FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRAR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1168 |
| Catchwords: MIGRATION – Application to review decision of Migration Review Tribunal (now the Administrative Appeals Tribunal) – whether Tribunal erred in considering whether to cancel visa on the basis of non-compliance with s.103 of the Migration Act 1958 (Cth) – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.97, 101, 103, 107, 108, 109, 359A Migration Regulations 1994 (Cth), reg.2.41 |
| Applicant: | MANJINDER SINGH BRAR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2502 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 20 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr JR Young |
| Solicitors for the Applicant: | G&S Law Group |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2502 of 2013
| MANJINDER SINGH BRAR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 10 September 2013 affirming a decision of a delegate of the First Respondent to cancel the Applicant’s Subclass 886 (skilled-sponsored) visa.
The Applicant is a citizen of India who came to Australia in 2006. He applied for a Skilled (Residence) (Class VB) visa on 24 May 2008. In support of that application he provided the Department of Immigration with various documents, including a positive skills assessment for the occupation of “cook” issued by Trades Recognition Australia (TRA). The Applicant was granted the visa on 31 March 2009.
Relevantly, the evidence provided to TRA as part of the application to obtain a skills assessment included a work reference under the name of Dom’s Family Bistro and Pizza (Dom’s) which stated that Mr Brar had undertaken more than 900 hours of unpaid work as a cook at Dom’s.
Following a departmental investigation (into the provision of false work reference letters) the Department issued the…
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Details
- Case
- [2016] FCCA 1168
- Decision Date
CaseChat Overview and Summary
This matter concerned an application by Mr. Brar against the Minister for Immigration, heard by Judge Barnes. The dispute arose from the Minister's decision to refuse Mr. Brar's visa application, which was based on allegations that Mr. Brar had provided false or misleading information regarding his work experience to the relevant assessing authority, the Trades Recognition Australia (TRA). Specifically, the Minister contended that work reference letters submitted by Mr. Brar were fraudulent, leading to a bogus skills assessment, and that this constituted a failure to comply with provisions of the Migration Act 1958 (Cth).
The central legal issues before the court were whether the delegate's findings, as articulated in the Notice of Intention to Consider Cancellation (NOICC), were supported by the evidence presented, and whether Mr. Brar had indeed failed to comply with sections 101(b) and 103 of the Migration Act. Section 101(b) relates to the prohibition of providing incorrect answers in a visa application, while section 103 concerns the presentation of bogus documents to departmental officers. The court was required to assess if the evidence of non-compliance, particularly concerning the work reference letters from Dom's Family Bistro and Pizza and Café Greco, and the subsequent TRA skills assessment, was sufficient to justify the Minister's decision.
Judge Barnes reasoned that the NOICC's discussion of evidence under the heading "Section 103 – Evidence of non-compliance" was intrinsically linked to and should be read in conjunction with the preceding discussion under "Section 101(b) – Evidence of non-compliance". The court noted that the NOICC detailed information suggesting that work reference letters from Dom's Family Bistro were false and that no international students had completed work experience there. It also highlighted that the department had obtained the work reference letter from Dom's Family Bistro, which was identical to the one submitted by Mr. Brar, and that a reference letter from Café Greco was not provided to TRA. The delegate concluded that the work reference letter from Dom's Family Bistro was fraudulently obtained, that Mr. Brar provided this fraudulent reference to TRA, rendering the skills assessment a bogus document under section 97 of the Act, and that by presenting this bogus assessment to a departmental officer, Mr. Brar failed to comply with section 103. The court found that the delegate's findings were based on the evidence presented and that the reasoning regarding the fraudulent nature of the documents and the subsequent non-compliance with the Act was legally sound.
The central legal issues before the court were whether the delegate's findings, as articulated in the Notice of Intention to Consider Cancellation (NOICC), were supported by the evidence presented, and whether Mr. Brar had indeed failed to comply with sections 101(b) and 103 of the Migration Act. Section 101(b) relates to the prohibition of providing incorrect answers in a visa application, while section 103 concerns the presentation of bogus documents to departmental officers. The court was required to assess if the evidence of non-compliance, particularly concerning the work reference letters from Dom's Family Bistro and Pizza and Café Greco, and the subsequent TRA skills assessment, was sufficient to justify the Minister's decision.
Judge Barnes reasoned that the NOICC's discussion of evidence under the heading "Section 103 – Evidence of non-compliance" was intrinsically linked to and should be read in conjunction with the preceding discussion under "Section 101(b) – Evidence of non-compliance". The court noted that the NOICC detailed information suggesting that work reference letters from Dom's Family Bistro were false and that no international students had completed work experience there. It also highlighted that the department had obtained the work reference letter from Dom's Family Bistro, which was identical to the one submitted by Mr. Brar, and that a reference letter from Café Greco was not provided to TRA. The delegate concluded that the work reference letter from Dom's Family Bistro was fraudulently obtained, that Mr. Brar provided this fraudulent reference to TRA, rendering the skills assessment a bogus document under section 97 of the Act, and that by presenting this bogus assessment to a departmental officer, Mr. Brar failed to comply with section 103. The court found that the delegate's findings were based on the evidence presented and that the reasoning regarding the fraudulent nature of the documents and the subsequent non-compliance with the Act was legally sound.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Then, under the headings “Section 101(b) – Evidence of non-compliance” and “Section 103 – Evidence of non-compliance”, the NOICC addressed the evidence before the delegate. In support of his contentions in relation to grounds 1 and 2 the Applicant referred to the part of the description of “evidence” that appeared under the second of these headings: “Section 103 – Evidence of non-compliance”. However, it is clear that what was said in that part of the NOICC followed on from and should be read in light of the discussion of evidence in relation to s.101(b) of the Act (which relevantly provides that no incorrect answers can be given in a visa application form). These parts of the NOICC stated:Section 101(b) – Evidence of non-complianceOn 11 November 2009, the following contrary information came to the attention of the department. During an interview conducted between department investigators and a mediator (sic), it was stated that the work reference letters from Dom’s Family Bistro were false and that the owners of the business had been paid for each reference letter falsely created. The informant also claims that no international students had completed work experience at Dom’s Family Bistro. The department attempted to contact the owners of the restaurant and left repeated messages however it appears the owners are reluctant to contact the department to verify the work references lodged with TRA. Based on the available evidence, it is suspected you provided incorrect information to TRA in relation to the 900 hours work experience. The department has since obtained the work experience reference letter you provided to TRA. The letter on Dom’s Family Bistro & Pizza letterhead is the same as the letter you submitted to the department in your visa application. Your work reference letter from Café Greco which you submitted to the department in your visa application, was not provided to TRA for assessment. The department suspects the information provided to TRA in relation to your work experience at Dom’s Family Bistro & Pizza is false or misleading in a material particular. Section 103 – Evidence of non-complianceThe department finds that the work reference letter from Dom’s Family Bistro & Pizza was fraudulently obtained. You then provided the fraudulent work reference to TRA for your pre-migration skills assessment. The skills assessment was obtained through false and misleading statements and therefore is considered to be a bogus document within the meaning of section 97 of the Act.You then presented the positive skills assessment from TRA to an officer of the department who was performing a function under the Act (that function being assessing the client’s visa application).In giving the bogus TRA skills assessment, to an officer of the department, you have failed to comply with section 103. The Tribunal’s description of the evidence under the heading “Section 103 – Evidence of Non-Compliance” clearly follows on from what was stated before that heading, although it is the case that the delegate stated that “the department finds” that the work reference letter from Dom’s “was fraudulently obtained”, that Mr Brar then provided “the fraudulent work reference” to TRA for the skills assessment and that the skills assessment “was obtained through false and misleading statements” and therefore that it was considered to be a bogus document within the meaning of s.97 of the Act. After referring to presentation of the skills assessment from TRA to an officer of the Department, the notice went on to state that, in giving the bogus TRA skills assessment to an officer of the Department “you have failed to comply with section 103”.
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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