Ashraf v Minister for Immigration
[2017] FCCA 373
•3 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASHRAF v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 373 |
| Catchwords: MIGRATION – Requirement for the Tribunal to make its own enquiries – bogus documents – merits review. |
| Legislation: Migration Act 1958 (Cth), ss.97C, 359, 359A |
| Cases cited: Palikhe v Minister for Immigration and Border Protection [2014] FCCA 1875 |
| Applicant: | MUHAMMAD FARHAN ASHRAF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1656 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 14 February 2017 |
| Date of Last Submission: | 14 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 3 March 2017 |
REPRESENTATION
| Applicant in person |
| Counsel for the Respondents: | Ms Lucas |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed on 20 July 2015 be dismissed; and
The Applicant pay the Respondent’s costs fixed in the sum of $6,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1656 of 2015
| MUHAMMAD FARHAN ASHRAF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Nature of Application
By an application filed on 20 July 2015, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 19 June 2015. By that decision, the Tribunal affirmed a decision of a delegate of the Minister to refuse the Applicant a Skilled Graduate (temporary) Class VC, subclass 485 visa (‘the visa’). Leave was granted to the Applicant to file and serve any amended application by orders made by Registrar Ryan on 9 December 2015. The Applicant has not filed and served any amended application, although he did file and serve an affidavit sworn 10 January 2017 setting out further grounds of his application. The matters raised by the Applicant in his affidavit and by oral submissions are set out in [16] herein.
The grounds stated in the application were that
i)the decision of the Tribunal was affected by jurisdictional error; and
ii)the Tribunal misapplied the relevant law in considering whether there was any evidence that the TRA skills assessment document was bogus.
Relevant background
The Applicant is a national of Pakistan and on 4 May 2009 he applied for the visa.[1] The application for the visa included a statement that the Applicant had a suitable skills assessment from Trades Recognition Australia (TRA) for the nominated occupation of cook.
[1] Court book 9-18.
By letters dated 24 January 2012 and 16 January 2013, the Department invited the Applicant to comment on information which suggested he may not meet the Public Interest Criterion 4020 (‘PIC 4020’). The letters included information that Mr A had pleaded guilty to the manufacture and sale of false work references matching the one that the Applicant had provided to the TRA. Those false work references were signed by a Ms S of the restaurant where the Applicant was said to have worked. At an interview with the Department, Ms S denied that she had signed the Applicant’s work experience reference.
The Tribunal had before it an agreed summary of material facts in the trial of Mr A. The material discloses a well-organised criminal enterprise around the creation of false documents to be used by visa applicants. There was evidence from the execution of a warrant at Mr A’s premises that there was a work reference letter in the name of the Applicant.[2]
[2] Court book 53-58, 68-73.
On 24 March 2012, the Applicant, by his solicitors, responded to the invitation to comment dated 24 January 2012, but did not respond to a further invitation to comment dated 16 January 2013.
On 21 February 2013, a delegate of the Minister refused to grant the visa, having found that the TRA skills assessment reference submitted by the applicant to the Department was a bogus document, as then defined in section 97C of the Migration Act 1958 (Cth) (‘the Act’). The delegate was not satisfied that PIC 4020 should be waived.
On 10 March 2013, the Applicant applied to the Tribunal for review of the delegate’s decision.
On 24 June 2014, the Tribunal wrote to the Applicant pursuant to s.359A and s.359(2) of the Act, inviting him to comment or to respond to information.
On 5 September 2014 the Tribunal received legal submissions from the Applicant’s then solicitors, but no substantive response to the allegations regarding the relevant document.[3]
[3] Court book 299-302.
On 22 October 2014, the Tribunal invited the Applicant to appear at a hearing scheduled for 14 November 2014. That hearing was rescheduled and the Applicant and his representative attended the hearing on 20 January 2015.
On 19 June 2015, the Tribunal made its decision.
Relevant legislation
In order for the Applicant to meet the requirements of PIC 4020, there must be:
(1)... 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.
Section 97C of the Act defined bogus document to mean:
[a] document that the Minister reasonably suspects is a document that was obtained because of a false or misleading statement, whether or not made knowingly.
The definition of bogus document is now found in s.5(1) of the Act in substantially with the same form. Section 5(1) of the Act applies to all undetermined applications from 18 April 2015.
The Applicant’s case before this Court
The Applicant, assisted by an interpreter, raised four principal concerns or grounds of review in relation to the decision of the Tribunal. These were:
i)the failure on the part of the Tribunal to forensically examine the document which was the basis of the reference in order to obtain the skills assessment and, in particular, a failure to forensically examine the signature of Ms S;
ii)the failure on the part of the Tribunal to engage in the proper legal appraisal of the evidence, in particular the finding that there was a link between Mr A and the Applicant said to be in error;[4]
iii)the reference by the Tribunal to the fact that the Applicant lived in Forest Hill and was travelling to Brunswick, where it was said that he was working as a cook in the relevant restaurant, was said by the Applicant to be irrelevant, and the Tribunal had thereby fallen into jurisdictional error by taking into account an irrelevant consideration;[5] and
iv)the reference to the Applicant’s family living in India (rather than Pakistan) was said by the Applicant to indicate a lack of proper attention to the detail of the case by the Tribunal, and evidence that the Tribunal was not taking the case seriously.[6]
[4] Tribunal decision [37]. .
[5] Tribunal decision [13].
[6] Tribunal decision [50], [52].
The Applicant also submitted that these errors provided evidence that the Tribunal had made its mind up in relation to the application. The matters raised by the Applicant were also raised in his affidavit of 10 January 2017.
Conclusion
In relation to the grounds raised by the Applicant as to the failure on the part of the Tribunal to forensically examine the signature of Ms S, the Tribunal dealt with that matter in its decision.[7] It made reference to the fact that the Applicant had asked the Tribunal to summons Ms S to attend, and the Tribunal described in its decision that it had tried to locate Ms S. The Tribunal states that on 23 January 2015, the Tribunal summonsed the Department for all relevant information and documents concerning the application.[8] However, none of the material indicated Ms S’s address or her signature. The Tribunal noted that in the absence of having an authenticated signature against which the signature on the document could be compared, there was little point in attempting to have the document forensically examined. The Tribunal had made an effort to obtain information in relation to Ms S and had been unsuccessful.
[7] Tribunal decision [22]-[24].
[8] Tribunal decision [22].
The Tribunal referred to the decision of Patel v Minister for Immigration and Border Protection [2015] FCAFC 22 (‘Patel’).[9] In my view, the approach of the Tribunal was correct. The correctness of its approach can be confirmed by having regard to paragraph [45] of the Patel decision, where the Full Court stated:
It is not every case in which there is a conflict in evidence that requires an independent decision-maker to undertake its own inquiries or secure the provision of further information which is not presently available to either the claimant or the government agency. Indeed, such cases it may be readily expected are the exception rather than the rule. Nor can a duty to secure further information be transferred by a claimant to an independent decision-maker simply by a claimant providing information that conflicts with the information available to a government agency. And that is the case even where a claimant has attempted, unsuccessfully, to obtain further information.
[9] Patel v Minister for Immigration and Border Protection [2015] FCAFC 22 [23].
At paragraph 46:
In all such cases the duty of the independent decision-maker is to undertake a review on such material as is available.
This is what the Migration Review Tribunal did in this case. It was required to do no more. The Tribunal had summonsed the Department, seeking documents. The statements made from the bar table by the Applicant that the Tribunal could have done more have little weight. There was nothing put as to how the Tribunal could have done more even in the event that it was required to. I am not satisfied that there is any error evident in the approach of the Tribunal as disclosed by paragraphs 22 to 24 of its decision.[10]
[10] Tribunal decision.
In respect of the ground that the Tribunal had applied the wrong legal test or approached the task of assessing the material before it using an incorrect test, the Tribunal considered submissions made on behalf of the applicant, in particular, submissions that:
a)the TRA was not, at the relevant time, the relevant assessing authority under the regulations;
b)the delegate was not authorised to use the information obtained under the search warrant;
c)that TRA had no power to revoke the Applicant’s skills assessment on the basis of the information obtained under the search warrant; and
d)the review application should be kept open until the determination of the appeal in the matter of Ankit Batra v Minister for Immigration and Border Protection by the High Court.[11]
[11] M29 of 2014, HCA.
The Tribunal considered the submissions made on behalf of the Applicant and held that the fact that the TRA was not, at the material time, specified as a relevant assessing authority was immaterial to the finding that the Applicant provided a bogus document. The Tribunal also found that applying a decision of Palikhe v Minister for Immigration and Border Protection [2014] FCCA 1875,[12] that the Tribunal is not prevented from using evidence obtained pursuant to a search warrant issued under s.3E of the Crimes Act.
[12] at [30]–[32] and [37]–[40].
The Tribunal considered the evidence before it. In particular, it was aware that the Applicant before the Tribunal had maintained that the work reference letter was genuine and that he had worked in excess of 900 hours.[13] He maintained that he had worked under the direct guidance of Ms S.[14]
[13] Tribunal decision [13]-[14].
[14] Tribunal decision [17].
However, the Tribunal did have before it evidence from Ms S in the form of a record of interview that she had conducted with the Department, which the Tribunal considered was clear and unequivocal, that although the Applicant had worked at the relevant restaurant, he had only worked there:
‘a couple of hundred hours’ not for the full 900 hours, and that she had not signed his work experience reference. [15]
[15] Tribunal decision [17].
In relation to the ground that the Tribunal had not analysed the evidence in relation to whether or not there was any association or connection between himself and Mr A, the Tribunal considered the evidence that there was a discovery of the Applicant’s work reference at Mr A’s premises, and considered that that provided a direct link between him as an individual and his work experience at the restaurant to the activities of Mr A.[16] That finding was open to the Tribunal on the material before it.
[16] Tribunal decision [37].
The Tribunal acknowledged that it would be difficult for the Applicant now to establish the full 900 hours of unpaid work over seven years ago, but considered that the evidence in relation to the criminal enterprise and the admissions made by Ms S that he did not do so, were compelling. The Tribunal held:
It is not satisfied that he completed over 900 hours of work experience at the restaurant on the basis only of his uncorroborated oral evidence, particularly against the backdrop of the information provided by Mr A clearly identifying the restaurant and Ms S as participants in the preparation and sale of fake work references to visa applicants and which, on the available evidence, included the applicant’s work experience reference. [17]
[17] Tribunal decision [38].
That finding was reasonably open to the Tribunal.
In relation to the ground that the Tribunal had fallen into error in making reference to the fact that the Applicant lived in Forest Hill and that the restaurant was at “significant distance from his home”, the Applicant contended that the distance between Forest Hill and Brunswick was not significant, and that the Tribunal was in error in making reference to that.
In my view, that matter in paragraph [13] of the Tribunal decision is not material to the overall finding that the work reference was a bogus document. It is simply one of the matters taken into consideration by the Tribunal, and one of the matters that it put to the Applicant in the course of the Tribunal hearing. Reference to that matter is simply a matter of a question of fact, which is disputed by the Applicant: that fact being as to whether Forest Hill is a significant distance from Brunswick for the purpose of work travel. No appealable error is discernible.
In relation to the mistaken reference by the Tribunal to the Applicant’s family in India,[18] in my view, whilst it is an error, that of itself does not establish that the Tribunal was not seriously considering the detail of the Applicant’s claims or the substance of the claim. The reference to India rather than Pakistan does not go to the finding in relation to the issue as to whether the document was a bogus document.
[18] Tribunal decision [50], [52].
The Tribunal considered whether there should be a waiver of the requirement of the PIC and held that there was little evidence that indicates that Australia would miss out on a significant business, economic, cultural or other benefit if he was not granted a subclass 485 visa.[19]
[19] Tribunal decision [51].
The Tribunal conducted a careful and detailed analysis of the material before it, and, in fact sought to satisfy the Applicant’s request that Ms S be located and summonsed before the Tribunal. Otherwise, it appears that the Applicant is seeking to engage, or inviting the Court to engage in merits review, which is impermissible.[20]
[20] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR at 272.
The decision of the Tribunal was reasonably open to it, and there was probative and compelling evidence that a bogus document had been provided by the Applicant in relation to the application for a visa. I am not satisfied that the decision of the Tribunal is affected by jurisdictional error.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 3 March 2017
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