BHATIA v Minister for Immigration

[2015] FCCA 1512

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHATIA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1512

Catchwords:
MIGRATION – Application for judicial review of decision of the Migration Review Tribunal affirming the Delegate not to grant a Skilled Residence visa – consideration of Public Interest Criterion 4020 – false information/ reference – according natural justice to applicant – Tribunal’s role to attribute weight to evidence – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489

Applicant: RAHUL BHATIA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 774 of 2014

Judgment of: Judge McGuire

Hearing date: 2 June 2015

Date of Last Submission: 2 June 2015

Delivered at: Melbourne

Delivered on: 26 June 2015

REPRESENTATION

Solicitors for the Applicant: In Person

Counsel for the Respondents: Mr Smyth

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application for judicial review filed 28 April 2014 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 774 of 2014

RAHUL BHATIA

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 a decision of the Migration Review Tribunal (“the Tribunal”) made 7 April 2014 affirming a decision of the Minister’s Delegate not to grant the applicant a Skilled Residence (Class VB) visa (“the visa”). The application discloses eight grounds of complaint, each dealt with below.

2. The applicant appears in person before this Court. He did not provide written submissions but did offer some short oral submissions in support of his application.

3. Upon the matter being called on, the applicant made an oral application for an adjournment. The Minster had been put on notice as to the application. That application was heard and refused with short separate reasons given.

4. The substantive application for relief is opposed. The Minister has provided written submissions.

Background

1. The applicant is from India. He applied for a visa on 28 January 2009. He nominated pastry cook as his skilled occupation. In support he submitted a pre-migration skills assessment application. The assessment was granted inter alia on a reference from Bakers Hut in Glenroy dated 26 March 2008 and comprehensive in its content.

2. On 4 January 2012 the Department requested further, specific and more detailed information from the applicant.

3. On 5 January 2012 the Department again wrote to the applicant advising him in respect of public interest criterion (PIC) 4020 and that the information submitted to Trades Recognition Australia (TRA) in support of the skills assessment was false in content and that the assessment had been fraudulently obtained. The letter invited the applicant to comment.

4. The applicant responded on 28 January 2012 providing a copy of his submission of 28 January 2011 to the visa case officer and inclosing a letter of 14 January 2011 from a Psychologist apparently corroborating his work experience at the bakery together with pay slips, a written reference from Yam Yam Café and Bakery dated 22 January 2012 and his curriculum vitae details.

5. The Delegate refused the visa application on 4 February 2012 and the applicant lodged an application for a review before the Tribunal on 20 February 2012. The Tribunal invited the applicant to appear before it on 31 July 2013. On 15 August 2013 the Tribunal affirmed the Delegates decision. On 14 November 2013 a consent order was made quashing that decision by Writ of Certiorari. The application was remitted to the Tribunal for re-hearing.

6. The second Tribunal hearing was listed for 6 February 2014. The applicant was again invited to attend and did so represented by his migration agent.

7. Prior to the hearing the applicant, through his representative, provided a request for access to Departmental and MRT files pursuant to s.362A of the Migration Act 1958 (Cth) (“the Act”).

8. The Tribunal’s reasons at [10] also disclose that the Tribunal summoned the following on 6 February 2014:

   ·All associated Departmental files and copies of all evidence (TRIM and ISCE recorded, file notes, investigation reports etc) that lead to the Delegate’s finding that the applicant’s work reference from Bakers Hut may have been fraudulently issued to him;

   ·Any document or record that confirms that the Applicant’s work reference from Mr Deniz Kordemiar of Bakers Hut was found in the possession of (the informant) as a result of the search warrant executed at (the informant’s) residential premises and that his work reference was a Court exhibit in the proceedings brought against (the informant);

   ·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 (the informant) as a result of the search warrant executed at his residential premises.

9. On 21 February 2014 the Tribunal wrote to the applicant inviting comment or response to the various information which implicated a person in the creation of false information or bogus documents contemporaneous to and from the facility which offered the applicant’s reference. The information disclosed the seizure of a USB memory stick. That information further implicated the owner of Bakers Hut. (There have been, and perhaps continue to be, proceedings in the County Court of Victoria in relation to the person from whom the USB stick and other evidence was allegedly obtained. The presiding Judge has made injunctive orders in respect of the publications of certain material from those proceedings. Although I am uncertain as to the intended limitations of those Orders, I will not name the person in these reasons but rather refer to him at all times as “the informant”).

10. On 31 March 2014 the applicant’s migration agent respondent at length. (CB 235).

11. On 9 April 2014 the Tribunal advised the applicant of its decision made 7 April 2014 affirming the Delegates decision not to grant the visa.

The Tribunal’s Decision.

1. At [25] the Tribunal correctly identified the issue as:

   The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.886.225 for the grant of the visa. Broadly speaking, this requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or 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 12 months before the application was made: PIC 4020(1); and

   ·the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made to the present: PIC 4020 (2).

2. At [26-33] the Tribunal identified the requirements of PIC 4020.

3. At [41] the Tribunal detailed the information before it.

4. At [42-44] the Tribunal observed:

   In view of the question posed by subclause 4020(1), the Tribunal considers that it is appropriate to contemplate the information before it having regard to the context of all the surrounding circumstances relating to the applicant’s claimed work experience at Bakers Hut. This is because such circumstances provide a background that assists in the objective assessment of the relevant information before the Tribunal.

5. At [45] and following the Tribunal noted factors giving probity to the information including:

   a)i) That the informant had made admissions as to fraudulent conduct resulting in a criminal Court conviction in 2011;

   ii) Those admissions implicated Bakers Hut in respect of a false work reference [46];

   iii) Other links between the applicant and the informant including an admission by the applicant of his direct approach to the informant seeking work experience and the informant referral of the applicant to Bakers Hut. Further, the period of the informant’s admitted criminal behaviour coincided in time with the applicant’s work experience at Baker Hut;

   iv) The applicant’s work reference was located on the USB memory stick seized from the informant’s residence [49] and identified in substance as the applicant’s submitted work reference [50] albeit in different wording and style.

6. At [51] the Tribunal noted the applicant’s claim that his employer kept a record of his hours in a log book but such records had not been produced. However, at [52] the Tribunal accepted that the applicant’s work was unpaid and hence he was not in a position to obtain pay slips or tax statements.

7. The Tribunal at [55-57] consciously engaged and weighed the competing evidence. There followed at [60-64] the Tribunal’s findings of fact and credit culminating at [64] with:

   As a result, the Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to his application for a subclass 866 visa. Accordingly the Tribunal finds that the applicant does not meet the requirements of paragraph 4020(1)(a).

8. The Tribunal then, and after the above finding, turned to consider the waiver available under subclause 4020(4) should there be appropriate compelling or compassionate circumstances. The Tribunal’s reasons reference well known authorities and the Tribunal properly notes, there being no statutory definition of “compassionate or compelling”, such circumstances are a question of fact in each case.

9. In this respect the Tribunal noted the applicant’s relationship with his brother and the brother’s own circumstances. It noted in the period during which the applicant had been in Australia [70]. The Tribunal also had before it and considered a psychological assessment of the applicant [71].

10. At [72] the Tribunal found:

    Based on the evidence before it, the Tribunal is not satisfied that these circumstances reach an appropriate threshold as to amount to compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen justifying the grant of the visa. Accordingly, the Tribunal has determined not to waive the requirements in subclause PIC 4020(1).

The Application before this Court.

Ground 1- the MRT made an error of law, procedure and failed to accord natural justice to the Applicant in that the materials summoned by the MRT as per paragraph 10, 19 and 21 of the Decision Record were not disclosed to the Applicant prior to the Hearing so the Applicant may rebut and comment on such materials.

1. The Tribunal’s reasons disclose that the hearing took place on 6 February 2014. The materials were requested by the Applicant on 21 January 2014 the summons issued on the day of the hearing being 6 February 2014. The materials were received post the hearing on 17 and 21 February 2014. The Tribunal then invited comment from the applicant pursuant to s.359A of the Act and hence complied with the Tribunal’s natural justice obligations. Those invitations were issued on 21 February and 17 March 2014.

2. The Tribunal’s compliance with the provisions of s.359A of the Act discharge its natural justice obligations given that the division is an exhaustive statement of the requirements for natural justice pursuant to s.357A.

3. The information provided in the summons material post hearing was not “new” in that the issue of the informant’s alleged involvement in respect of false work reference was an issue prior to the hearing and one made known to the applicant and indeed one which elicited a response from the applicant prior to the hearing. As the High Court observed in Minister for Immigration and Citizenship v SZKTI[1] at [51]

   Whether an issue must be raised with an applicant for the purposes of a further hearing under s 425(1) will depend on the circumstances of each case. Matters may arise requiring an invitation to a further hearing. However, that is not the case in the present matter. Here, Mr Cheah's evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing. This distinguishes the facts here from those considered in SZBEL… Further, s 422B of the Act suggests that there is no residual procedural fairness requirement to give another hearing extraneous to Div 4 of Pt 7. If there were any extraneous right to procedural fairness, as suggested by the first respondent, there was no breach of the obligation here. Importantly, the first respondent had an opportunity to deal with Mr Cheah's information by responding (as he did) to the letter from the RRT conforming with s 424A.

   [1] (2009) 238 CLR 489

4. Consequently, I am not satisfied that the applicant has made out Ground 1 of the complaint in that he was denied natural justice.

Ground 2- The MRT made an error of law in failing to place weight on the evidence as per Paragraph 24 of the Decision Record that the Applicant’s work reference letter and the work reference letter seized by DIBP were different.

1. The Tribunal’s reasons at [24] state:

   On 31 March 2014, the applicant’s representative provided applicant’s comments on or response to information contained in the Tribunal’s letter of 17 March 2014, stating that the information concludes that the work reference letter submitted to the Department and the one seized during the search warrant are not identical in format and content. The applicant’s representative reiterated arguments contained in his submissions of 8 March 2014; stated that it is possible for the Tribunal to conclude that (the informant) drafter a number of work reference letters for bakers Hut and that the employer simply used the same draft work reference letter to give to the review applicant (Tribunal folios 111 and 112). He further submitted on (the informant’s) USB memory stick, was different to the one provided to the Department.

2. It is well established that the attributing of weight to evidence is a function to the determiner of fact being, in this case, the Tribunal in its process of making findings of fact and credit.[2]

   [2] Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at [39-41].

3. The wording of [24] is not strictly evidence but rather a statement of the applicant’s submissions. The evidence is the difference in wording or style between the applicant’s own work reference and the “reference” seized on the USB stick. That difference is noted at [50] of the Tribunal’s reasons as follows:

   The advice received from National Criminal Investigations indicate that details in terms of length and dates of employment, as well as duties performed contained in the work reference letter seized during the warrant, are identical with the details contained in the work reference letter the applicant submitted to the TRA and the Department. Hence, the information contained in the letter submitted to the TRA and the Department was identical to information contained in the wok reference letter found on (the informant’s) USB memory stick that was seized under the search warrant, despite the fact that the work reference letter seized during the warrant is worded different and in a different order in terms of the task performed.

4. The Tribunal’s consideration of the evidence on this issue continues at [51-64] which is clearly a process of engaging, considering and weighing the competing evidence including that given or adduced by the applicant. In my view, the statement of the evidence at [50] should not be read in isolation but preferably and contextually from paragraph [45] and following where the Court indicates its process of consideration thus:

   In considering whether the information before the Tribunal has probative value, given the competing account presented by the applicant, the Tribunal notes that there are a number of factors that do support a finding that the information does have probative value.

5. There follows a consideration of factors for and against the applicant’s claim.

6. The Tribunal is the determiner of fact and credit. I am satisfied that the Tribunal’s reasons demonstrate an engagement and consideration of all of the evidence including the difference in wording and style in the reference submitted by the applicant to that seized on the USB stick.

Ground 3- the MRT made an error of law in determining at Paragraph 16 of the Decision Record that the applicant was already subject to PIC 4020 and moving onto determining whether the applicant could show grounds for a waiver. The MRT should have first assessed whether PIC 4020 applied.

1. [16] of the Tribunal’s reasons says:

   The Tribunal explained to the applicant the application of public interest criterion 4020 to his case. As a result, the Tribunal invited the applicant to indicate if he had any compelling circumstances that affected the interest of Australia, or any compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, justifying the granting of the visa to him

2. [16] of the Tribunal’s reasons should be read within the proper and total context of the whole reasons. Contrary to the applicant’s assertion, those reasons disclose clearly that the Tribunal firstly and separately considered the requirements of PIC 4020 at [55-64]. A discrete finding in respect of 4020(1)(a) appears at [64] as follows:

   As a result, the Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to his application for a subclass 866 visa. Accordingly, the Tribunal finds that the applicant does not meet the requirements of paragraph 4020(1)(a).

3. There then follows a heading “The Waiver in Subclause 4020(4)”.

4. The Tribunal at [65-70] then discretely but in detail address the waiver provisions.

5. Consequently, I reject the applicant’s argument that [16] demonstrates confusion of the obligation to make separate and discrete considerations or that the Tribunal might have reached findings in respect of 4020(1) without proper consideration. It follows that the ground of appeal must fail.

Ground 4- The MRT made an error of law in failing to place weight on the matter that applicant was not named by (the informant) as a person for whom fraudulent or bogus documents were prepared. The MRT made this assumption without proper evidence.

1. Under the heading “What is the Information before the Tribunal?” at [41] the Tribunal includes:

   The fact that the applicant’s work reference from Bakers Hut was marked as “Exhibit Master Number 2 and 9” on a spreadsheet referring to the applicant and work references found on the USB stick seized from (the informant’s) premises under search warrant.

2. Specifically, the applicant’s argument here is contradicted by evidence before the Tribunal and noted at [49] thus:

   In addition, not only was the applicant’s 900 hours’ work experience purportedly undertaken with an employer implicated in (the informant’s) fraudulent activities, but a work reference in the applicant’s name from Bakers Hut was found by investigators on the USB memory stick seized from (the informant’s) residence.

1. The failure of the informant to specifically name the applicant is in my view immaterial in an evidentiary sense or at least isolation. It is clear that the Tribunal considered various pieces of information and evidence both for and against the contentions of the applicant. The Tribunal is the determiner of fact and credit. It is for the Tribunal to attribute weight to the evidence.

2. Secondly, I accept the submission of Counsel of the respondent that at [59] of its reasons the Tribunal correctly observed as to the wording of the section:

   Notwithstanding the fact that the Tribunal found the applicant to be a generally credible witness at the hearing, the evidence in this case casts doubts upon the nature and duration of the applicant’s claimed work experience at Bakers Hut in 2007/08. In addition, the Tribunal observes that the question posed by subclause 4020(1) requires it to make a “no evidence” finding regarding the matters set out in this provision.

3. I find no merit in this ground of appeal.

Ground 5- The MRT made an error of law in Paragraph 47 of the Decision Record in assuming that simply because the applicant sought assistance from (the informant) for work placement and was recommended Bakers Hut among other employers, the applicant had participated in the provision of bogus documents.

1. [47] or the Tribunal’s reasons states:

   Secondly, there are also other facets to the information before the Tribunal that link the applicant to the fraudulent activities of (the informant). For example, the applicant stated in his oral evidence that he approached (the informant) seeking help in obtaining work experience required for skills assessment purposes. The applicant was referred to Bakers Hut by (the informant). The applicant also claimed that he undertook his work experience at Bakers Hut from February 2007 to February 2008, which falls well within the period 1 November 2006 to 29 September 2009 when (the informant) engaged in his fraudulent activities.

2. I do not read [47] as constituting assumptions or findings. Rather, it is demonstrative of the engagement of the Tribunal with the evidence in its consideration. The fact that the paragraph commences with the word “Secondly” is itself indicative of the paragraph being properly read within context rather in isolation. In any event, I do not accept that the paragraph offers any conclusions or assumptions not available to the Tribunal on the evidence.

3. I agree with Counsel for the first respondent that this ground is misconceived and has no merit.

Ground 6- The MRT made an error of law at Paragraph 5 of the Decision Record in that the conviction of (the informant) implicated the applicant. The applicant was not part of the County Court proceedings and did not have the opportunity to cross-examine (the informant) in the criminal proceedings and neither was he named by (the informant) in the evidence of documents comprising the criminal proceedings.

1. At [56] the Tribunal says:

   However, the Tribunal observes that the applicant’s knowledge of the physical location and appearance of Bakers Hut and his subsequent work experience as a pastry chef at Yam Yam Café and bakery, does not necessarily detract from the probative value of the admissions (the informant) made to the Australian authorities, which were ultimately accepted and resulted in his conviction. The Tribunal further notes that (the informant) specifically informed the authorities that many students did take the time to familiarise themselves with the business where they falsely claimed to have completed their 900 hours’ work experience, and that the employers named by him, including Mr Kordemir, were complicit in this fraud.

2. I am of the view that this ground again is misconceived. It errs in taking one piece of evidence in isolation. The ultimate conviction of the informant is not in dispute. The Tribunal had before it evidence of “links” between the informant and the applicant’s employer and also between the applicant himself and the informant. The Tribunal states that there was evidence both for and against the applicant’s contentions as to his work experience and reference. The circumstances of the informant and his conviction are a part only in the whole of the evidence. I am satisfied that the Tribunal considered all of the evidence and entered into a rational process of consideration leading to findings that were available to it on the evidence as a whole.

3. The fact that the applicant did not have the opportunity to “cross-examine” the informant in the County Court shows a fundamental misunderstanding of the roles various in criminal Courts.

4. I am satisfied that there is no merit to this ground of appeal.

Ground 7 - The MRT made an error of law in Paragraph 57 of the Decision Record in that the MRT placed two much weight on circumstantial evidence and suggested that it preferred the evidence and findings of the Department of Immigration and Australian Federal Police.

1. This ground of appeal is again a challenge to the Tribunal’s role in attributing weight to evidence and proceeding to make findings of fact and credit. It is not for this Court to drift into considerations of relative weight of evidence be that circumstantial or otherwise. This is not an argument as to illogicality or unreasonableness in the decision. it is an argument only to the allegations of weight. To this end, this ground of appeal is misconceived and must fail.

Ground 8 – The MRT failed to consider as a matter of Law at Paragraph 70 of the Decision Record that the applicant had a brother in Australia who was a resident and citizen and that he was close to his brother and would be separated if a waiver was not granted. The MRT failed to give sufficient weight to the family relationship, close ties, and distance of separation and likely affects.

1. Again, and in respect of the last sentence of this ground it is for the Tribunal to consider attributing weight to the evidence and in doing so will not fall into error as the finder of fact should the process undertaken be a rational and logical one.

2. The Tribunal at [70] says:

   In relation to the provisions of paragraph 4020(4) the Tribunal notes that the applicant stated that his brother recently became an Australian citizen who intends to set up a business in Australia and will need the applicant to help him operate the business; that he has a close relationship with his brother who will be adversely affected if the applicant is required to leave Australia. He further stated that he has been in Australia for more than seven years and is well settled in this country.

3. Further, reference in respect of the applicant’s relationship with his brother appears at [17] of the reasons and, in fact, oral evidence was received from the applicant’s brother as referenced at [18].

4. [70] appears contextually under the heading “The Waiver in Subclause 4020(4)” and in [65-72] the Tribunal noting authorities properly set out the requirements of “compelling circumstances” and “compassionate or compelling circumstances” I consider the use of the term “notes” at [70] as opposed to the word “considered” at, for example, [71] to be of no significance. The Tribunal’s reasons should and do demonstrate an engagement with the claims and evidence of the applicant as opposed to a mere re-instatement of the claim. I am satisfied that the applicant’s claims in respect of his relationship with his brother were therefore engaged and considered by the Tribunal leading to the finding at [72] beginning with and demonstrated by the phrase “Based on the evidence before it…”.

5. I find no merit in this ground of appeal.

Conclusion

1. I am satisfied that no jurisdictional error infects the Tribunal’s reasons and findings. Consequently, the application will be dismissed with an Order for costs.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 26 June 2015