Bajwa v Minister for Immigration

[2014] FCCA 2055

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAJWA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2055

Catchwords:
MIGRATION – Judicial review – bogus document given by applicant – whether satisfied Public Interest Criteria – document obtained by false or misleading statement – criteria for a visa not satisfied – Trades Recognition Australia appointed properly – application for judicial review dismissed.

Legislation:

Federal Circuit Court Rules 2001, r.15.03
Migration Act 1958, ss.97, 375A
Migration Regulations 1994, reg.1.03, Sch.2 cl.886.225, Sch.4 PIC 4020

Batra v Minister for Immigration & Anor [2012] FMCA 544
Briginshaw v Briginshaw (1938) 60 CLR 336
Luu & Anor v Renevier (1989) 91 ALR 39
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567
Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73
Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208
NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35
SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328
SZOZO v Minister for Immigration and Citizenship [2011] FCA 944
Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275

Applicant: KIRANDEEP SINGH BAJWA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 477 of 2014

Judgment of: Judge F. Turner

Hearing date: 6 August 2014

Date of Last Submission: 6 August 2014

Delivered at: Melbourne

Delivered on: 11 September 2014

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application for judicial review filed 18 March 2014 and Amended Application filed 18 July 2014 are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 477 of 2014

KIRANDEEP SINGH BAJWA

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 of the decision of the Migration Review Tribunal (the “Tribunal”) dated 21 February 2014. That decision affirmed the decision of a delegate to the Minister for Immigration & Border Protection not to grant the applicant a Skilled (Residence) (Class VB) visa.

2. The applicant applied for a subclass 886 visa on 10 July 2008. The delegate refused to grant a visa because the applicant did not satisfy the requirements of cl.886.225 of Schedule 2 to the Migration Regulations 1994 (the “Regulations”), because the applicant did not satisfy Public Interest Criteria (“PIC”) 4020.

3. Part 886 of Schedule 2 of the Regulations sets out in part the criteria to be met for the grant of the visa at the relevant time.

4. The relevant provisions of the Migration Act 1958 (the “Act”) and Regulations at the time were as follows.

5. Clause 886.225 was one of the mandatory requirements for the visa at the time and provided:

   (1)The applicant:

   (a)satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; and

   (b)if the applicant had turned 18 at the time of application – satisfies public interest criterion 4019.

6. PIC 4020 is included in Schedule 4 to the Regulations and states:

   (1)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:

   (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.

   (2)The Minister is satisfied that during the period:

   (a)starting 3 years before the application was made; and

   (b)ending when the Minister makes a decision to grant or refuse the application;

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a)compelling circumstances that affect the interests of Australia; or

   (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.

   (5)In this clause:

   information that is false or misleading in a material particular means information that is:

   (a)false or misleading at the time it is given; and

   (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

7. Regulation 1.03 defines bogus document as having “the same meaning as in section 97 of the Act”.

8. That definition is:

   “bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)purports to have been, but was not, issued in respect of the person; or

   (b)is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)was obtained because of a false or misleading statement, whether or not made knowingly “

9. The applicant lodged his application for a visa on 10 July 2008 and on 5 September 2008 provided to the Department a skills assessment from Trades Recognition Australia (“TRA”) (CB p.147.6).

10. On 2 June 2010, TRA advised the Department that it had decided to revoke the ‘Pre-Migration Skills Assessment Application Result’ issued to the applicant (CB p.147.8).

11. On 30 June 2010, the Department wrote to the applicant and invited comment on the revocation of the Skills Assessment Result and the applicant’s ability to satisfy the relevant visa criteria (CB p.84).

12. On 31 January 2012, TRA provided further information and advised the Department that the applicant’s assessment outcome was revoked on 2 June 2010 for “providing fraudulent work experience documents from Cake Box” (CB p.147.10).

13. On 15 October 2012, the Department wrote to the applicant and invited him to comment on the new information within 28 days (CB p.113.6). The applicant responded on 22 October 2012 (CB p.118).

14. After considering the response, the delegate decided that the applicant had “failed to demonstrate that the information [he] provided to TRA… is not false or misleading….” The delegate was “therefore satisfied that the TRA Skills Assessment… submitted to the Department on
    5 September 2005 is bogus, as defined in paragraph 97(c) of the Act”. Therefore the applicant did not satisfy PIC 4020(1)

    
    

    (CB p.149.1.).

15. The delegate found that the applicant had not raised any compassionate or compelling circumstances for the purpose of PIC 4020(4)

    
    

    (CB p.149.2).

16. PIC 4020 appears in Schedule 4 to the Regulations (supra).

17. The delegate decided that the requirement of PIC 4020(1) not be waived (CB p.149.2). That is a discretionary power. The delegate found that PIC 4020(1)(a) was not satisfied and therefore the applicant did not meet cl.886.225 that an applicant satisfies PIC 4020 (CB p.149.4).

18. The applicant then applied to the Tribunal for a review (CB p.152).

19. The Tribunal wrote to the applicant on 2 December 2013 inviting the applicant to appear before the Tribunal on 14 January 2014 to give evidence and present arguments (CB p.173).

20. The Tribunal wrote to the applicant on 17 January 2014 and invited him to comment on the revocation of his TRA Skills Assessment, and explained the relevance of that information (CB p.187.2).

21. The applicant’s migration agent responded on 30 January 2014 that he could not find any copy of the note from the Cake Box denying having had anything to do with the applicant (CB p.192). The agent requested a copy of the relevant emails and an extension of time (CB p.193.1). The Tribunal refused an extension of time (CB p.195). The Court finds that the Tribunal did not breach any provision of Division 5 of Part 5 of the Act which is an exhaustive statement of the requirements of the natural justice hearing rule for matters under that Division.

22. The Tribunal stated in its decision that certain folios were not provided because they were subject to a s.375A certificate and that disclosure of the documents would “be contrary to public interest” (CB p.200 [7]).

23. The issue before the Tribunal was whether the applicant met PIC 4020. The Court finds that at 15 October 2010 the owner of Cake Box denied having had anything to do with the applicant (CB p.202 [19]).

24. The Tribunal relied on the decision in Batra v Minister for Immigration & Anor [2012] FMCA 544, to decide that, it is immaterial whether TRA had been delegated to perform its function. In that decision FM Riley, as she then was, decided at [11]:

    “The bogus character of the TRA skills assessment is in no way altered or diminished by the alleged invalidity… it was, in the Tribunal's view, obtained because of a false or misleading statement to the effect that the applicant had worked for 900 hours at O'heas. That is all that is required to bring it within the ambit of s.97(c). Moreover, the express terms of s.103 prohibit the presentation of any such bogus document to the Department, and do not provide for any exceptions or qualifications.”

25. That decision was affirmed on appeal and is currently the subject of an application for special leave to the High Court of Australia. The decision however represents the current law and is followed in this matter. The Court notes that the TRA had been appointed at the time of decision by the Tribunal here, and the application of Batra is not necessary. (post).

26. The Tribunal here decided that the TRA Skills Assessment was “a document that can be considered for the purposes of assessing whether the applicant satisfies PIC 4020” (CB p.203 [24]). The Court finds no error of law in that conclusion.

27. The Tribunal considered the applicant’s migration agents’ reliance on Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362 but decided that it was not able to release the documents which were subject to the s.375A certificate (CB p.203.8).

28. The Tribunal was satisfied that sufficient information was available to the applicant about the advice from the Cake Box. The Tribunal found that the note on the Department’s file, indicating that as at 15 October 2010, the owner of Cake Box since 2007 denied having anything to do with the applicant, showed that the work reference “contained a false and misleading statement”, whether or not made knowingly (CB p.204.8). Accordingly, the Tribunal found that the Skills Assessment of the applicant was a result of a false or misleading statement that the applicant worked at the Cake Box in 2008 (CB p.204 [33]).

29. The Court finds that finding of fact was open to the Tribunal on the material before it and is not amenable to review.

30. In NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, the Full Court decided at [10]:

    “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.” (emphasis added)

31. The Tribunal found that the applicant does not meet PIC 4020(1) (CB p.204.10). That is a finding of fact and is not amenable to review.

32. The Tribunal considered whether or not there were “compassionate or compelling circumstances” for the waiver of the requirements of PIC 4020. The applicant did not provide any information relating to the waiver provisions relied on (CB p.205.3) and the Tribunal was not satisfied that the requirements should be waived (CB p.205.4).

33. The Tribunal found that the applicant does not satisfy PIC 4020 or cl.886.223 and affirmed the decision of the delegate (CB p.205.9).

34. In the application for judicial review filed 18 March 2014, the applicant stated the following grounds for judicial review:

    (1)I never went to the hearing as I was misguided

    (2)I am working from 2 years in Bakery (Full Time)

    (3)My employer of my experience from “CAKE BOX” did not Acknowledge my work as a new Employer of the shop.

35. In the Amended Application filed on 18 July 2014 the applicant states his grounds for judicial review as follows:

    (1)My experience at “Cake Box” bakery is genuine

    (2)I am working as professional Baker from last three years

    (3)My Trade Skill Assessment (TRA) was initially approved.

36. The applicant attached written submissions to his Affidavit filed on

    
    

    18 July 2014. The applicant set out his employment history. The applicant stated that as well as working for the Cake Box from 7 May 2007 to 25 April 2008, he has worked at Brumby’s Bakery and Coles. The applicant says at first that there was a new owner at Cake Box Bakery but then says that there was change of ownership of the Cake Box during his time there. The applicant approached the owner of the Cake Box who refused to support him.

37. The applicant attached two letters from Coles, Donvale stating that he has worked there as a full-time baker since 6 November 2012, and a letter from Brumby’s Mitcham that states that the applicant was employed there from December 2010 to November 2012.

38. The applicant made oral submissions to the Court on 6 August 2014 but added nothing of significance.

39. The first respondent filed Contentions of Fact and Law on 30 July 2014. The first respondent at[13] dealt with the submission for the applicant that “the TRA Skills Assessment was a nullity which could not be infected by a false or misleading statement as the TRA had not been appointed as a relevant assessing authority….”

40. The first respondent relies on the decision in Batra (supra).

41. The Court accepts the submission for the first respondent at [37] that:

    “The proper appointment of TRA as a relevant assessing authority was effected by the legislative instrument issued by the Minister (IMMI 12/068) which commenced on 1 July 2012, which meant that the TRA was the relevant assessing authority at the time of the Tribunal’s decision, for the purposes of cl 866.223(1).”

    (That decision being dated 21 February 2014)

42. The first respondent then addresses the grounds for judicial review,  being first that the applicant did not go to the Tribunal hearing as he was misguided (by his migration agent).

43. The Court finds that the applicant was invited to attend the hearing on 14 January 2014 (CB p.173) to give evidence and present arguments but he did not avail himself of the opportunity to give oral evidence (CB p.203.3). The Tribunal gave the applicant an opportunity to comment on, or respond to, the information provided by TRA, essentially stating that the Cake Box owner in 2008 claimed to have no knowledge of the applicant (CB p203.4).

44. The Court applies the following decisions to the applicant’s failure to accept the opportunity to attend and give evidence and explanation.

45. When the applicant failed to attend the hearing to accept the opportunity to give evidence and explanation, “the inevitable consequence was the rejection of his application”: see SZIGQ & Anor v Minister for Immigration & Citizenship & Anor [2007] FCA 328 at [4] (citing NAVX v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 287 at [5]).

46. It is clear from authorities that once the Tribunal complies with the requirements of notifying the applicant and inviting him to attend, if he fails to attend, “the reason for non-attendance at a hearing does not matter”: see SZIGQ (supra) per Downes J at [5].

47. By proceeding to a decision without hearing from the applicant, the Tribunal acted in accordance with the statutory scheme: see SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 at [48]. Further, there is no obligation on the Tribunal to make inquiry as to the failure on the part of an applicant to appear: see Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39].

48. In SZOZO v Minister for Immigration and Citizenship [2011] FCA 944, Reeves J at [21] to [22] stated:

    “The appellant’s fundamental problem in this appeal is that he passed up his opportunity for a full merits review by the Tribunal by electing not to accept its invitation for him to attend before it and elaborate on his claims. As the Full Court said in NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 (at [8]), once he did that: “the inevitable consequence was the rejection of his application”.

49. Further at [22], his Honour stated:

    “…the election to proceed to a decision on the review in the absence of the appellant cannot, by itself, be treated as the expression of an unreasonable exercise of the power.”

50. The Court finds that the applicant was invited to attend the hearing but failed to do so. The Tribunal’s decision to proceed was not an unreasonable exercise of power. The first ground of a failure to attend the hearing does not show an error of law by the Tribunal and is dismissed. Fraud by his migration agent has not been established.

51. The second ground is that is employer did not acknowledge that the applicant worked at the Cake Box.

52. Although “… the concept of onus of proof is not appropriate to administrative inquiries and decision-making…” (as stated in Yao-Jing v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275 at p.288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in an much detail as is necessary to enable the examiner to establish the relevant facts.

53. The Court refers to the following decisions:

    ·Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 144 ALR 567 at p.596:

    “… the mere fact that a person claims fear of persecution… (for a particular reason) does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for… (the reason claimed). It remains… for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.”

·A decision-maker is not required to make the applicant’s case for him or her: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p.170 and Luu & Anor v Renevier (1989) 91 ALR 39 at p.45.

·Nor is the Tribunal required to accept uncritically any and all allegations made by the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at p.451.

1. The Court applies the decision SZIGQ (supra) where the reasons that the applicant failed to establish this matter, includes that he failed to provide sufficient information about his claims to satisfy the Tribunal. The decisions of the Full Court in NAST v Minister for Immigration and Multicultural and Indigenous Affairs[2004] FCAFC 208, NAVX (supra) and Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003[2005] FCAFC 73 confirm that this is a valid reason for the application (in SZIGQ (supra)) to be rejected.

2. That ground shows no error of law by the Tribunal and is dismissed.

3. The first ground in the Amended Application seeks a review of the merits and is dismissed: see NAHI (supra)

4. The second ground in the Amended Application raises the irrelevant matter of this then current work and is dismissed

5. The third ground in the Amended Application is that the applicant’s TRA Skills Assessment was initially approved. The Court finds however, that the assessment was revoked in 2010. That ground is dismissed.

6. The written submissions attached to the applicant’s Affidavit filed on 18 July 2014 have been dealt with (supra) and require no further comment.

7. At the hearing by the Court on 6 August 2014, the applicant represented himself and Mr Brown represented the first respondent. Mr Brown agreed, pursuant to r.15.03 of the Federal Circuit Court Rules 2001 (the “Rules”), to the Court making a decision without an oral hearing of submissions by the first respondent.

Findings

1. An error of law by the Tribunal has not been established. The Tribunal’s finding of fact in relation to the bogus document was open to it on the material and is not amenable to review: NAHI (supra).

2. There was no evidence put before the Tribunal to support a waiver of PIC 4020.

3. Production of a document subject to a s.375A certificate was properly withheld from the applicant pursuant to s.375A of the Act.

4. The application for judicial review is dismissed.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date: 11 September 2014