had worked 900 hours of voluntary work at Diors but was unable to contact his previous manager or former workmates for verification.

5. On 23 January 2012 the Department again wrote to the applicant inviting comment on information relevant to PIC 4020(1).  That information was that an individual had pleaded guilty to the manufacture and sale of work references and that the work reference provided on behalf of the applicant to TRA was similar to those of the guilty individual.  The Department stated that it had reason to believe that the skills assessment had therefore been fraudulently obtained. 

6. The Department wrote, yet again, on 3 August 2012 to the applicant inviting his comment on evidence that he had provided, or caused to be provided a bogus document or false or misleading information.  That letter attached documents in respect of the individual who had pleaded guilty and evidence that implicated the applicant directly with that individual.

7. On 16 August 2012 the applicant’s agent provided written submissions to the Department highlighting the delay since the applicant’s work experience and asserting that the Department’s position was “highly unfair” to the applicant. 

8. The Minister’s delegate refused the application on 24 October 2012 with a finding that the applicant’s Skills Assessment was a bogus document and found no basis upon which to waive the requirement in PIC 4020(1).  The delegate noted and gave weight to the fact that information relating to the applicant and his application was recovered under warrant issued against the individual who had pleaded guilty. 

9. The applicant applied to the Tribunal for a merits review on 12 November 2012.

10. On 6 June 2014 the Tribunal wrote to the applicant pursuant to s.359A of the Migration Act 1958 (“the Act”) inviting him to comment on the potentially adverse information which was before the Minister’s delegate.

11. On 2 July 2014 the applicant responded to the Tribunal’s invitation repeating his submissions to the Department and asserting that he did not know the guilty individual.

12. On 20 October 2014 the Tribunal wrote, yet again, to the applicant pursuant to s.359 inviting comment. The applicant was also invited, pursuant to s.359(2) of the Act, to provide information supporting any compelling or compassionate circumstances for the waiver of PIC 4020. There was no response from the applicant.

Tribunal’s Decision

1. The applicant did not attend the Tribunal hearing and given his failure to respond to the Tribunal’s invitation for comment and response, the Tribunal proceeded on the basis of the applicant having lost his right to a hearing.[1]

   [1] Migration Act 1958 (Cth) ss.59C(1), (2), 360(3) and 363A

2. The Tribunal affirmed the decision of the Minister’s delegate. The Tribunal rejected the argument that TRA was not a relevant assessing authority at the relevant time and at [36] of its reasons state:

   Consequently, the Tribunal does not accept the submissions regarding the status of Trades Recognition Australia at the time of its decision, the principle of “double jeopardy”, in relation to the application of public interest criterion 4020 and clause 485.224 to the applicant.

3. The Tribunal noted that the guilty individual had made clear admissions as to his own fraudulent conduct and in doing so identified a range of employers who had participated in the production and distribution of false work references, including Diors Restaurant. The Tribunal noted at [68] of its reasons that the applicant himself was listed in documentary evidence provided in the County Court proceedings against the guilty individual. Significantly, the applicant had not responded to a request for comment or response in respect of that material.  The Tribunal also considered contextual evidence in respect of the guilty individual and the applicant’s skills assessment.

4. At [76] the Tribunal found that there was probative evidence that gives rise to a reasonable suspicion that the skills assessment issued to the applicant was a “bogus document” as defined in s.97(c) of the Act.

5. At [82] the Tribunal noted:

   More recently, on appeal the Federal Court in Trivedi’s case[2] held that while public interest criterion 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposefully untrue in order for Public Interest Criterion 4020 to be engaged.  However, the Court also held that an element of fraud or deception is necessary in order to attract the operation of Public Interest Criterion 4020.  In other words, the Court considered that there must be some element of knowledge or intention on somebody’s part because Public Interest Criterion 4020 is directed to information or documents which are purposefully untrue, and not to innocent, unintended or accidental matters. 

   [2] Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42

6. In this respect, the Tribunal noted the evidence regarding the guilty individuals’ criminal conviction and the handwritten note relating to the applicant found in the guilty individuals’ possession and relied on it in his prosecution.  The Tribunal then moved to find an element of fraud or deception (if not necessarily in the applicant). 

7. At [88] the Tribunal’s findings are set out as:

   As a result, the Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an office of the Department, the Tribunal or a relevant assessing authority a “bogus document” in relation to his application for a Skilled (Provisional) (Class VC) visa. 

8. The Tribunal considered whether there were compelling or compassionate circumstances to waive the requirements of the PIC 4020.[3] In this respect, the Tribunal took into account the submissions on behalf of the applicant as to the delay and his inability to obtain corroborative evidence from former workmates.  At [105] the Tribunal states:

   In addition, the Tribunal has also taken into account the submissions that have been made that the applicant completed voluntary and unpaid work experience more than five years ago, and that he has been unable since to reach his former employer or workmates to verify this.  Nevertheless, the applicant has not provided any evidence or submissions in response to the Tribunal subsection 359(2) invitation to provide information that it would demonstrate that he meets the requirements of subclause 4020(4) at the time of the decision. 

   [3] Migration Review Tribunal Reasons, 7 November 2014, at [90].

9. The Tribunal was not satisfied that the applicant’s submissions constituted compelling circumstances. 

10. At [112] the Tribunal considered whether any compassionate circumstances had been raised to the requisite degree.  It considered the applicant’s personal circumstances and any impact on his extended family if the visa was refused. 

11. At [113] the Tribunal observed:

    …that paragraph 4020(4)(b) does not grant it any discretion to focus on circumstances that might affect the interests of an applicant in Australia, or members of their immediate or extended family, either in Australia or overseas, where those members are not Australian citizens, Australian permanent residents, or eligible New Zealand citizens.  The Tribunal acknowledges that the applicant may well have concerns for his future.  However, based on the limited evidence before it, the Tribunal is not satisfied that it establishes that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident or eligible New Zealand citizen. 

12. At [120] the Tribunal concluded that the applicant did not meet the requirements of subclause 485.224(a) and clause 485.224 at the time of the decision and that the visa application should, therefore, fail. 

Application to this Court

1. The applicant does not particularise any alleged error in the Tribunal’s decision.  It is trite to note that it is the role of this Court to provide a further forum for merits review. 

2. Whilst none is particularised, my reading of the Tribunal’s reasons does not disclose any error in its process or reasoning and it is apparent that the Tribunal’s findings were open to it.  The Tribunal’s reasons are comprehensive and appropriately reference the relevant authorities.

3. The applicant does not argue, even in broader or generic terms, that he was refused any right to attend the hearing before the Tribunal. In any event, it is clear that the Tribunal acted appropriately within the provisions of the Act in proceeding to the hearing.

Conclusion

1. I find no merit in the application and I will therefore dismiss the application with costs. 

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  21 December 2015