Attri v Minister for Immigration
[2016] FCCA 839
•29 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATTRI v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 839 |
| Catchwords: MIGRATION – Review of a decision by the Migration Review Tribunal –Skilled (Provisional) (Class VC) visa – subclass 485 – false and misleading information provided of a TRA assessment – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 97, 97(c), 359A, 362(2)(b), 368(2A), 477 Migration Regulations 1994 (Cth), PIC 4020, cl. 485.224 |
| Kaur v Minister for Immigration and Border Protection [2014] FCA 281 Singh v Minister for Immigration & Anor [2012] FMCA 145 |
| Applicant: | VIKAS ATTRI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 328 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 29 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 29 March 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Counsel for the First Respondent: | Ms Helsdon |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The name of the Second Respondent be changed to the “Administrative Appeals Tribunal”.
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 328 of 2015
| VIKAS ATTRI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
The Applicant seeks judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) dated 29 January 2015. The Tribunal affirmed the decision of a delegate of the Minister not to grant the Applicant a Skilled (Provisional) (Class VC) visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’). These proceedings were commenced on 20 February 2015 and within the time prescribed by s.477 of the Act.
The Applicant sets out in his application the following grounds:-
“1. Public Interest Criteria (PIC) 4020 has been applied in my case in wrong and biased manner.
2. My genuine documents have been considered false without any ground and without any proof with the migration authorities.
3. I have complied with PIC 4020, along with other criteria required for grant of Skilled (Provisional) (Class VC) under s.65 of the Migration Act 1958. Even then my visa has been refused.
4. I am being punished for someone else’s misdeeds. My case has nothing to do with Mr Carmine Amarante. I have never approached him.
5. The Migration Tribunal has not conducted my case in a fair and just manner. I was called for personal hearing on 28th January, 2015 just to complete the formality, as my submissions were neither given any weightage nor recorded in a fair manner, as the decision had already been taken.
6. Hence this petition.”
This application is misconceived and without merit. Essentially, it seeks an impermissible review of the merits of the Tribunal’s decision which the Court finds was not affected by jurisdictional error. Thus, the application must be dismissed.
Background
The Applicant relies upon his application and an affidavit affirmed by him on 20 February 2015 and submissions filed by him dated 17 September 2015 and 29 March 2016.
The First Respondent relies upon a response dated 25 February 2015 and written submissions dated 22 March 2016. The First Respondent seeks dismissal of the application and that costs follow the event.
The Applicant was born on 11 June 1985 and is a citizen of India. He resides in Australia and has done so since 2007. By correspondence of 2 May 2008 from Trades Recognition Australia (TRA) he was advised that his then recent application for skills assessment of his training and/or work experience for the purposes of migration to Australia had been completed and that taking all the information provided by him into account he was successful in an occupation of pastry cook 4512-13. In that correspondence advising of the pre-migration skills assessment application outcome, TRA set out relevantly the following:-
“Statement of Reasons:
The evidence provided has satisfied formal training requirements set out at section 12 of the UAC. The evidence provided has satisfied 900 hours directly related work experience set out at section 12 of the UAC.”[1]
[1] Letter from Trade Recognition Australia to Vikas Attri dated 2 May 2008.
TRA was provided by the Applicant with a work reference from Axilleon Continental Cakes, Biscuits, Pastries of Sydney Road, Coburg. That document was headed “To whom it may concern” and said at commencement as follows:-
“This is to certify that Mr. Vikas Attri (DOB 11-06-1985) has worked in our bakery from 24th March 2007 to 25th March 2008. He was very passionate to learn. Hence, upon his insistence, he started working 20 hours per week during his studies and full time in the holidays as a volunteer pastry cook. As a student, he worked as per his student visa conditions. He has till (sic) date completed 1020 hours of professional Pastry Cook experience under the supervision of Head-Pastry chef (Tina Galanos).”
On 16 April 2009, the Applicant applied for the visa. It was a requirement for the grant of the visa that the Applicant nominate an occupation and provide evidence of a skills assessment for the nominated occupation. On page 9 of the visa application form the Applicant nominated pastry cook and stated that his skills had been assessed by TRA and that he had obtained a skills assessment on 2 May 2008 bearing reference number TRA08/062209195. The Applicant provided details of his Australian qualifications, namely, an AQF Certificate III in Food Processing (Retail Baking) Cake and Pastry, from Della International College Proprietary Limited.
On 21 June 2012 the Department of Immigration and Citizenship (‘the Department’) wrote to the Applicant’s migration agent requesting further information concerning the Applicant’s work experience including voluntary work experience required for the grant of the visa. On 18 July 2012 the Applicant’s migration agent submitted documents in response including a work reference from Tina Galanos of Axilleon Continental Cakes, Biscuits and Pastries attesting to the Applicant’s completion of 1020 hours professional pastry cook experience.
On 17 September 2012 the Department wrote to the Applicant to invite his comment on information for a Skilled (Provisional) (Class VC) Skilled – Graduate (subclass 485) visa noting that it was a requirement for the grant of the visa that the Applicant satisfied Public Interest Criterion 4020 (PIC 4020) of the Migration Regulations 1994 (Cth) (‘the Regulations’). The correspondence said:-
“…Clause 4020(1) requires that there 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:
· the application for the visa; or
· a visa that the applicant held in the period of 12 months before the application was made.”[2]
[2] Letter from Department of Immigration and Citizenship to Mr Vikas Attri dated 17 September 2012.
The Department noted to the Applicant that there was evidence suggesting that he had provided or caused to be provided a bogus document or false or misleading information in relation to his visa application. As to that bogus document, the following information was provided by the Department to the Applicant:-
“On 04 December 2011, in support of your application for a Skilled (Provisional) (Class VC) subclass 485 (Skilled – Graduate) visa, you provided to the Department a skills assessment from Trades Recognition Australia (TRA) with the reference number TRA08/062209195. To obtain the skills assessment, you supplied to TRA documents supporting your 900 hours work experience from Axilleon Cakes.
On 18 July 2012, in support of your application for a Skilled (Provisional) (Class VC) subclass 485 (Skilled – Graduate) visa, you provided to the Department your 900 hours work experience letter from Axilleon Cakes.
On 4 November 2011, a Carmine Amarante pleaded guilty to the manufacture and sale of work references from Axilleon Cakes. Amarante has admitted the documents were fraudulent in content and that they were created to assist clients to apply for permanent residence in Australia.
Evidence supplied to the court indicates that the one you submitted to Trades Recognition Australia (TRA) to obtain your skills assessment is comparable to those manufactured by Carmine Amarante.”[3]
[3] Ibid.
The enclosed material provided to the Applicant included statements given by Mr Amarante and agreed facts for the purpose of his prosecution. The Department stated that it had reason to believe that the skills assessment submitted by the Applicant might be a bogus document obtained as a result of a false or misleading statement, and invited the Applicant to comment on the information that it considered to be non-genuine and specify if the Applicant believed that there were any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen to justify the waiver of PIC 4020 and the grant of a visa.
On 12 October 2012, the Applicant’s migration agent provided further responses and documents to the delegate.
On 17 October 2012, a delegate of the First Respondent refused the Applicant’s application for the visa. Based on the evidence and information before the delegate, the delegate was satisfied that the skills assessment TRA submitted to the Department on 4 December 2011 was bogus as defined in s.97(c) of the Act. Therefore, the Applicant did not satisfy PIC 4020(1) of the Regulations. The delegate found no basis upon which to waive the requirement in PIC 4020(1) of the Regulations.
On 2 November 2012, the Applicant applied to the Tribunal for a review of the delegate’s decision.
On 6 June 2014, the Tribunal wrote to the Applicant’s migration agent inviting him to comment on or respond to adverse information pursuant to s.359A of the Act. The particulars of the information were set out to be as follows:-
a)An employment reference issued to the applicant by Axilleon Cakes was fraudulently produced or procured.
b)The employment reference was obtained by the Applicant or on his behalf for Trades Recognition Australia, to obtain a positive skills assessment in his nominated occupation.
c)Carmine Amarante had pleaded guilty in criminal proceedings in Victoria to the manufacture and sale of work references matching the employment reference submitted to TRA to obtain the applicant’s skills assessment.
d)Amarante had admitted that the work references were fraudulent in content and that they were created to assist clients to apply for permanent residence in Australia.
On 18 June 2014, the Applicant’s migration agent responded with a detailed submission to the Tribunal setting out that PIC 4020 did not apply to the Applicant’s application because the Applicant had submitted the skills assessment to TRA prior to TRA being validly appointed. The submission also sought to draw the Tribunal’s attention to the decision in Singh v Minister for Immigration & Anor [2012] FMCA 145 in challenging the validity of the skills assessment issued by the TRA. The Applicant also submitted further documentation, including two further statutory declarations concerning his work experience at Axilleon Cakes, as well as two corroborating statutory declarations from associates.
On 24 September 2014, the Tribunal issued a summons to the Department to produce:-
a)any document or record that confirms that the Applicant’s work reference was found in the possession of Mr Carmine Amarante as a result of the search warrant executed at his residential premises (on his USB stick);
b)any document or record that confirms that the Applicant’s work reference was similar in content and format to any false work references found in the possession of Mr Carmine Amarante as a result of the search warrant executed at his residential premises (printed copy of the work reference letter if it was on the USB stick).
On 3 October 2014, the Department advised the Tribunal that the Department’s Victorian investigation team was reviewing the Applicant’s work reference letter to provide comments on comparison with the electronic documents found during the execution of a search warrant on Mr Amarante. On 15 October 2014, the Department advised the Tribunal that although a copy of the Applicant’s work reference letter was not found on Mr Amarante’s USB stick, the electronic version of the Applicant’s work letter from Axilleon Cakes was almost identical in content and format to other work reference letters found on Mr Amarante’s USB stick seized during the execution of the search warrant.
On 27 October 2014, the Tribunal again wrote to the Applicant’s migration agent pursuant to s.359A of the Act inviting him to comment on or respond to adverse information that it considered would be part of the reason for affirming the decision under review. The particulars of the information were detailed. The reasons for the information being relevant were also detailed. That invitation to comment on or respond to information is set out in pages 165 to 171 inclusive of the Court book and is in evidence before the Court.
The Tribunal made a decision on 18 November 2014 to refuse the Applicant’s application for the visa, but such decision was later vacated due to an administrative error in sending the correspondence of 27 October 2014 to the Applicant’s authority recipient. A further letter pursuant to s.359A of the Act was issued to the Applicant’s migration agent on 3 December 2014 in generally the same terms as the letter of 27 October 2014.
On 4 December 2014 the Tribunal invited the Applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review.
On 17 December 2014 the Applicant’s migration agent responded to the Tribunal’s letters of 3 and 4 December respectively, making further submissions, reiterating that PIC 4020 of the Regulations did not apply to the Applicant, that the Applicant was a person of genuine character and that he was not involved in dealings between Mr Amarante and Ms Galanos. The Applicant also provided a further statutory declaration.
On 28 January 2015 the Applicant, with the assistance of his migration agent, appeared before the Tribunal to give evidence and present arguments. Following the hearing, on 30 January 2015 the Applicant provided a further statutory declaration and supporting photographs for the Tribunal’s consideration.
On 30 January 2015 the Tribunal notified the Applicant of its decision to affirm the decision of the delegate under review. The Tribunal further, as requested, enclosed a copy of the recording of the hearing held on 28 January 2015.
Tribunal decision
In the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) and at paragraph 13, the particulars of the information provided in the correspondence of 27 October 2014 forwarded by the Tribunal to the Applicant pursuant to s.359A of the Act were set out.
The Tribunal summarised the oral evidence of the Applicant at the hearing in paragraph 19 of its Decision Record. The Tribunal noted that the Applicant claimed to have gone to Axilleon Cakes to ask Ms Galanos for additional evidence of his employment at the bakery and that she had refused to provide such evidence. The Tribunal asked the Applicant why she would refuse to provide confirmation of his employment if she had records of his attendances at work and if he genuinely worked there. The Applicant stated that Ms Galanos was afraid. The Tribunal inquired of the Applicant if he had asked “Steve”, the pastry chef and his supervisor, to provide confirmation of his employment at Axilleon Cakes, and the Applicant stated that he did not because he was unable to see him. He stated he went to the Axilleon cake shop in November 2014 and that according to his understanding, Steve is the new owner of the bakery. The Tribunal also explained to the Applicant the waiver provisions in PIC 4020(4) of the Regulations and asked him if there were any compelling circumstances that affected the interests of Australia or compelling and/or compassionate circumstances that affected the interests of an Australian citizen, permanent resident or eligible New Zealand citizen that justified the grant of a visa in his case. The Applicant stated there was no such circumstances that he wished the Tribunal to consider.
The Tribunal correctly noted that the issue for it was whether the Applicant met PIC 4020 as required by cl.485.224 of the Regulations for the grant of the visa. The Tribunal noted that these requirements could only be waived if certain compelling and compassionate reasons were in existence.
The Tribunal addressed the submissions advanced by the Applicant’s migration agent that PIC 4020 did not apply because the TRA was not a relevant assessing authority at the time the skills assessment was obtained. The Tribunal found that the approval of the TRA as a relevant assessing authority was immaterial to the question of whether the Applicant had given a bogus document within the meaning of s.97 of the Act for the purposes of PIC 4020.
The Tribunal gave little weight to evidence from the Applicant that he was able to find other work as a pastry cook based on his work at Axilleon Cakes, as it was not evidence of itself that he had worked at Axilleon Cakes, and also because he had been driving taxis since 2012.
Similarly, the Tribunal gave little weight to the spreadsheet provided by the Applicant of his working hours at Axilleon Cakes, as it had not been signed or verified by the employer and it had been created by the Applicant almost three years after he completed his work experience at Axilleon Cakes. The Applicant provided no reasonable explanation as to why he did not obtain a photocopy of the original attendance records claimed to be kept by Ms Galanos, or why she refused to allow him to take photocopies of the original records.
Likewise, the Tribunal, as set out in paragraph 38 of its Decision Record, considered statutory declarations provided by Anterpreet Mahal and Bhajandeep Maan, but gave little weight to this evidence because neither statement confirmed the period of the Applicant’s employment at Axilleon Cakes or number of hours worked.
The Tribunal noted that it was sufficient that the Tribunal “reasonably suspects” that the document provided by the review Applicant was bogus. The Tribunal set out in paragraph 42 of the Decision Record that it had a number of concerns about the authenticity of the Applicant’s work reference from Axilleon Cakes. The Tribunal placed some weight on the information relating to the Department’s investigation into work references from Axilleon Cakes, as set out in the delegate’s decision and in information provided to the Tribunal by the Department, as put to the Applicant in the Tribunal’s letter to him. Whilst the Tribunal noted that the information provided from the Department was not conclusive evidence that the Applicant did not work at Axilleon Cakes for the period of time claimed, when combined with other concerns of the Tribunal, the Tribunal found the information from the Department did raise genuine concerns about the authenticity of the Applicant’s claimed work experience.
The other concerns of the Tribunal were as set out in the Decision Record. They included that the Tribunal found some of the Applicant’s evidence about his work at Axilleon Cakes to be “vague and, at times, inconsistent”. The Tribunal found it difficult to accept that the Applicant was unable to recall the shop that was next door to Axilleon Cakes. The Tribunal accepted that the Applicant may have performed a small amount of work at Axilleon Cakes to familiarise himself with the premises, but did not accept that he had performed over 900 hours of work at that business premises. The Tribunal found the unwillingness of Ms Galanos to provide the necessary evidence as to the Applicant’s number of hours performed at the bakery to add to the overall concern of the authenticity of the work reference and claimed work experience of over 900 hours with Axilleon Cakes.
Based on the evidence before it which the Tribunal considered to be of sufficiently probative value, the Tribunal found that the work reference letter given to TRA by the Applicant contained a false and misleading statement that the review Applicant completed 1020 hours work experience as a pastry cook at Axilleon Cakes. The Tribunal consequently found that the Applicant’s positive skills assessment from TRA was a bogus document within the meaning of s.97(c) of the Act. Accordingly, the Tribunal was not satisfied there was no evidence that the review Applicant had given or caused to be given to a Minister or an officer of the Department, the Tribunal or a relevant assessing authority a bogus document or information that was false or misleading in a material particular in relation to his application for the visa.
The Tribunal did not consider there were any compelling circumstances justifying the waiver of PIC 4020(1).
Consideration
There is nothing in the evidence before the Court to support a reasonable apprehension of bias on the part of the Tribunal and no inference of bias or pre-judgment can be drawn from the mere fact of adverse findings in the tribunal’s reasons.[4] An allegation of bias is a serious allegation and needs to be properly founded in evidence.
[4] VFAB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21].
It is clear that the Tribunal complied with its obligations in div.5 pt.5 of the Act in the process undertaken by it and as set out earlier in these reasons. The Applicant was afford procedural fairness, and there is no evidence before the Court to suggest otherwise.
Essentially, the Applicant seeks an impermissible request for merits review of the Tribunal’s decision. There is no doubt the Tribunal’s findings were open to it on the evidence before it and for the clear reasons it gave. It complied with s.359A of the Act.
The TRA became a relevant assessing authority on 1 October 2011, and the decision on the visa application was made on 17 October 2012.
The Applicant contends that the Tribunal should have questioned the TRA concerning the issuing of a bogus skills assessment or had his competence tested by “some other competent technical body.” However the Court accepts the submissions of the First Respondent that the status of the TRA to issue the skills assessment is immaterial in circumstances where the Applicant had provided a bogus document to the Minister. The Applicant does not dispute that he gave the work reference to the TRA so that he could obtain a skills assessment from it believing that at that time, the TRA was a relevant assessing authority. The Tribunal was entitled to find that the Applicant had obtained a skills assessment from the TRA by means of a false or misleading statement being that the Applicant had completed 1020 hours of work experience as a pastry cook at Axilleon Cakes. As was said by Wigney J in Kaur v Minister for Immigration and Border Protection [2014] FCA 281, as to the statutory purpose of criterion 4020 at paragraph 47:-
“…Criterion 4020 is one of a number of criteria in Schedule 4 of the Regulations that permit the Minister to grant or refuse visas having regard to considerations of the public interest. In relation to criterion 4020, it is obviously considered to be in the public interest for the Minister to be able to refuse a visa if there is evidence that the applicant has furnished false or misleading information that is relevant to a criterion for the visa. That is not just because applicants should be dissuaded from providing false information. It is also because visa decisions should be made on the basis of truthful and accurate information…”
A criterion for the grant of a Skilled - Graduate visa is that the Applicant does, in fact, possess the requisite skills. It is obviously in the public interest for the Minister to refuse such a visa if it appears at the time of decision that information relevant to the criterion that is intended to ensure that the Applicant has those skills (cl.485.221) is false or misleading.
Finally, as submitted by Counsel for the First Respondent, by virtue of s.362(2)(b) of the Act, a decision on review is taken to have been made on the day and at the time the written statement is made. The making of its written statement at 3.54 pm on 29 January 2015 by the Tribunal rendered the Tribunal functus officio; that is, having discharged its function to review the delegate’s decision at that time, the Tribunal had no power to re-open or revoke its decision on review once validly made (section 368(2A) of the Act). Thus the Applicant’s argument that the Tribunal failed to consider photographs of Axilleon Cakes and a further statutory declaration he provided to it on 30 January 2015 at 10.37 am, after the hearing, cannot succeed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 14 April 2016
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