Bari v Minister for Immigration
[2013] FMCA 14
•22 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BARI v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 14 |
| MIGRATION – Application for review of decision of Migration Review Tribunal – information provided to Trades Recognition Australia – whether TRA was a relevant assessing authority – whether PIC 4020 applied – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s.476 Migration Regulations 1994 (Cth), r.1.03, 2.26B, Pt.886 of Sch.2, Sch.4 Legislative Instruments Act 2003 (Cth), s.12 Migration Amendment Regulations 2011 (No 1) (Cth), Sch 3 |
| Singh v Minister for Immigration & Anor [2012] FMCA 145 Hu & Anor v Minister for Immigration & Citizenship & Anor [2007] FMCA 1710 Dhiman v Minister for Immigration & Citizenship [2012] FMCA 646 Dhiman v Minister for Immigration & Citizenship [2012] FCA 1254 Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1395; (2004) 139 FCR 254 |
| Applicant: | KAZI MD ZIAUL BARI |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 890 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 2 November 2012 |
| Date of Last Submission: | 6 November 2012 |
| Delivered at: | Sydney |
| Delivered on: | 22 January 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application made on 23 April 2012 and amended on 27 June 2012 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5,400.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 890 of 2012
| KAZI MD ZIAUL BARI |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 23 April 2012, and amended on 27 June 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Migration Review Tribunal (“the Tribunal”), made on 26 March 2012, to affirm the decision of the Minister’s delegate, made on 31 August 2010, to refuse the grant of a Skilled (Residence) (Class VB) visa to the applicant.
Background
The applicant is a citizen of Bangladesh (CB 2). On 21 August 2009 he applied for a Skilled Sponsored (Class VB, subclass 886) visa (“the visa”) (CB 1 to CB 41, including attachments). The applicant’s nominated skilled occupation was “Cook” (CB 9). Relevantly, with that application the applicant provided three work reference letters from three different restaurants: “Indioz” (CB 16), “Bombay Fusion” (CB 17 to CB 19) and “The Clay Oven” (CB 20 to CB 23).
The Delegate
By letter dated 12 July 2010 the applicant was advised that “[r]esults of an investigation conducted by this department indicate that some of the information provided with your application may be false or misleading” (CB 45.6). Specifically, the information provided by the applicant to the “Department of Education, Employment and Workplace Relations to obtain a Skills Assessment”. The applicant was referred to (the now repealed) cl.886.224 of the Migration Regulations 1994 (Cth) (“the Regulations”) and invited to comment on, or provide any further information in relation to, the revocation of his skills assessment result and/or his ability to satisfy cl.886.224 (CB 46.3).
On 6 August 2010 a “Paul Chaofeng Guan”, “Solicitor & Registered Migration Agent”, replied, by email, to the “natural justice letter” (CB 50 to CB 51). He stated that the applicant “vigorously insists” that the documents submitted were “genuine and not misleading”. Further, that the applicant had worked voluntarily for his work experience and that his aunt, an Australian citizen, had financially supported him during that time. Attached to that email were copies of the three work references submitted by the applicant for his skills assessment (CB 50.3 and CB 58.5) and a Statutory Declaration by the applicant’s aunt (CB 50.4 and CB 52).
On 31 August 2010 the delegate decided to refuse the grant of the visa to the applicant (CB 60). The delegate noted that the investigation conducted by the Minister’s department indicated that the applicant did not complete work experience at any of the three restaurants as he claimed. The delegate found that the applicant “…failed to provide sufficient evidence, including by the provision of any further, third party documents, in a way that would reassure [the delegate]” and allow her to find that his employment claims had been “adequately substantiated” (CB 58.6). Further, the delegate noted that in her Statutory Declaration, the applicant’s aunt had not named the restaurants in which he said he had worked. In light of the above, the delegate was not satisfied that the applicant met cl.886.224 of Sch.2 the Regulations (CB 59.1 and CB 59.3).
The Tribunal
On 17 September 2011 the applicant applied to the Tribunal for review of the delegate’s decision (CB 61 to CB 68). By letter dated 8 September 2011, the applicant was invited to comment on or respond to information that the work references the applicant had submitted were false and misleading (CB 71 to CB 73). That information was said to be relevant to the review as, if the Tribunal found that the applicant had provided to (CB 72.1):
“…the Minister, an officer, or the relevant assessing authority, a bogus document or information that is false or misleading in a material particular in relation to the applicant for the visa…the consequences are that the Tribunal may not be satisfied that you meet Public Interest Criteria (PIC) 4020 and cl.886.225 [of the Regulations].”
On 20 September 2011 the applicant appointed “Mr Raymond Charles Turner”, of Turner Coulson Immigration Lawyers, as his representative and authorised recipient of correspondence for the purpose of the review (CB 74).
By letter dated 17 October 2011 Mr Turner replied to the Tribunal’s invitation (CB 75 to CB 93, including annexures). Enclosed with that letter was a copy of the applicant’s application to the “Trades Recognition Australia” (“TRA”) (CB 77 to CB 93). Mr Turner stated that it was “…not possible to provide evidence that Mr Bari was employed by the restaurants as he was not employed by them…he did, however, work at the restaurants for no pay” (CB 75.4). It was the applicant’s contention that he was “…only claiming to have worked in the restaurants, not to have been employed by them” (CB 76.2).
By letter dated 1 November 2011, the applicant was invited to attend a hearing before the Tribunal scheduled for 2 December 2011 (CB 94 to CB 95). On 30 November 2011 the applicant’s representative requested that the hearing be postponed (CB 101 to CB 103). That request was agreed to and a new hearing date of 19 January 2012 provided (CB 105 to CB 106). The applicant and his representative attended on that occasion, as did the applicant’s aunt who provided evidence in support of his claims (CB 119).
At the hearing, the applicant indicated that he wished to provide copies of his tax records and group certificates for the relevant period ([49] at CB 139). On 31 January 2012, the applicant’s representative wrote to the Tribunal and sought an extension of time in which to provide the documents (CB 123). That request was granted and the time for the provision of such documents extended to 14 February 2012 (CB 125). No such documents were provided by that date (CB 126.4).
On 26 March 2012, the Tribunal decided to affirm the decision of the Minister’s delegate to refuse the grant of the visa to the applicant (CB 130 to CB 142). The applicant was notified of that decision by letter dated 27 March 2012, sent by facsimile transmission to his representative (CB 127 to CB 129). The applicant was also separately notified by post (CB 128).
The Tribunal found that, given the inconsistencies in the applicant’s evidence and the applicant’s failure to supply supporting documentation, it could not accept his oral evidence ([56] at CB 140). The Tribunal considered the evidence provided by the applicant’s aunt, both orally and in her Statutory Declaration, and while it accepted that she had provided financial support to the applicant from 2005 to 2009, it was not satisfied that there was “…sufficient reliable detail in her evidence to make findings that [the applicant] worked voluntarily at the three restaurants in the periods as claimed” ([57] at CB 140).
The Tribunal considered the evidence of Mr Singh (the owner of the three restaurants who gave a statement as part of a formal investigation by the Department), rejected the applicant’s submission that Mr Singh was “not a cooperative witness”, and placed “greater weight” on Mr Singh’s statement to the Departmental investigators ([58] at CB 141). As a result, the Tribunal was not satisfied that it could rely on the applicant’s work references ([58] at CB 141). Ultimately, the Tribunal did not accept that the applicant was employed by, or worked voluntarily at, any of three restaurants as claimed in his skills assessment application form to the TRA and in his evidence to the Department and the Tribunal ([59] at CB 141).
In light of this, the Tribunal found that work references provided by the applicant to the Department when he made his visa application, to the Tribunal, and to the TRA included information that was false or misleading at the time that it was given ([60] at CB 141 to CB 142). Consequently, the Tribunal was not satisfied that the applicant met Public Interest Criteria (“PIC”) 4020(1).
The Application to the Court
The amended application to the Court contains two grounds. Before the Court, and in written submissions, the applicant only sought to press the first ground. That is:
“1. The Tribunal erred in finding that Public Interest Criterion 4020 applied to the applicant.
Particulars
(a) Error in finding that information that the applicant gave to Trades Recognition Australia (TRA) and to the Department of Immigration and to the Tribunal about his work experience and employment was relevant to Cl.886.223(1) of Schedule 2 of the Migration Regulations in circumstances where TRA was not the ‘relevant assessing authority’ for the applicant’s nominated skilled occupation.
Further Particulars
(i) There was no instrument made under subregulation 2.26B(1) of the Migration Regulations, 1994 that validly specified the TRA to be a ‘relevant assessing authority’ at the time that it made its decision to approve the applicant’s nominated skilled occupation.”
Before the Court and in written submissions the applicant also sought to argue that s.12 of the Legislative Instruments Act 2003 (Cth) (“LIA”) prevents a legislative instrument from operating retrospectively and that the “Instrument of Approval”, effective on 15 September 2011, was invalid insofar as it purported to operated from a date prior to 15 September 2011 ([20](b) – (c) of the applicant’s written submissions).
Relevant Legislation
As at the date of the delegate’s decision (31 August 2010), the time of decision criteria for the grant of a Sub-class 886 visa provided, relevantly, as follows:
“886.223 (1) The skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation.
…
886.224No evidence has become available since the time of application that the information given or used:
…
(d) to obtain the skills assessment mentioned in subclause 886.223(1);
was false or misleading in a material particular.”
“Relevant assessing authority” (in cl.886.223(1)) is defined in r.1.03 of the Regulations to mean “a person or body specified under regulation 2.26B”. Regulation 2.26B relevantly provides:
“Relevant assessing authorities
(1) Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:
(a) a skilled occupation; and
(b) one or more countries;
for the purposes of an application for a skills assessment made by a resident of those countries.
(1A) The Minister must not make an instrument under subregulation (1) unless the person or body has been approved in writing as the relevant assessing authority for the occupation by:
(a) the Education Minister; or
(b) the Employment Minister.
…”
The Migration Amendment Regulations 2011 (No 1) (Cth) (“the Amending Regulations”) commenced operation on 2 April 2011 (cl.2 of the Amending Regulations). Schedule 3 of the Amending Regulations inserted PIC 4020 in Sch.4 to the Regulations, removed cl.886.224, and amended cl.886.225 so that it included a reference to PIC 4020. Those amendments applied to applications for a visa made, but not finally determined, before 2 April 2011.
As a result, at the date of the Tribunal’s decision (26 March 2012), cl.886.223(1) was in the same terms as above (see [17] above). However, cl.886.225 provided:
“886.225 The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; …”
Public Interest Criteria 4020 relevantly provides:
“(1) There is no evidence before the Minister that the applicant has given, or cause 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.
…
(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 requirement of any or all of the paragraphs (1)(a) or (b) and subclause (2) is 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 that information.
…”
Further, on 15 September 2011, the “Minister for Education” approved, in writing, the TRA as the relevant assessing authority for the skilled occupation of “Cook”, pursuant to r.2.26B(1A) of the Regulations (“the Instrument of Approval”). On 28 September 2011 the respondent Minister made an instrument (“IMMI 11/068”) under r.2.26B(1) of the Regulations specifying the TRA as the relevant assessing authority for the skilled occupation of “Cook” for persons who lodged their visa applications prior to 1 July 2010. That instrument (IMMI 11/068) was registered on 30 September 2011 and commenced operation on 1 October 2011.
Section 12 of the LIA was also relied on by the applicant and, relevantly, provides:
“When do provisions of legislative instruments take effect?
(1) Subject to subsection (2), a legislative instrument that is made on or after the commencing day, or a particular provision of such an instrument, takes effect from:
(a) the day specified in the instrument for the purposes of the commencement of the instrument or provision;
…
(2) A legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered and as a result:
(a) the rights of a person … as at the date of registration would be affected so as to disadvantage that person; or
(b) liabilities would be imposed on a person … in respect of anything done or omitted to be done before the date of registration.”
Before the Court
At the final hearing Mr LJ Karp of counsel appeared for the applicant. Mr BD Kaplan appeared for the respondent Minister. The Court had before it the Court Book and written submissions on behalf of the applicant and the Minister.
In addition, the respondent sought to put into evidence two documents provided in response to a Notice to Admit Facts, filed by the applicant on 2 October 2012:
1)A copy of the “Instrument of Approval”, signed by Chris Evans, “Minister for Tertiary Education, Skills, Jobs and Workplace Relations” on 15 September 2011 (Respondent’s Exhibit 1 – “RE1”)
2)A copy of IMMI 11/068 made by Chris Bowen, Minister for Immigration and Citizenship, on 28 September 2011 (Respondent’s Exhibit 2 – “RE2”).
The Submissions
The Applicant
The sole ground of the applicant’s amended application asserts that the applicant met PIC 4020(1) as the information provided by the applicant was not “false or misleading in relation to a material particular”. It was the applicant’s contention that his work experience was not a “material particular” on two bases.
First, because “nothing in Part 886 of Schedule 2, apart from possibly Clause 886.225(a) and then only insofar as it required compliance with PIC 4020, dealt with the applicant’s work experience” ([14](i) of the applicant’s written submissions). Second, because PIC 4020 would only be relevant if the TRA was a “relevant assessing authority” and, in the applicant’s submission, it was not.
In relation to the second basis, the applicant noted that, at the time of the applicant’s TRA assessment (27 May 2009), IMMI 09/031 was purportedly in force as it was stated to have commenced on 15 May 2009. However, the applicant submitted that IMMI 09/031 was not valid because the TRA had not been approved, in writing, for the purposes of r.2.26B(1A) of the Regulations.
In support of the second basis, the applicant referred the Court to Singh v Minister for Immigration & Anor [2012] FMCA 145 (“Singh”) (at [39] per Driver FM). In that case the Minister conceded, and his Honour found, that the TRA had not been validly specified as the relevant assessing authority pursuant to r.2.26B(1A) of the Regulations at the time of the Tribunal’s decision in that case (31 August 2011). That was because no approval had been given by either of the relevant Ministers (r.2.26B(1A) of the Regulations). By extension, the applicant in this matter sought to argue that the TRA had not been a relevant assessing authority at the time that the applicant provided the material to it and, as result, the information provided by the applicant was not a “material particular” within the meaning of PIC 4020(1) at the time that it was provided to the TRA.
While the applicant conceded that both IMMI 11/068 and the Instrument of Approval were operative at the time of the Tribunal’s decision (having the effect of making the TRA an assessing authority at that time) the applicant contended that IMMI 11/068 did not apply to the applicant. That was said to be because:
1)Section 12 of the LIA prevented an instrument from operating retrospectively.
2)The Instrument of Approval was operative from 15 September 2011 and could not validate IMMI 11/068 insofar as it purported to operate from a date prior to 15 September 2011.
[I note that before the Court the applicant made clear that he no longer relied on the third basis put in his written submissions at [20](a)].
In support of the first, that IMMI 11/068 operated retrospectively, the applicant referred the Court to, and sought to distinguish the current case from, the decision of Smith FM in Hu & Anor v Minister for Immigration & Citizenship & Anor [2007] FMCA 1710 (“Hu”). In particular, the applicant referred the Court to Smith FM’s comments at [19] where he considered the language of s.12 of the LIA and noted that it raised two elements:
1)That at the date of registration of the instrument there must be in existence “rights of a person” which “would be affected so as to disadvantage that person” (s.12(2)(a)) or the instrument imposes liabilities in respect of something done or omitted before that date (s.12(2)(b)).
2)That the instrument purports to take effect before the date of its registration.
The applicant sought to distinguish the current case from Hu on the basis that the current case was not concerned with a change to a regulation. Rather, it concerned the imposition of an instrument that was not previously an instrument. That is, IMMI 11/068. Further, that that instrument was expressed to affect a visa application that predated its imposition. That is, it applied to persons who had applied before 1 July 2010, although the instrument only came into effect on 1 October 2011.
In relation to the second, that is the instrument of approval, the applicant submitted that IMMI 11/068 purported to appoint the TRA as a relevant assessing authority prior to the date on which it received approval by one of the Ministers under r.2.26B(1A) of the Regulations. That is, while the “Minister for Education” gave approval to TRA on 15 September 2011 (the Instrument of Approval), IMMI 11/068 sought to extend the appointment of the TRA as a relevant assessing authority to a date prior to the instrument of approval coming into effect, that is 1 July 2010.
The First Respondent
In answer to the applicant’s first basis on which the material provided by him was said not to be a “material particular”, the respondent submitted that the applicant’s work experience was relevant to a material particular because it was “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” (PIC 4010(5)(b)). In particular, that information was said to be relevant to cl.886.223(1) and cl.886.225(a) to Sch.2 to the Regulations.
The Minister submitted that the applicant’s work experience was relevant to cl.886.223(1) because it bore upon the assessment of the suitability of the applicant’s skills for his nominated profession and the applicant relied on that information to obtain a positive skills assessment from the TRA. Further, in relation to cl.886.225(a), the applicant’s work experience was relevant because that clause requires compliance with PIC 4020.
In answer to the applicant’s second basis, that the TRA was not a relevant assessing authority, the Minister submitted that cl.886.225(a) is a time of decision criterion and, at the time of the Tribunal’s decision, the TRA was validly specified, by the relevant Minister and by IMMI 11/068, as a relevant assessing authority for the applicant’s nominated skilled occupation. The valid specification of the TRA at the time of the Tribunal’s decision, in the Minister’s submission, distinguished the current case from Singh and Dhiman v Minister for Immigration & Citizenship [2012] FMCA 646 (“Dhiman”) (upheld on appeal: Dhiman v Minister for Immigration & Citizenship [2012] FCA 1254 per Katzmann J).
Further, the Minister submitted that it was acknowledged in both Singh (at [65] and [69] per Driver FM) and Dhiman (at [36] per Barnes FM) that IMMI 11/068 rendered operative the visa criteria that relate to the provision of false or misleading information to relevant assessing authorities. That is, that at the time that the Tribunal in the current case made its decision, the TRA was validly specified as a relevant assessing authority as, at that time, approval had been given by one of the relevant Ministers pursuant to r.2.26B(1A) (the Instrument of Approval) and the respondent Minister had specified the TRA as the relevant assessing authority for the relevant skilled occupation pursuant to r.2.26B(1) of the Regulations (IMMI 11/068).
In answer to applicant’s submission that IMMI 11/068 violates s.12 of the LIA, the Minister submitted that IMMI 11/068 was not captured by s.12(2) of the LIA as it did not take effect before the date it was registered. It was registered on 30 September 2011 and took effect on, or commenced operation on, 1 October 2011. While para.2 of the instrument applies to visa applications made prior to 1 July 2010, IMMI 11/068, in the Minister’s submissions, does not purport to take effect before the date it is registered. Its application was only to all Tribunal decisions made on, or after, 1 October 2011.
Finally, expressed by the Minister as “the fallback option”, it was submitted that, even if the TRA had not been validly specified as a relevant assessing authority as at the date of the Tribunal’s decision, the applicant still fell foul of cl.886.225(a) as the Tribunal found that the applicant had provided information to the Department, and, separately, to the Tribunal, that was false and misleading in a material particular. That is, the applicant had provided his work references and employment history, recorded in his TRA application, to both the Department and the Tribunal and, given that the Tribunal had found that that information was false and misleading, the applicant had failed to satisfy PIC 4020(1).
Consideration
It must be said that it is difficult to understand why, with the benefit of legal advice, the applicant pressed, if not instigated, this application to this Court.
If nothing else, what the Minister has described as his “fallback position” provides the complete, and fatal, answer to the application and renders the ground pressed irrelevant or, perhaps more pointedly, futile.
The basis for the Tribunal’s decision is that the applicant provided false and misleading information in a material particular in relation to his application for the visa. These were found by the Tribunal to be the work letters and the applicant’s employment history that were recorded in his application to the TRA (see [60] at CB 141 to CB 142). These were provided to the Department, as well as to the Tribunal.
Public Interest Criteria 4020(1) requires that, for an applicant to meet the public interest criteria, there must be no evidence before the Minister that the applicant gave, relevantly, information that was false or misleading in a material particular “… to the Minister, an officer [of the Department for Immigration], the Migration Review Tribunal, a relevant assessing authority [such as the TRA] or a Medical Officer of the Commonwealth…”.
I do not comprehend that to be caught by this provision the information must have been given to all on that list. The use of the word “or”, as it appears in PIC 4020(1), would convey, on a plain reading, that to be caught, the provision of the information can be to any one of those in that list. Not to all.
Nor, as the Minister submits, is there anything in PIC 4020 to even suggest that the materiality of the falsity of the information is dependent upon the person, or body, to whom it has been given. In this regard, while some of what was subsequently given to the Department and the Tribunal, while being information given previously to the TRA, was still nonetheless given subsequently to the Department and the Tribunal such as to be caught by PIC 4020(1).
At the time of the Tribunal’s decision therefore the Tribunal was required to have regard to cl.886.225 in the disposition of the application for the visa. At that time, cl.886.225 required, amongst other things, that the applicant satisfied the relevant public interest criteria. In the circumstances, I cannot see error in the Tribunal’s finding that the applicant did not meet the public interest criteria on the basis of having given false or misleading information, at least, to the Minister ([60] at CB 141 to CB 142):
“As the Tribunal has found that is does not accept the applicant was employed as a cook at the three restaurants for the periods claimed, it finds the work references provided to the Department when he made his visa application, which state that he was employed at the Clay Oven and Indioz Café and worked voluntarily at Bombay Fusion, include information that was false or misleading at the time it was given. It also finds the information provided to the TRA indicating he was employed or worked voluntarily as a cook at those restaurants for the periods stated was false or misleading at the time it was given. The Tribunal finds the information about his work at those restaurants is relevant to the criterion in cl.886.223(1), that the skills of the applicant have been assessed by the relevant assessing authority, being the TRA, as suitable for the applicant’s nominated skilled occupation, which is one of the criteria that may be considered when making a decision on his application. The Tribunal finds that there is evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, and a relevant assessing authority (TRA), information that is false or misleading in a material particular in relation to the application for the visa. The Tribunal is not satisfied that the applicant meets PIC 4020(1).”
This is sufficient to dismiss the application to the Court. It is of note that the applicant made no real argument against the Minister’s submissions in relation to this point.
In any event, for the reasons set out below, the application should also be dismissed on the basis that the applicant’s sole ground is not otherwise made out.
The first basis, or as the Minister described it, “limb”, of the applicant’s argument in support of the ground was that there is nothing in Pt.886 (of Sch.2 to the Regulations) dealing with an applicant’s work experience such as to make the provision of the false and misleading documents, as in this case, false or misleading in relation to a material particular. That is, that the information was not relevant to anything in Pt.886.
It is important here to note, in relation to both limbs of the applicant’s argument, that no objection was taken, or argument made in relation to, the Tribunal’s finding that the information provided was false. In response to this point being made by the Minister in oral submissions, the applicant stated that he had not cavilled with the Tribunal’s finding that he had provided fraudulent documents as it was a finding of fact, and was not judicially reviewable. In these circumstances, there is, properly, no argument concerning PIC 4020(5)(a).
The focus of the first limb therefore is on PIC 4020(5)(b). However, the difficulty for the Court in understanding the applicant’s argument here is that, beyond mere assertion, little, if anything, was said about it by the applicant in either his written, or oral, submissions to the Court. The focus of his submissions was on the second limb.
However, it may be that the reason for this is that the first limb is dependent for its efficacy on the second limb in the way arising from what is set out below. Noting, however, the caution that no such link was clearly articulated by the applicant before the Court.
What occurred in Singh may provide the clue to the applicant’s complaint. In that case, also involving PIC 4020 and a question of whether the applicant in that case provided information that was false or misleading, Driver FM found that the Tribunal in that case was in error in finding that the information was false or misleading in a material particular.
What must be understood in relation to Singh is that at the time of the making of its decision (the Tribunal in Singh made its decision on 31 August 2011 – see [6] of Singh) the TRA had not been approved in writing as the relevant assessing authority for the skilled occupation of “cook” (the same skilled occupation as in the current case). That approval, relevant also to the current case, came into operation on 1 October 2011 (see previously at [22] above).
The Court reasoned in Singh that the relevant criteria, with reference to that part of the schedule to the Regulations relevant to the application for the visa in that case, were not enlivened because there was no lawfully approved and specified assessing authority in existence. It could not be said, therefore, that, in those circumstances, there were criteria to which the false misleading information could be said to be material (see Singh at [69]).
In contrast, in the current case, the Tribunal made its decision on 26 March 2012 (CB 130), well after the commencement date of the relevant instrument (IMMI 11/068 – 1 October 2011). In the current circumstances, there was an approved assessing authority to enliven the relevant parts of Pt.886 of Sch.2 to the Regulations.
As the Minister correctly submits (and the applicant did not argue against) the applicant did provide information to the Department, being the information contained in work references and information provided to the TRA (subsequently also provided to the Tribunal), indicating that he had been employed, or worked voluntarily, as a cook at the restaurants. This was relevant to criteria contained at cl.886.223(1) (the applicant’s skills assessment) and cl.886.225(a) (relevant to the public interest criteria).
The Minister is correct to take issue with the applicant’s submission that nothing in Pt.886 dealt with the applicant’s work experience. That is not the relevant question posed for the Tribunal. Rather, that the question for the Tribunal is whether the false or misleading information at the time it was given to one of either the TRA, Department or Tribunal is relevant to the criteria that the Tribunal is required to consider, and did consider, not only when making its decision but, importantly, as at the time of the making of its decision on the application for the visa.
Therefore, I agree with the Minister that the applicant’s first limb of attack, even when drawing on arguments relevant to the second limb to give it comprehension, cannot be accepted as showing error in the Tribunal’s decision.
The second limb of the attack is that PIC 4020 was not relevant to the Tribunal’s consideration because the TRA was not a “relevant assessing authority” and the information would only be relevant if the TRA was a “relevant assessing authority” at the time the information was given to it.
As with the first limb, the applicant’s argument here focuses on the relevant status of the TRA at the time that the applicant gave the impugned information to it, rather than the TRA’s status as at the time of the Tribunal’s decision.
Here attention in the first instance must be given to the relevant criteria that the applicant must satisfy in order to be granted the visa for which he applied. The applicant applied for a “Skilled-Sponsored” visa. This immediately directs attention to Pt.886 of Sch.2 to the Regulations.
The clause in that part relevant in the current circumstances (cl.886.225(a)) requires the applicant to satisfy its requirements as at the time the Tribunal makes its decision. As the Minister submits (and see IMMI 11/068 – RE2, and RE1), the TRA was validly specified as the relevant assessing authority for the skilled occupation of “cook” at the time of the Tribunal’s decision (noting, as set out above, that that was not the case in Singh, or for that matter Dhiman, on which the applicant now relies).
The applicant’s submission is that, at the time of the TRA assessment and when the applicant submitted the information to it, the TRA had not been approved in terms of r.2.26B(1A) of the Regulations (that is, by one of the relevant Ministers) and therefore the information given to the TRA was not false or misleading in a material particular within the meaning of PIC 4020(1).
In essence, the applicant’s argument is to focus attention on the temporal location of the provision of the information to the TRA, rather than to focus on the criterion that the Tribunal was required to consider as at the time it made its decision. At that time, the TRA was validly specified as the relevant assessing authority.
That it was not so specified at some earlier time, being the time of submission to it of the impugned information, does not alter the fact that, as at the time of its decision, cl.886.22 were the criteria that the Tribunal had to relevantly consider and cl.886.225(a), which is a part of those criteria, directed attention to PIC 4020. The applicant’s submission that the focus should have been at an earlier time, as the Minister correctly submits, would have diverted the Tribunal away from the relevant test that it was required to consider as at the time of its decision.
In submissions, the applicant also sought to progress his case with reference to the instruments specifying the TRA as the relevant assessment authority, relevantly to the occupation of “cook”.
In the instrument of 28 September 2008 (IMMI 11/068 – RE2), made by the relevant Minister pursuant to r.2.26B(1) of the Regulations, it is specified, relevantly, that the TRA is the relevant assessing authority for the skilled occupation of “cook” for persons who had lodged visa applications before 1 July 2010. The applicant had lodged his application for the relevant visa prior to that date (21 August 2009 – CB 1 and following).
The applicant argues that this legislative instrument purports to operate retrospectively and, therefore, in breach of s.12 of the LIA. The complaint is expressed as s.12 “… prevents a legislative instrument from operating retrospectively”.
In short, before the Court, I understood the complaint to be that the instrument purported to impose its requirements to a period (before its effect) for which there was no instrument. This, also, resulted in the instrument purporting to appoint the TRA as an assessing authority prior to the date on which the Instrument of Approval came into effect. That specification cannot give the TRA a retrospective status as a relevant assessing authority.
The terms of s.12 are as follows:
“When do provisions of legislative instruments take effect?
(1) Subject to subsection (2), a legislative instrument that is made on or after the commencing day, or a particular provision of such an instrument, takes effect from:
(a) the day specified in the instrument for the purposes of the commencement of the instrument or provision;
…
(2) A legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered and as a result:
(a) the rights of a person … as at the date of registration would be affected so as to disadvantage that person; or
(b) liabilities would be imposed on a person … in respect of anything done or omitted to be done before the date of registration.”
Plainly, to avoid being caught by the proscription in s.12, an instrument can only be said to take effect from the date specified in the instrument for commencement and registration, relevantly, in the Federal Register of Legislative Instruments (see Pt.4 of the LIA). Further, the instrument has no effect if it adversely affects the rights of a person as at the date of registration, or imposes liabilities on a person in relation to things done, or omitted to be done, before the date of registration (Hu at [19] per Smith FM).
I agree with the Minister that the instrument applies to future decision making by the Minister (or his delegates) or the Tribunal in relation to visa applications that have not been determined by 1 October 2011 (Ignatious v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1395; (2004) 139 FCR 254 at [66] per Weinberg J).
The instrument (IMMI 11/068) does not purport to move the requirements that the applicant had to meet to be granted the visa to a time prior to the making of the decision on the visa application, and contrary to what is set out at cl.885.22 to Sch.2 to the Regulations.
In summary, the instrument (IMMI 11/068) does not assert, or purport, to operate from a date prior to its registration. It applied to decisions made, relevantly, by the Tribunal on or after 1 October 2011, in respect of visa applications made before 1 July 2010. There is no “retrospective” application of the TRA as an assessing authority prior to the registration date of the instrument.
The Tribunal made its decision on 26 March 2012. As at that date the instrument was in effect. That meant that as of that date, the TRA was an assessing authority for the applicant’s nominated occupation in relation to the visa for which he applied. As at that date, the applicant had provided false and misleading information to the TRA. In that light, the applicant’s rights to be considered for the visa were not affected. No liabilities were imposed on him prior to the date of decision, and relevantly the date of the registration of the instrument.
Conclusion
The sole ground of the application is not made out. I cannot see jurisdictional error in what the Tribunal has done in the manner asserted by the applicant. The application to the Court, and as amended, should be dismissed. I will make an order accordingly.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 22 January 2013
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