Birdi v Minister for Immigration

[2015] FCCA 1088

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIRDI & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1088

Catchwords:
MIGRATION – Judicial review of a decision of the Migration Review Tribunal – Indian nationals – findings that Applicant did not give truthful answers to question in application for visa – no jurisdictional error revealed – application dismissed with costs.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.16.01

Migration Act 1958 (Cth), ss.101, 107 and 109

Migration Regulations 1994 (Cth), reg.2.41

First Applicant: MANMOHAN SINGH BIRDI

Second Applicant: JASBIR KAUR BIRDI

Third Applicant: KIRANDEEP KAUR BIRDI

Fourth Applicant: AMANDEEP SINGH BIRDI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 88 of 2014

Judgment of: Judge Simpson

Hearing date: 2 December 2014

Date of Last Submission: 2 December 2014

Delivered at: Adelaide

Delivered on: 30 April 2015

REPRESENTATION

The First Applicant: In person

Solicitors for the Respondent: Mr R Prince for the Australian Government Solicitors

ORDERS

1. The Application filed on 21 March 2014 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The Applicants shall pay the First Respondent’s costs fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 88 of 2014

MANMOHAN SINGH BIRDI

First Applicant

JASBIR KAUR BIRDI

Second Applicant

KIRANDEEP KAUR BIRDI

Third Applicant

AMANDEEP SINGH BIRDI

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) which affirmed a decision of a Delegate of the Minister to cancel the visa, being a Skilled-Independent Regional (Provisional) visa (“the visa”) of the First Applicant.

Background

1. The First Applicant is a national of India. 

2. On 24 April 2009, he lodged an offshore application for the visa.  The First Applicant’s wife and two children were named as secondary applicants to that application.  The Application contained details about the Applicant obtaining a skills assessment on 28 November 2006 from Trades Recognition Australia in the nominated occupation of welding.  The application also contained details of an employment history in the trade of welding, including an affidavit of his employer, a Mr Baldev Singh, in India.  On the basis of this and other information, the Applicants were granted visas on 6 August 2009.

The Delegate

1. In August and September 2011, the Department received allegations that, firstly, the First Applicant was not a welder; secondly, documents relating to his work experience as a welder were fabricated; and finally, that in fact he had been practising as a doctor in India rather than a welder.

2. On 19 October 2011, a Departmental officer spoke to the First Applicant about his technical knowledge of welding.  The officer considered that he had very limited knowledge of welding techniques.

3. On 17 February 2012, the First Applicant was notified by letter that a Delegate of the Minister was considering cancelling the visa pursuant to s.107 of the Migration Act 1958 (Cth) (“the Act”) and sought a response.

4. On 8 March 2012, the Applicants’ representative provided a response to the s.107 Notice. The representative asserted that the First Applicant worked part-time as a welder upon the recommendation of an agent in India. The recommendation was that the chance of the Applicant being granted a visa to travel to Australia would be increased should he have qualifications in a relevant trade.

5. It was asserted by the representative that the First Applicant was a qualified Homeopath who operated his own clinic from 1991 to 2009, that he undertook work as a welder in 2004 to 2005 and that he would work 7 days a week at his clinic and a further 7 hours a day for 6 days a week as a welder.

6. On 8 June 2012, the Delegate cancelled the visa pursuant to s.109 of the Act, on the basis that the First Applicant did not comply with s.101(b) of the Act as he provided incorrect information on his application for the visa.

The Tribunal

1. On 20 June 2012, the Applicants applied to the Tribunal for review of the Delegate’s decision.  On 24 July 2013, the Tribunal invited the Applicants to appear before it.  The hearing was scheduled to take place on 28 August 2013 but was adjourned to 18 December 2013 at the Applicants’ request.

2. On 18 December 2013, the Applicants appeared before the Tribunal to give evidence and present arguments.  They were assisted by an interpreter.

3. On 21 February 2014, the Tribunal affirmed the decision to cancel the visa.

The Tribunal’s decision

1. The Tribunal found that the s.107 Notice complied with all statutory requirements. It then noted that the issue before it was whether there was non-compliance with s.101 of the Act in the way described in the s.107 Notice, and if so, whether the visa should be cancelled.

2. The Tribunal found non-compliance with s.101 of the Act by the Applicants in the way described in the s.107 Notice. In particular, it found:

   a)The information provided at questions 58, 62, 70 and 124 of the visa application, at question 20 of the Form 80, and contained in the work references and certain affidavits, including an Affidavit of Baldev Singh, were incorrect and fraudulent.  The Tribunal found that the First Applicant was not, and had never been, a skilled welder.  In the assessment of the Tribunal, the First Applicant’s answers to relevant questions on the Application form and in the supporting documents premised on that basis were fraudulent.;

   b)The First Applicant provided incorrect answers to questions concerning welding equipment and techniques because he had little knowledge of the welding trade;

   c)It was not plausible that the First Applicant had not worked in the field of welding since arrival in Australia if he indeed was a skilled welder as claimed.  It was also not accepted that the First Applicant was genuinely undertaking work in this field in Sydney when he continued to reside in South Australia.  The Tribunal found that his lack of skill was the reason why he had not worked in that field in Australia;

   d)The First Applicant’s evidence was unreliable given a previous representative conceded incorrect information had been provided and it was not accepted that those concessions were made without his instructions or understanding;

   e)It was not plausible that the Applicant worked both as a doctor in a clinic bearing his name, as well as for a further 6 hours per day as a welder; and

   f)The documentation submitted to the Tribunal (ie, tax returns, salary receipts, further affidavit and supporting statements) demonstrated that the answers given in the visa application were in fact not correct but rather were a further fabrication.

3. The Tribunal then proceeded to consider whether the visa should be cancelled pursuant to s.109 of the Act. It noted that cancellation in this context is discretionary as there were no mandatory cancellation circumstances prescribed under s.109(2). It noted that in considering the exercise of this power, the Tribunal must consider the Applicant’s response (if any) to the s.107 Notice in compliance with s.109(1)(b) and (c). It noted that the prescribed circumstances that had to be considered were as set out in reg.2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”) and that they were as follows:

   a)The correct information;

   b)The content of the genuine document (if any);

   c)The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;

   d)The circumstances in which the non-compliance occurred;

   e)The present circumstances of the visa holder;

   f)The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

   g)Any other instances of non-compliance by the visa holder known to the Minister;

   h)The time that has elapsed since the non-compliance;

   i)Any breaches of the law since the non-compliance and the seriousness of those breaches; and

   j)Any contribution made by the holder to the community.

4. The Tribunal then proceeded to consider whether the visa should be cancelled pursuant to s.109 of the Act. It considered each of the circumstances prescribed in reg.2.41 of the Regulations, as detailed above, as well as the matters set out in the Department’s Procedural Advice Manual (“PAM3”) ‘General visa cancellation powers’ in deciding whether to exercise its discretion to cancel the visa. Including whether visa cancellation may result in Australia breaching its international obligations.

5. The Tribunal reached the view that the First Applicant’s visa should be cancelled given that the foundation for the grant of the visa was tainted by an orchestrated and blatant deception as to the First Applicant’s skilled occupation and that he continued to deceive the Australian government in the course of the Tribunal proceedings.

6. The Tribunal concluded by affirming the decision to cancel the visa.

7. The Applicant has only one ground of review:

   “I worked as welder in India at New G.N.B. Industries and got my skills assessment approved from Trades Recognition Australia.  An unnamed source who doesn’t want us to remain in Australia and due to personal grudges, out of enmity and jealousy told Immigration that I was not a welder and the documents submitted were fabricated.  But when immigration contacted my employer he stated to immigration that I worked with his company for welder for 20 years. I studied Homeopathic course but at that time I also worked as a part time welder.  I was fully trained in welding in 1989.  My wife Jasbir Kaur had a certificate of Electro Homeopathy.  She opened a homeopathic shop and she started working there.  I was also attending the shop after hours and on Sundays.  I want to submit my application to Court to look into my case and do justice. [sic]”

8. It will be seen that the sole ground is not a proper ground for judicial review.  It is an attempt to seek a merit review, which is not open to the Court to consider. 

9. The Tribunal, in my view, correctly considered the Applicant’s documentary and oral evidence and reached a conclusion that was open to it on all of the evidence.  The Tribunal simply did not believe the First Applicant’s claims.  The Tribunal is not required to accept uncritically any and all claims made by the Applicant.

10. In my opinion, the Tribunal’s conclusion was not unreasonable, irrational or illogical.  It was an inevitable conclusion for the Tribunal’s to reach.  Clearly, in this case, there is no jurisdictional error shown in the Tribunal’s decision and the application should be dismissed.

Conclusions and orders

1. The Application filed on 21 March 2014 should be dismissed with costs.

2. I make the orders to be found at the beginning of these reasons.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 30 April 2015