ASHIQ v Minister for Immigration and Anor

[2018] FCCA 544

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHIQ v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 544

Catchwords:
MIGRATION – Student visa – eligibility – public interest criterion 4020 – applicant did not disclose military service – migration consultant completed form – knowledge of applicant not relevant.

Legislation:

Migration Act 1958 (Cth), s.65

Migration Regulations 1994 (Cth), Sch.4, cl.4020

Cases cited:

AIB16 v Minister for Immigration and Border Protection [2017] FCAFC 163

Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169

SZBEL v Minister for Immigration (2006) 228 CLR 152

Applicant: ADNAN ASHIQ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: DNG 29 of 2016

Judgment of: Judge Young

Hearing date: 10 April 2017

Date of Last Submission: 10 April 2017

Delivered at: Adelaide

Delivered on: 7 March 2018

REPRESENTATION

Counsel for the Applicant: Mr P Charman

Solicitors for the Applicant: MSP Legal

Counsel for the Respondents: Mr T Liveris

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application filed 21 September 2016 is dismissed.

2. The applicant is to pay the first respondent’s costs in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

DNG 29 of 2016

ADNAN ASHIQ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) made on 23 August 2016 affirming a decision of the Minister’s delegate to refuse to grant the applicant a student visa.

   Background

2. An applicant for a student visa was, relevantly, required to satisfy various public interest criteria (PIC), including PIC 4020 of Schedule 4 of the Migration Regulations 1994.

3. PIC 4020(1) required that:

   There be no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during 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; or

   (b) a visa that the applicant held in the period of 12 months before the application was made.

4. The applicant is a citizen of Pakistan. On 6 February 2012 he applied for a student visa. In the application form he was asked “Have you, or any member of your family unit included in this application, ever …served in a military force or state sponsored/private militia, undergone any military/paramilitary training, or been trained in weapons/explosives use (however described)?” The box for “No” was ticked. The applicant was subsequently granted a visa.

5. On 23 March 2015 he applied for another student visa. In the application form he was asked a similar question. He answered that he had undergone military service or training in Pakistan as an aviation cadet at the Pakistan Air Force Academy between 2008 and 2010.

6. On 24 June 2015, following a request from a departmental officer for more information, the applicant provided information indicating that his service at the Pakistan Air Force Academy had been terminated on disciplinary grounds.

7. On 15 July 2015 a departmental officer wrote an e-mail to the applicant asking for more information about the “circumstances of his termination”. It is apparent from the e-mail that the officer assumed that there had been some particular incident leading to the applicant’s termination.

8. No response was received from the applicant.

9. On 21 July 2015 a departmental officer wrote to the applicant by e-mail again inviting him to comment on adverse information that he had provided a bogus document or false or misleading information. He was given 28 days within which to comment.

10. The e-mail contained the following:

    In your previous student visa application, you indicated that you had never served in the Military Force of your country. Furthermore, you did not mention your time at the Pakistan Air Force Academy. As it has come to light that you were terminated from the Academy for disciplinary reasons, and that such circumstances are relevant in considering whether you meet the criteria for the grant of a visa, your omission is considered to be unfavourable to your current application as you provided misleading information for an application for a visa you held in the 12 months previous to your current visa application.

    You may provide comment on the information that is considered false or misleading or the document that is to be considered bogus …

11. No response was received to that e-mail.

12. On 1 March 2016 the Minister’s delegate concluded that the applicant did not satisfy the requirements for the grant of a visa because he did not satisfy PIC 4020.

13. The delegate’s reasons referred to the correspondence and the passage quoted. The delegate then said “Therefore, based on the evidence and information before me, I am not satisfied that you meet Public Interest Criterion (PIC) 4020, subclause 4020(1).”

14. On 14 March 2016 the applicant applied to the Tribunal for a review of the delegate’s decision. In August 2016 the applicant provided some documentation concerning the termination of his service at the Pakistan Air Force Academy. The applicant attended a hearing before the Tribunal on 17 August 2016.

15. The Tribunal affirmed the delegate’s decision on 23 August 2016. In the Tribunal’s statement of reasons it referred to the applicant’s explanation for the termination of his service as an air force cadet on disciplinary grounds. It accepted that there was no suggestion that the applicant had been found guilty of any offence or that he had been charged or brought before any kind of hearing. It appeared to accept the applicant’s explanation that his termination was the end result of a series of minor infractions of discipline such as lateness or non-attendance at classes.

16. In relation to this issue the Tribunal noted:

    … that while the Department’s correspondence with him had initially focused on the possibility that, in his current student visa application, he may have concealed the fact that he had been convicted of some kind of offence this was no longer an issue. The relevant question now was whether he had provided false or misleading information in his previous student visa application, lodged on 6 February 2012, by indicating “No” in response to the question [about military training].

17. The Tribunal accepted the applicant’s explanation that the arrangements to travel overseas had been made by his parents in Pakistan. He said his father had taken him to see an education consultant who filled out the necessary forms for the applicant to sign. The applicant said he did not read the forms before signing them. The Tribunal accepted that the applicant may not have been aware that the information in his first visa application was false or misleading when he signed the application form.

18. The Tribunal referred to Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169, FCAFC 42 as authority for the proposition that it was not necessary to conclude that the applicant was aware that the information was false, in the sense of purposefully untrue, in order for PIC 4020 to be engaged. The Tribunal noted, however, that according to Trivedi an element of fraud or deception by some person was necessary to attract the operation of the provision.

19. The Tribunal held that it was not satisfied that inadvertence, negligence or simple accident explained the inclusion of the untrue information in the applicant’s original visa application. Consequently, not being satisfied there was an innocent explanation for the inclusion of the untrue information, the Tribunal held that it was not satisfied that the information was not purposefully untrue, that is, false, when it was included in the form. The Tribunal found the information in the original visa application form was false or misleading, presumably, it said, because of the actions of the consultant in Pakistan.

    The grounds of review

20. The applicant’s grounds of review are discursive. The ground of review was difficult to identify in the particulars provided under Ground 1 in the application. For example, the applicant refers to a denial of procedural fairness in relation to a decision of a delegate that “never took place”. It is difficult to know what is meant by that. However, the applicant’s outline of submissions referred to the decision in SZBEL v Minister for Immigration (2006) 228 CLR 152 at [35] which contains the passage:

    But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issue is the delegate considers dispositive are “the issues arising in relation to the decision under review”.   

21. I will treat the ground of review as one of denial of procedural fairness on the alleged basis that the Tribunal, without notice to the applicant, relied on an issue other than one considered dispositive by the delegate.

22. The applicant’s outline of submissions makes the following assertions:

    5.5 The Decision of the Delegate to refuse the Visa on 1 March 2016 was solely in relation to the document provided by the Applicant on 24 June 2015 and his failure to explain why that document was not a bogus document.

    5.6 The Delegate and the Department at no time referred to the previous Application for a Student Visa lodged on 6 February 2012.

23. The assertion that the delegate did not refer to the original visa application is incorrect, as can be seen from the first two sentences of the e-mail of 21 July 2015 referred to by the delegate. A fair reading of the delegate’s reasons is that, while the delegate suspected that the applicant had committed some serious disciplinary offence at the Pakistan Air Force Academy, the “omission” referred to in that e-mail, and in the delegate’s reasons, was the applicant’s failure to mention his service at the Pakistan Air Force Academy in his original application. I consider that the dispositive issue, or an aspect of the dispositive issue, was the applicant’s failure to mention his military service in his original visa application. This was identified in the delegate’s reasons and the applicant was on notice that it was an issue arising in relation to the decision under review by the Tribunal.

24. The premise of this ground of review is not made out and the ground must fail.

25. The second ground of review asserted that the Tribunal applied the wrong test to determine whether it was satisfied there was no evidence that the applicant had given, or caused to be given, a bogus document or information that was false or misleading in relation to the application for the visa or a visa that the applicant held in the period of 12 months before the application was made.

26. The applicant submitted that the Tribunal misapplied the test set out by the Full Court of the Federal Court in Trivedi (relatively recently approved by a differently constituted Full Court in AIB16 v Minister for Immigration and Border Protection [2017] FCAFC 163). He accepted that there had to be an element of fraud or deception by some person to attract the operation of PIC 4020(1). However, he submitted that the Tribunal’s finding that PIC 4020(1) was engaged was not open to it because the Tribunal appeared to accept that:

    ·    the applicant’s parents made all the arrangements for his initial travel to Australia through an education consultant;

    ·    the applicant completed the form by signing it without reading it, given his age and his trust in his parents and the education consultant;

    ·    the misinformation in the first visa application would not have come to light if he had not honestly answered the question in the second application;

    ·    the applicant was shocked that it had not been declared in his first application;

    ·    the applicant may not have been aware the information in the first application was false or misleading;

27. The applicant’s implicit position was that it was therefore not open to the Tribunal to conclude other than that there was no evidence that the applicant had given, or caused to be given, a bogus document or information that was false or misleading in a material particular.

28. In Trivedi Buchanan J, with whom Allsop CJ and Rangiah J agreed, held that PIC 4020 was not directed to innocent, unintended or accidental matters but to information or documents that are false in the sense of purposefully untrue (at [32]). It is not necessary that the visa applicant know of or be directly involved in any falsehood (at [28]).

29. The points raised by the applicant go to this latter point. It is true that the Tribunal appeared to accept the applicant’s submissions on these matters. However, because it is not necessary that he be knowingly or directly involved the points raised are not determinative.

30. The Tribunal was not satisfied that the wrong information was the result of inadvertence, accident or negligence. The applicant told the Tribunal that after receiving the negative decision (presumably of the delegate) “he contacted the consultant who maintained that the application was correct because he had not had any military career” (Tribunal decision [16]). This does not suggest inadvertence, accident or negligence by the consultant. On the contrary, it suggests that the consultant was aware of the military service of the applicant but chose to interpret the question incorrectly and, in my opinion, unreasonably in a way that meant disclosure of the service would not occur. If so, this was not inadvertent or accidental but purposeful non-disclosure when disclosure was required, that is, purposefully untrue.

31. In my view, the Tribunal’s conclusion was open to it.

32. This ground is not made out.

33. The application is dismissed. The applicant is to pay the first respondent’s costs according to Schedule 1, Part 3, Division 1 of the Federal Circuit Court Rules 2001 in the sum of $7,206.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate: 

Date:  7 March 2018