Chung v MIBP

Case [2015] FCA 163

FEDERAL COURT OF AUSTRALIA

Chung v Minister for Immigration and Border Protection [2015] FCA 163

Citation: Chung v Minister for Immigration and Border Protection [2015] FCA 163
Appeal from: Chung & anor v Minister for Immigration & anor [2014] FCCA 2195
Parties: RANJIT KAUR CHUNG and KULDEEP SINGH GILL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL
File number: SAD 232 of 2014
Judge: PERRY J
Date of judgment: 5 March 2015
Catchwords:

MIGRATION – Where Migration Review Tribunal finds application for visa provides false or misleading information – Whether necessary for visa applicant to knowingly provide false information - Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169; [2014] FCAFC 42 applied - Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 explained

MIGRATION – Where Migration Review Tribunal “cancelled” hearing on late adjournment application – Where no mention of outcome of consideration of adjournment application - Where subsequent failure to respond to invitation to comment on adverse information under s 359C(2) of the Migration Act 1958 (Cth) with consequential loss of entitlement to appear under s 360(3)

Legislation: Migration Act 1958 (Cth)ss 65(b), 357A, 359C, 360
Migration Regulations 1994 (Cth) Sch 2: cl 485.224, Sch 4: cl 4020
Cases cited: Kaur & Ors v Minister for Immigration & Anor; Prodduturi v Minister for Immigration & Anor [2013] FCCA 1805
Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5
Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169; [2014] FCAFC 42
Date of hearing: 24 and 26 February 2015
Place: Adelaide
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 31
Counsel for the Appellant: The appellants appeared in person
Counsel for the Respondent: Mr P d’Assumpcao (solicitor)
Solicitor for the Respondent: Australian Government Solicitor

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 232 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

RANJIT KAUR CHUNG
First Appellant

KULDEEP SINGH GILL
Second Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

PERRY J

DATE OF ORDER:

5 MARCH 2015

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed with costs to be agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 232 of 2014
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

RANJIT KAUR CHUNG
First Appellant

KULDEEP SINGH GILL
Second Appellant
AND:

 MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

PERRY J

DATE:

5 MARCH 2015

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1.               INTRODUCTION

  1. This is an appeal from the decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal).  By its decision given on the 24 February 2014, the Tribunal affirmed the decision…

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Chung v MIBP [2015] FCA 163
Case
[2015] FCA 163
Decision Date

CaseChat Overview and Summary

In the matter of Chung v Minister for Immigration and Border Protection, the appellants, Mrs. Chung and Mr. Gill, sought an appeal against a decision of the Migration Review Tribunal (MRT) that affirmed a delegate's decision to deny their applications for subclass 485 visas. The basis of the Tribunal's decision was that the appellants had provided false or misleading information in their applications, in contravention of the relevant provisions of the Migration Act 1958 (Cth). The appellants contended that they were victims of a scam perpetrated by their migration agent and had not knowingly provided any false information. The court was required to determine whether the Tribunal erred in law by not considering the appellants' claims that they were misled by their agent and did not know that false information had been provided. The court also needed to consider whether the Tribunal's failure to mention its consideration of an adjournment application and the consequences of the appellants' failure to respond to the invitation to comment on adverse information rendered the decision invalid.

The court held that while there were procedural issues with the Tribunal's handling of the adjournment application and the appellants' failure to respond to the invitation to comment on adverse information, these issues did not render the decision invalid. The court found that the appellants' claims of being misled by their migration agent did not absolve them of responsibility for the false information provided in their applications. The court further held that the Tribunal was not required to find that the appellants knowingly provided false information, as the relevant provisions of the Migration Act only required that the appellants had provided or caused to be provided false information. The court dismissed the appeal, finding that the Tribunal's decision was not affected by any alleged errors in its consideration of the adjournment application or the appellants' failure to respond to the invitation to comment on adverse information.

The court ordered that the appeal be dismissed with costs to be agreed or assessed. The appellants were not successful in their appeal against the Tribunal's decision to deny their applications for subclass 485 visas. The court found that the Tribunal's decision was valid and that the appellants had not satisfied the requirements of the relevant provisions of the Migration Act. The court did not find any jurisdictional error on the part of the Tribunal in its handling of the adjournment application or the appellants' failure to respond to the invitation to comment on adverse information. As a result, the appellants' appeal was dismissed, and they were ordered to pay costs to the respondent.

Orders

Orders of the court

1. The appeal is dismissed with costs to be agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Finally, by way of procedural matters, I note that appellants appeared unrepresented and did not file written submissions in support of the appeal notwithstanding the direction by the Registrar to file and serve a written outline of submissions made on 23 September 2014. The Minister filed detailed written submissions in accordance with those directions. While the appellants had initially considered that an interpreter was unnecessary, the hearing on 24 February 2015 was adjourned when it became apparent that the appellants, for whom English is not their native language, were experiencing difficulties in following the proceedings and wished to have the proceedings interpreted. The hearing was relisted on 26 February 2015 by which time an interpreter had been arranged.2. BACKGROUND2.1 The application for the visas and consideration of the applications by the delegate The appellants applied for the visas on 7 January 2011. The Principal Visa Applicant (PRA) was Mrs. Chung. The fate of the visa application by the second appellant, Mr Gill, was dependent in the first instance on the success of Mrs. Chung’s application. On 20 February 2012, the delegate sent an email to the appellants requesting a written response to adverse information. In the email, the delegate pointed to the requirement for the grant of a subclass 485 visa that the applicant satisfies PIC 4020. At the relevant time, PIC 4020 required that:(1) There is no evidence before the Minister that the applicant has given, or caused 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. (2) The Minister is satisfied that during the period: (a) starting 3 years before the application was made; and (b) ending when the Minister makes a decision to grant or refuse the application; the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1). (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 requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if 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 of that information. Note Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.

Evidence

Evidence Before The Court

The letter advised that the information is relevant to the review because “it will inform the Tribunal in respect of the credibility of your evidence. A consequence of an adverse finding of credibility is potentially an adverse decision in your matter.” Importantly, the letter further advised that:If the tribunal does not receive your comments or response within the period allowed or as extended, the tribunal may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the tribunal to give evidence and present arguments. (emphasis in the original) In a letter received by the Tribunal on 20 August 2013, Mrs. Chung sought an extension of time to respond to the adverse information. As a result, on 21 August 2013 the Tribunal granted an extension of time for the receipt of any comments or responses to 28 August 2013. The letter from the Tribunal to both appellants advising of the extension also advised, in line with the letter dated 29 July 2013, that:If the tribunal does not receive your comments or response by 28 August 2013, the tribunal may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the tribunal to give evidence and present arguments. (emphasis in the original)2.2 The decision of the Tribunal On 24 February 2014, the Tribunal affirmed the decision of the delegate not to grant the appellants the visas. In its reasons, the Tribunal found that it was satisfied that the notice of hearing was sent to the updated address provided by the appellants. It referred to the medical sickness certificate received the day before the hearing and noted that there was no such certification of unfitness for Mr Gill. The Tribunal then stated at [11] that “Neither applicant attended the hearing at the scheduled date and time. Attempts to contact the applicants by phone on the day were not successful.” The reasons of the Tribunal do not expressly consider the implicit application for an adjournment of the hearing or state how it was resolved. The Tribunal found that the appellants had not satisfied the requirements of PIC 4020(1) . Specifically, it found at [23]:Having considered the material before it and in the absence of any sworn evidence or further submitted material, the Tribunal is satisfied that the applicant has given, or caused to be given a bogus document (with reference to the definition in s.97 of the Act), or information that is false or misleading in a material particular – specifically, the skills assessment reference to TRA 10/045636624 from Trades Recognition Australia. Nor had the appellants raised any circumstances for the purpose of PIC 4020(4) to justify a waiver of non-compliance with cl 485.224 and the grant of the visas. In the circumstances, the Tribunal affirmed the decision not to grant the visas as the appellants did not meet the requisite criteria.3. CONSIDERATION3.1 Whether it was necessary for the Tribunal to find that the appellants knowingly provided a bogus document or false information?

Decision

Reasons for decision

I had raised concerns at the hearing as to the manner in which the Tribunal responded to the application for an adjournment of the hearing. There was, for example, no mention of the outcome of any consideration of the application in the Tribunal’s reasons and the Hearing Record simply stated that the hearing had been “cancelled”. However, the consequences prescribed by s 360(3) of the Act mean that any such concerns could not in my view raise doubt over the validity of the decision to affirm the delegate’s decision. It may also have been, for example, that the Tribunal in all of the circumstances decided to leave the question of whether it would reschedule a hearing until it had received any comments or response to its letter extending an invitation to comment on the adverse material. I do not consider that there is anything in the Act which suggests that such a course is not open to the Tribunal.4. CONCLUSION For these reasons, the appeal is dismissed with costs.

Ratio Decidendi

Legal Principle Established

Nor had the appellants raised any circumstances for the purpose of PIC 4020(4) to justify a waiver of non-compliance with cl 485.224 and the grant of the visas. In the circumstances, the Tribunal affirmed the decision not to grant the visas as the appellants did not meet the requisite criteria.3. CONSIDERATION3.1 Whether it was necessary for the Tribunal to find that the appellants knowingly provided a bogus document or false information? In line with the application for judicial review in the Court below, the notice of appeal essentially complained that the Federal Circuit Court ought to have found that the Tribunal failed to give weight to the fact that the appellants were misled by their migration agent and did not know what he was doing with their applications, and that they were the victim of a scam. Specifically the appellants pleaded in the notice of appeal that:Federal Circuit court dismissed my case and failed to realise the jurisdictional error in Tribunals judgment. MRT refused my review application stating that I don’t satisfy PIC cl.4020(1). Member asked himself question that at the time of decision cl 4020(1) should be satisfied. I was a student. An Australian registered migration Agent Mr Jatinder Singh advised us and more students that we can get work visa for 4 years. I was happy to hear that and didnot not know that he was applying subclass 485 visa. I was under understanding that I will get work visa which is legitimate as per law. The consultant is Australian registered Migration Agent so I Trusted him. My visa was refused by DIABP stating that bogus document is being provided. Later tribunal looked into case and asked me to give documents or compassionate circumstances, I was not aware of all these things done by Mr Jatinder so my case is “exceptional circumstances beyond my control”. The very trust I put on Australian Registered Migration Agent had been broken and I was being cheated. I am a victim of crime commited by Mr Jatinder singh. Tribunal member failed to put weight on this fact that we were misled and I didnot even know what Mr Jatinder singh is doing with our visa. We simply were said that we are eligible to get work visa. We didnot provide any information to Immigration. All false documents/information was given by Mr Jatinder Singh without our knowledge. Tribunal member failed to recognise the fact that we were victim of crime commited by Mr Jatinder singh. The circumstances in our case were beyond our control as we were not aware of this scam. Tribunal member made error in his judgement. As the Court below acknowledged, it is clear from the grounds of appeal and Mrs. Chung’s submissions in this Court that the appellants are extremely upset about the predicament in which their migration agent has apparently placed them. In this regard it must also be recalled, as the initial email from the Department on 20 February 2012 acknowledged, that the involvement of the appellants’ migration agent in the preparation of the appellants’ application was uncovered by the Department when it identified a file relating to the application with a migration agent found to have lodged applications containing false or misleading information. This lends some support to the appellants’ position that they have fallen victim to an unscrupulous agent.