Ali v Minister for Immigration and Border Protection
[2016] FCA 467
•5 May 2016
FEDERAL COURT OF AUSTRALIA
Ali v Minister for Immigration and Border Protection [2016] FCA 467
Appeal from: Ali v Minister for Immigration & Anor [2015] FCCA 3204 File number(s): VID 37 of 2016 Judge(s): BUCHANAN J Date of judgment: 5 May 2016 Legislation: Federal Court Rules 2011 (Cth), r 36.75
Migration Act 1958 (Cth), s 97
Migration Regulations 1994 (Cth), Sch 2 cll 485.221, 485.224, Sch 4 cl 4020
Cases cited: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413
M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333
Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498
Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169
Date of hearing: 4 May 2016 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 31 Counsel for the Appellant: The appellant did not appear Solicitor for the First Respondent: Ms C Tipene of Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
VID 37 of 2016 BETWEEN: LIAQAT-ALI
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BUCHANAN J
DATE OF ORDER:
4 MAY 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BUCHANAN J:
At the conclusion of the hearing of this appeal, I ordered that it be dismissed with costs. What follows are my reasons for making that order.
The appellant in this matter (a citizen of India) applied for a Skilled (Provisional) (Class VC) (subclass 485) visa on 10 November 2009. A decision on the application was not made until 24 October 2012. By that time it was a requirement for the grant of a visa (i.e. at the time of a decision on the application) that the application satisfy PIC (public interest criterion) 4020 stated by the Migration Regulations 1994 (Cth), including the stipulation that the applicant not submit a “bogus document” in relation to the application.
The requirement may be waived in some limited circumstances, but they are not relevant to the present case.
The delegate of the Minister who refused the application for a visa was satisfied that a skills assessment of the appellant as a cook by Trades Recognition Australia was a bogus document because it was obtained based on false or misleading information (Migration Act 1958 (Cth), s 97).
It appears, in any event, that Trades Recognition Australia, on 30 August 2010, revoked the skills assessment it had issued to the appellant and, on 7 April 2011, advised the Minister’s Department that the appellant did not hold a valid skills assessment.
After refusal of the visa by the delegate, the appellant applied for review of the delegate’s decision to the Migration Review Tribunal (“the MRT”).
The application to the MRT was made on 12 November 2012. Some further time elapsed. On 6 June 2014, the MRT wrote to the appellant and invited him specifically to comment on the following:
Ÿan employment reference issued to you by Diors Restaurant was fraudulently produced or procured
Ÿthe employment reference was provided by you or on your behalf to Trades Recognition Australia to obtain a positive skills assessment in your nominated occupation
ŸCarmine Amarante (“Amarante”) has pleaded guilty in criminal proceedings in Victoria to the manufacture and sale of work references matching the employment reference submitted to TRA to obtain your skills assessment
ŸAmarante has admitted that the work references were fraudulent in content and that they were created to assist clients to apply for permanent residence in Australia
In addition, the appellant was invited to provide:
ŸEvidence that as at the date on which you made your visa application you had applied for an assessment of your skills for your nominated skilled occupation by a relevant assessing authority and, further, that your skills for that occupation have been assessed by the relevant assessing authority as suitable for that occupation.
On 20 October 2014, the MRT wrote again about the same matter, this time giving considerable detail about Mr Amarante’s admissions. One of the 40 or so employers named by Mr Amarante as participating in a scheme of fraudulent work references was “Diors Restaurant Lounge Café” (where the appellant had claimed to have worked as a volunteer for more than a required 900 hours) and one of the persons named by Mr Amarante was “Angelo TORASIO [sic: Torcasio] from Diors Restaurant Lounge Café”, who had signed the particular work reference supplied by the appellant to Trades Recognition Australia when he sought, and obtained, a favourable skills assessment. In addition, a handwritten note with the appellant’s details had been found in Mr Amarante’s possession.
The appellant was told why the material held by the MRT might cause it to conclude that the requirements of PIC 4020 were not met. The appellant was also told that a failure to respond might lead to a decision on the available material and that he would lose his right to an oral hearing. The appellant was given two weeks (until 3 November 2014) to respond or seek further time in which to respond.
On 7 November 2014, the MRT made a decision affirming the decision of the delegate. It referred to the invitations to the appellant to comment. It referred to a response to the first invitation (which disclaimed any knowledge of Mr Amarante and relied again on the work reference from Mr Torcasio), noted there had been no response to the second invitation and recorded that the appellant had forfeited his right to appear before the MRT (see also Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413).
Then, the MRT went on in a comprehensive discussion to explain why, having regard to the material in its possession, it had concluded that the skills assessment initially provided to the appellant by Trades Recognition Australia was a bogus document. In its discussion, the MRT made a careful assessment of the probative value of different aspects of the material before it. The assessment of those matters by the MRT is not open to challenge unless it committed some form of jurisdictional error.
The MRT went on to find that there were no apparent bases upon which it might waive the requirements of PIC 4020 in the appellant’s case.
The appellant then made an application for judicial review to the Federal Circuit Court of Australia (“the FCCA”). The grounds of the application were:
I applied for skilled (Provisional) (Class VC) visa on 10 November 2009
My Skilled Assessment was approved by TRA. on 23 July 2009. I provided all the documents related to my voluntier work experience to the TRA.
I worked at DIORS Restaurent as a Cook for more than 900 hours. In 2008/09. My work experience was genuine. and I don’t have any Connection with MR. A’
The Department refused my visa on an assumption that my work experience matches with the format normaly used by MR ‘A’. I was not happy with the decision and applied MRT in November 2012. MRT affirmed the decision stating that I don’t have sufficient prove for my application
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
An application based on grounds stated in this fashion invited rejection. Those grounds do not identify an arguable error of jurisdiction.
The appellant filed no written submission in the FCCA and made no substantial oral submission. Having set out the background, the FCCA observed:
Application to this Court
29.The applicant does not particularise any alleged error in the Tribunal’s decision. It is trite to note that it is [sic: not] the role of this Court to provide a further forum for merits review.
30.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.
31.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
32.I find no merit in the application and I will therefore dismiss the application with costs.
With respect, in the circumstances that outcome was inevitable.
Nevertheless, the appellant has now appealed to this Court. The first problem an appeal to this Court faces is that, apart from the underlying need to focus on whether the MRT made a jurisdictional error, the appellant must also show, in some fashion or another, that an appealable error was made by the FCCA. An appeal to this Court is not given just to permit a further opportunity of review, in the absence of demonstrated error.
The grounds of the appeal to this Court are expressed as follows:
1.That the Judge erred in dismissing the appellants review application by relying on the evidence of Mr Carmine Amarante (Mr A) without considering the applicant’s evidence.
2.That the Judge erred in not considering that the applicant did complete his 900 hours of experience and his skills assessment was approved by TRA on 23 July 2009.
3.That the Judge erred in not considering that the employment reference was issued to the applicant by Diors Restaurant and not by Mr A.
4.That the Judge failed to consider that each case has its own facts and merits and ought to be considered separately and not as a group.
5.That the Judge erred in dismissing the review without putting the evidence of Mr A to the applicant which resulted in miscarriage of justice.
6.That the Judge erred in dismissing the appellants’ application filed on 3 December 2014 without considering that fact that PIC 4020 was invoked arbitrarily without any basis in law and fact.
7.The Judge erred in not considering that findings of fraud and deception is necessary to attract PIC4020 pursuant to the case of Trivedi v Minister for Immigration and Border [2014]FCAFC 42
8.The appellants’ application dated 3 December 2014 clearly raises an arguable case in so far as PIC4020.
9.That the Judge erred in dismissing the review and not according substantial justice to the applicants.
Those grounds really deserve no attention in their own right. They misstate the position in numerous ways, they identify no arguable error by the FCCA and no possible jurisdictional error by the MRT.
As in the FCCA, the appellant did not observe the direction that he file a written submission to state his arguments in support of the appeal.
When the appeal was called for hearing, the appellant did not appear. I was informed by the Minister’s solicitor that the appellant had been reminded of the hearing in a letter accompanying service of the written submissions for the Minister and that no contact had been made by the appellant with the Minister’s solicitors to suggest he might not appear. The hearing of the appeal was stood down until later in the morning but still the appellant did not appear.
One possibility which arose from the non-appearance of the appellant was that the appeal might be dismissed for his non-attendance under r 36.75 of the Federal Court Rules 2011 (Cth). That would leave it open to the appellant to make a later application to reinstate his appeal on the basis that no attention had been given to the substance of the appeal.
For the reasons which follow, I decided that such a course should not be taken and that I should deal with the substance of the appeal on a final basis on the material which I have. It remains open to the appellant to apply to set aside the order which I made (r 36.75(2)) but at least the reasons for the order, and the view I take of the merits of the appeal, will be clearly disclosed.
In view of the lack of any contribution by the appellant, written or oral, I must do the best I can from my own study of the material, although the submissions for the Minister made a helpful attempt to make sense of the grounds of appeal and invest them with some substance.
Like the FCCA, I see no apparent error in the approach taken or conclusions reached by the MRT. I see no error in the approach taken or the conclusions reached by the FCCA.
On the material which I have, the appeal to this Court seems to me to have been a futility. The decision of the MRT carefully explains the basis for its conclusion that the skills assessment initially provided by Trades Recognition Australia was based on false or misleading information. It would not matter if the appellant was not conscious of that circumstance (Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169). A challenge to the conclusion of the MRT, based on the evidence before it, does not suggest any jurisdictional error.
Furthermore, at the time of the delegate’s decision and thereafter, it seems clear that the appellant had not met the requirements for a visa, quite apart from the operation of PIC 4020. He did not, at the time of the delegate’s decision, hold a relevant skills assessment (Migration Regulations, Sch 2 cl 485.221(1), as at 12 October 2012). At the time of the MRT decision there had been some changes in the specification of visa requirements but, at that date also, the appellant did not hold the necessary skills assessment (Migration Regulations, Sch 2 cl 485.224(1), as at 6 October 2014).
Moreover, although refusal of a visa based on PIC 4020 carries the consequence that no further visa application might be made for three years, that time has passed (c.f. Migration Regulations, Sch 4 cl 4020(2)).
In the circumstances, I can see no utility at all in refraining from dealing with the present appeal on a final basis. As I have said, it seems to me to have been a futility from the outset.
The appeal was therefore dismissed with costs at the conclusion of the hearing.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate:
Dated: 5 May 2016
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