Chung v Minister for Immigration

[2014] FCCA 2195

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHUNG & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2195

Catchwords:
MIGRATION – Judicial review of decision of Migration Review Tribunal – no jurisdictional error disclosed.

Legislation:

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

Migration Act 1958 (Cth), s.359A(1)

Migration Regulations 1994 (Cth), cl.485.224 of Schedule 2, PIC 420(1A) of Schedule 4

Vyas v The Minister for Immigration and Citizenship [2012] FMCA 92
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42

First Applicant: RANJIT KAUR CHUNG

Second Applicant: KULDEEP SINGH GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 84 of 2014

Judgment of: Judge Simpson

Hearing date: 9 September 2014

Date of Last Submission: 9 September 2014

Delivered at: Adelaide

Delivered on: 9 September 2014

REPRESENTATION

The Applicants: In person

Counsel for the Respondents: Mr d'Assumpcao

Solicitors for the Respondent: Australian Government Solicitors

ORDERS

1. The application for review filed 19 March 2014 is dismissed pursuant to r.16.01 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant do pay the first respondent’s costs fixed in the amount of SIX THOUSAND, SIX HUNDRED AND FORTY SIX DOLLARS ($6,646).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 84 of 2014

RANJIT KAUR CHUNG

First Applicant

KULDEEP SINGH GILL

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex-tempore reasons settled from transcript)

Introduction

1. I have before me an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) made on 24 February 2014.  The first applicant appears before me in person.  She has indicated to the Court that she has had the opportunity of studying the green book provided by the first respondent and their Outline of Submissions.

2. I heard from the applicant as to any submissions that she wanted to put.  She acknowledged that she is not a lawyer and is not au fait with legal matters.  She nevertheless has told the Court that what she would like the Court to do is to “give her justice” which, from all that the applicant has said, shall in my view be understood to mean, that the Court should allow her to have a visa.

3. I have taken into account what has been said by the first applicant. 

4. The first applicant came to Court with the second applicant, who is the first applicant’s partner.  He did not put submissions to the Court.

5. I indicated that in giving these reasons for my decision, I have relied on the submissions that have been put before me by the first respondent. 

Background

1. The background to the matter is that the primary applicant, Mrs Ranjit Kaur Chung, is a citizen of India.  On 7 January 2011 she lodged an application for a visa.  Her nominated occupation was a cook.  Her application stated that she had requested skills assessment from Trades Recognition Australia (“TRA”), the relevant assessing authority for which she provided a reference number.

2. On 20 February 2012 a delegate of the Minister invited the applicant to comment on adverse information suggesting that she had provided false and misleading information on her visa application. She did not respond. On 9 May 2012 the delegate refused the application on the basis that the applicant did not satisfy the requirements of cl.485.224 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations) because she had failed to meet Public Interest Criteria (“PIC”) 420(1A) in Schedule 4 of the Regulations. It is a requirement under that clause that PIC 420 be met.

3. The delegate found that the applicant had given, or had caused to be given, information that was false and misleading in a material particular in relation to her visa application and that therefore she had failed to meet PIC 420.  The delegate reached that finding because TRA had no record of a skills assessment in relation to the applicant and therefore TRA had not provided her with any reference numbers.

4. On 23 May 2012 the applicant applied for a review of the delegate’s decision by the Tribunal.  On 25 June 2013 the applicant was invited to appear before the Tribunal to give evidence and present arguments in support of her case.  On 23 July 2013 the applicant provided the Tribunal with a medical certificate stating that she was unfit for work from 23 to 25 July 2013.  On 24 July 2013 the Tribunal unsuccessfully attempted to contact the applicant and, as a result, the hearing was cancelled.

5. On 29 July 2013 the Tribunal invited the applicant to comment on the information put to her regarding the allegedly false and misleading information she provided with her visa application.  On 20 August 2013 the applicant requested an extension of time to provide a response and this was granted the following day. 

6. In both the letter to the applicant on 29 July and again on 21 August, the Tribunal said that if it did not receive the applicant’s response by the due date, or any extended due date, the Tribunal may make a decision without taking any further action and that she will lose any entitlements she might otherwise have under the Migration Act 1958 (Cth) (“the Act”) to appear before the Tribunal to give evidence and present arguments.

7. The Tribunal recorded that it did not receive any response from the applicant in respect of the adverse information.  The Tribunal went ahead with making a decision about the matter.

8. The issue that was before the Tribunal, which is correctly identified, was whether the applicant satisfied PIC 420.  The Tribunal identified the question as whether the applicant satisfied PIC 420.  The Tribunal’s decision record began with a discussion of whether or not the applicant had given or caused to be given a bogus document or information that was false and misleading in a material particular.  The Tribunal appropriately had regard to the case of Vyas v The Minister for Immigration and Citizenship[1] in stating that the requirement for PIC 420(1) “applied whether or not the document was provided by the applicant knowingly or unwillingly”.

   [1] [2012] FMCA 92.

9. Reference was made to the Minister for Immigration and Citizenship v SZIAI[2] insofar as that case held that the Tribunal does not have a duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act.

   [2] (2009) 259 ALR 429.

10. The Tribunal determined, in the absence of any evidence to the contrary, that the applicant had given, or caused to be given, a bogus document or information that was false or misleading in a particular.  The applicant does not deny that fact but, somewhat understandably, considers that since she was aware of it being a bogus document that was being filed that she should not have to wear the consequences.

11. Regard was had by the Tribunal to PIC 420(2).  The Tribunal found that the applicant and her family unit had not been refused a visa on the basis of failing to satisfy PIC 420(1) in the three years commencing before the visa application was lodged. 

12. The Tribunal then turned its mind to the question of whether the requirements of PIC 420(1) should be waived.  It held that the applicant had not submitted any evidence to demonstrate that this provision was applicable. 

13. The Tribunal then concluded by affirming the Delegate’s decision.

14. The application that was filed by the two applicants contained the following grounds of application and I read it verbatim:

    “MRT refused by 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 four years.  I was happy to hear that and did 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 Australia Registered Migration Agent had been broken and I was cheated.  I am a victim of crime committed by Mr Jatinder singh.  Tribunal member failed to put weight on this fact that we were misled and I did not even know what Mr Jatinder singh is doing with our visa.  We simple were said that we are eligible to get work visa.  We did not 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 committed 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 judgment.” (sic)

15. It is clear from those grounds, if I could call them such, that the applicant is extremely upset about the predicament that the Migration agent has placed her in.  She is not denying that false or misleading information was provided to the Department but instead denies that she had any knowledge of it and she points to her former Migration Agent as the source of the problem.  That is obviously the case.

16. The case of Vyas makes clear that PIC 420 should not be construed as importing a mental element such that the misleading information does not have to be given knowingly by the applicant for the requirement to be infringed.  It simply has to be given or caused to be given. 

17. It was further held in the case of Trivedi v Minister for Immigration and Border Protection[3], a recent decision of the Federal Court, that the Tribunal does not need to determine whether an applicant knowingly provides false information before finding that PIC 420 is engaged.

    [3] [2014] FCAFC 42.

18. In terms of the false and misleading information itself, the first respondent notes in his submissions that on 20 February 2012 the Department wrote to the applicant inviting her to comment on the allegations.  It would appear that the applicant chose not to reply.  Thereafter on 29 July 2013 the Tribunal substantially repeated the allegations and offered the applicant another invitation to respond to them.  The Tribunal’s letter said this:

    “(1)It is alleged that you lodged your 485 visa application with the assistance of the business known as S & S Migration, who has been found to have lodged applications to the Department containing false and misleading information.

    (2)The Department identified a file with your personal details and application reference numbers in the office of S  & S Migration.

    (3)You provided a skills assessment reference TRA10/045636624 from Trades Recognition Australia (TRA) but TRA have no record of providing you with this skills assessment and there was no evidence of any error made.

    (4)It is alleged that you provided false and misleading information to the Department in a material particular in relation to your application for a 485 visa, a consequence of which is an adverse finding of your credibility as you provided this reference to indicate that you did have a valid skills assessment which is a requirement to the ground of a 485 visa.”

19. In that letter, the Tribunal clearly outlined the nature of its concerns and specifically noted the reasons why it considered the information there to be false and misleading. The Tribunal therefore discharged its obligation under s.359A(1) of the Act to provide the applicant with clear particulars of the information requiring disclosure.

20. The applicant’s allegations that her case involved ‘exceptional circumstances beyond [her] control’ and that she was a ‘victim of the crime’ are irrelevant unless the applicant alleges fraud.  In this case she has not done so.

21. Counsel for the Minister has provided the Court with a copy of the case of Trivedi. Paragraphs 41, 42, 43, 47 and 49 were referred to. I propose to simply quote the conclusions that are provided at paragraph 54 in which Buchanan J, who gave the leading judgment, had this to say:

    “In summary, I conclude that:

    ·PIC 4020(1) refers to information that is false, in the sense of purposely untrue;

    ·It is not necessary to conclude that a visa applicant is aware that information is purposely untrue, before PIC 4020 is engaged;

    ·The FCCA was correct to conclude that the MRT did not make a jurisdictional error when it found that PIC 4020 was engaged in the present case.”

22. The applicant will be obviously unhappy about the actions of the Migration Agent as it has resulted in serious adverse consequences.  Unfortunately for her that is the inevitable outcome of this matter.

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

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Simpson

Associate: 

Date: 23 September 2014