CHAI v Minister for Immigration

[2018] FCCA 1002

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHAI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1002

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Skilled (Residence) (Class VB) (subclass 887) visa – PIC4020 – bogus document – false or misleading information.

Legislation:

Migration Regulations 1994, reg.1.15A, public interest criterion 4020 of Schedule 4

Applicant: SHENGCHAN CHAI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 11 of 2016

Judgment of: Judge Riley

Hearing date: 7 February 2018

Date of last submission: 7 February 2018

Delivered at: Melbourne

Delivered on: 7 February 2018

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Tom Smyth

Counsel for the second respondent: No appearance

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The application filed on 5 January 2016 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 11 of 2016

SHENGCHAN CHAI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from the transcript)[1]

[1]     Reasons for judgment were given orally on 7 February 2018. The applicant filed an application for an extension of time to appeal on 5 March 2018. The registry advised chambers on 18 April 2018 that the applicant had applied for an extension of time to appeal. Chambers ordered a transcript of the reasons for judgment on 18 April 2018. Auscript provided the transcript of the reasons for judgment on Thursday 19 April 2018. The reasons for judgment were settled and sent to the applicant and the Minister by email and post on Monday 23 April 2018.

1. This is an application to review a decision of the Administrative Appeals Tribunal (“the Tribunal”).  The applicant applied for a Skilled (Residence) (Class VB) (subclass 887) visa. 

2. The criteria for that visa included that the applicant had worked full time in a specified regional area for 12 months, and that  the applicant met public interest criterion 4020 (“PIC4020”) of Schedule 4 of the Migration Regulations 1994 (“the Regulations”). PIC4020 required that there be no evidence that the applicant had provided in relation to a visa application information that was false or misleading in a material particular or a bogus document.  A delegate of the Minister for Immigration and Citizenship and the Tribunal found that the applicant had given false and misleading information and a bogus document to the Department.

3. In particular, the Tribunal considered that payslips provided by the applicant were patently false.  The payslips appeared to have been printed prior to the pay shown on them.  The Tribunal also noted that the payslips did not correspond with the bank statements provided by the applicant for the account in which he said his pay had been deposited. 

4. The Tribunal noted that the applicant’s evidence was that he was paid on the 20^th day of each month for that same month, even though his hours of work might vary and would not have been ascertainable as at the 20^th day of the month.  The Tribunal was concerned that the applicant’s alleged pay seemed to have come from the bank account of the mother of the alleged employer. 

5. The Tribunal noted that there had been an anonymous dob-in letter provided to the Department.  The Tribunal’s reasons at paragraph 41 indicate that the Tribunal put that anonymous dob-in letter to the applicant.  The Tribunal noted that the dob-in letter suggested that the applicant had actually paid his alleged employer to fabricate a work arrangement. However, the Tribunal said in paragraph 57 of its reasons for decision that it did not give any weight to the dob-in letter. 

6. The Tribunal found the applicant’s claim in relation to the arrangement for his remuneration to be implausible and contrived.  The Tribunal did not accept that the applicant had actually worked for the alleged employer. The Tribunal found that there was evidence that the applicant had provided a bogus document and false and misleading information.  The Tribunal found that the applicant did not meet PIC4020. 

7. The Tribunal indicated in its reasons for decision that it asked the applicant for submissions on why there might be compelling or compassionate reasons to waive the requirement to comply with PIC4020. The applicant and his representative did not make any submissions on that point.  The Tribunal concluded that PIC4020 should not be waived.  Consequently, the Tribunal did not accept that the applicant satisfied the criteria for the grant of the subclass 887 visa and affirmed the delegate’s decision.

8. The applicant was represented in this court at the time the application was filed. However, the applicant ceased to be represented on about 19 January 2018.  The applicant appeared without the benefit of legal representation for the hearing today, 7 February 2018.

9. The applicant said that he relied on the grounds set out in his application as well as some other grounds. 

10. Ground 1 in the application has two components.  The first component is that the Tribunal refused to exercise its power to adjourn the matter and give the applicant the opportunity to provide documents to remedy a deficiency in the documents the applicant had provided, being payslips.

11. It is true that the Tribunal refused an adjournment request.  The Tribunal had, in fact, provided three hearings in this matter.  The Tribunal said in its reasons for decision at paragraph 45 that it refused the adjournment.  In my view, it was not unreasonable for the Tribunal to refuse an adjournment in the circumstances of this case.  The applicant had already provided voluminous material to the Department and the Tribunal.  The court book in this matter extends to 1356 pages.  The applicant was well aware that there were concerns about the authenticity of his payslips. 

12. The applicant had an accountant provide spread sheets in an effort to explain how his payslips worked.  The applicant and his representative were given ample opportunity to explain why these documents were not bogus documents or false or misleading.  It is extremely unlikely that the applicant could have provided any additional document that could have resolved the issue to the satisfaction of the Tribunal.  More importantly, the applicant had, in fact, had ample opportunity to provide any document that he wished at earlier points in the process.  The first component of ground 1 is not a viable ground of review. 

13. The second component of ground 1 is that:

    The Tribunal’s findings were irrational, illogical and not based on findings or inferences of fact supported by logical grounds.

14. The applicant, in oral submissions, mostly maintained that he had, in fact, provided genuine documents.  He also said that he did not receive written reasons for two or three weeks after the Tribunal delivered its oral judgment at the end of the hearing.  That was a lawful procedure.  The applicant also said that he asked the Tribunal to telephone his employer in China but the Tribunal refused.  However, that is factually incorrect.  The Tribunal’s reasons for decision at paragraph 32 indicate that the Tribunal did, in fact, speak to the applicant’s alleged employer.  In addition, the affidavit of Kelsie Maree Parker, affirmed on 25 January 2018 exhibits a transcript of the Tribunal proceedings on 7 April 2014, 22 April 2014 and 16 December 2015.  The transcript of the proceedings on 22 April 2014 from pages 21 to 28 indicate that the alleged employer was, in fact, interviewed by the Tribunal by telephone.  There is no substance to that complaint. 

15. Otherwise, the applicant did not say anything about how it might be thought that the Tribunal came to an irrational decision.  It seems to me that the Tribunal’s decision was logical and reasonable, as those concepts are understood in law.  The Tribunal, in fact, followed a careful and thorough process of reasoning.  I do not accept that the second aspect of ground 1 is made out.

16. Ground 2 is that:

    The Tribunal failed to conduct a review of all the circumstances of the relationship between the applicant and his employer as a separately identified analysis of the facts that it was compelled to do pursuant to reg.1.15A of the Migration Regulations. 

17. Regulation 1.15A of the Regulations applies to partner visa applications.  It has no application to the type of visa applied for by the applicant.  In any event, the applicant said that his arrangement with his employer was a special international business arrangement between Australia and China.  He said that, perhaps, his employer had made a systems error or an error in management which resulted in the peculiarities in the arrangements for his pay.   It is clear from the Tribunal’s reasons for decision that it did closely review all of the circumstances of the relationship between the applicant and his alleged employer.  This ground is without substance.

18. Ground 3 is that:

    The Tribunal failed to consider the probative value of evidence about the genuine nature of the applicant’s relationship with the employer, and made an erroneous finding and mistaken conclusion in a way which amounted to jurisdictional error. 

19. The applicant did not provide any particulars of this ground.  It is clear from the Tribunal’s reasons that it did consider the voluminous material provided by the applicant. In the absence of irrationality or unreasonableness, the assessment of the evidence was a matter for the Tribunal.  There is no substance to this ground. 

20. The applicant claimed in submissions in reply that the Tribunal member was biased. However, there is nothing in the materials or decision record to support this.  The transcript of the three hearings conducted by the Tribunal does not support an allegation of bias.  This allegation is without substance. 

21. I have carefully read the Tribunal’s reasons for decision and some of the other material in the case.  I have been unable to discern any jurisdictional error in the Tribunal’s reasons or decision-making process. 

22. In the circumstances, the application filed on 5 January 2016 will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  23 April 2018