DHINDSA v Minister for Immigration

[2015] FCCA 3202

FEDERAL CIRCUIT COURT OF AUSTRALIA

DHINDSA & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3202

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Residence) (Class VB) visa – whether tribunal misunderstood the first applicant’s admission that someone else had undertaken an IELTS test for him.

Legislation:
Migration Act 1958 ss.5(1), 97
Migration Regulations 1994 Sch.2 cl.885.224, Public Interest Criterion 4020

First Applicant: RAJWINDER SINGH DHINDSA

Second Applicant: JASVIR KAUR DHINDSA

Third Applicant: ANUREET KAUR DHINDSA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File number: MLG 265 of 2015

Judgment of: Judge Riley

Hearing date: 12 November 2015

Date of last submission: 12 November 2015

Delivered at: Melbourne

Delivered on: 3 December 2015

REPRESENTATION

Solicitor advocate for the applicant: Ronald Gordon

Solicitors for the applicant: Ronald Gordon, Barrister & Solicitor

Solicitor advocate for the first respondent: Oliver Young

Solicitors for the first respondent: Sparke Helmore

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore

ORDERS

1. The application filed on 12 February 2015 and amended on

   
   

   9 November 2015 be dismissed.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 265 of 2015

RAJWINDER SINGH DINDSA

First Applicant

JASVIR KAUR DHINDSA

Second Applicant

ANUREET KAUR DHINDSA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Migration Review Tribunal (“the tribunal”). In that decision, the tribunal affirmed a decision of the delegate not to grant the first applicant a Skilled (Residence) (Class VB) visa. 

2. The tribunal considered that the first applicant did not meet Public Interest Criterion 4020 (“PIC 4020”) as required by cl.885.224 of Schedule 2 to the Migration Regulations 1994. Basically, PIC 4020 required that there be no evidence that the applicant has given the Minister a bogus document. The term ‘bogus document’ is defined in s.97 and s.5(1) of the Migration Act 1958 as follows:

   "bogus document " , in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)purports to have been, but was not, issued in respect of the person; or

   (b)is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)was obtained because of a false or misleading statement, whether or not made knowingly.

3. In the present case, the tribunal was not satisfied that there was no evidence that the first applicant had given the Minister a document that the tribunal reasonably suspected was a bogus document.  The tribunal found that an imposter had undertaken an IELTS test in the first applicant’s name on 26 February 2011 and the first applicant had lodged it with his visa application.

4. The tribunal noted at paragraph 15 of its reasons for decision that, during the hearing before the tribunal, the first applicant:

   … stated that he did not undertake the IELTS test.  He was approached by a person named Bob who offered to undertake the IELTS instead of him.

5. The application to this court largely centred on whether the tribunal had misconstrued what the first applicant said at the tribunal hearing.  The first applicant maintained that he had told the tribunal that he had not undertaken the IELTS test on 26 February 2011, but he had told the tribunal that on 26 February 2011 he had asked a person named Bobby to organise a re-mark of an IELTS test he had previously undertaken.  He said he had paid Bobby 50,000 rupees to organise the re-mark.

6. It was common ground that the first applicant had previously undertaken IELTS tests which he had failed and that the IELTS test lodged with the first applicant’s visa application showed that he had results of 9 for listening, 9 for reading, 6.5 for writing and 8 for speaking.

7. The matter came before this court as a show cause hearing on

   
   

   14 October 2015.  The matter was listed for final hearing on

   
   

   5 November 2015, on the basis that the applicants would provide a transcript of the tribunal’s hearing.  On 5 November 2015, the transcript was not available so the matter was further adjourned to

   
   

   12 November 2015.  The transcript of the tribunal’s hearing was exhibited to the first applicant’s affidavit affirmed on 9 November 2015.

8. The passages of the transcript that are relevant are as follows:

   a)page 5, lines 13 to 30:

   MEMBER:All right. Let’s talk about this IELTS test. Tell me first, did you provide the IELTD test report from 26 February 2011, to the Department?

   MR DHINDSA:  Yes.

   MEMBER:Okay. Now, have you ever done the test before that February 2011?  Have you ever attempted the IELTS before that?

   MR DHINDSA: Yes, I did.  Which IELTS I gave, I haven’t attended that.

   MEMBER:Sorry?

   MR DHINDSA:  Which IELTS I provided to Immigration, I have not attended that.

   MEMBER:So you have not attended that?

   MR DHINDSA:  Yes.

   b)page 6, lines 1 to 17:

   MEMBER:All right.  Sorry to interrupt.  I just want to focus on this IELTS test first.

   MR DHINDSA:  Yes.

   MEMBER:And then we can talk about this.

   MR DHINDSA:  And then that’s why I went there and the guy I met in my city, and he said, “What IELTS are you doing?  We can help you with that.”  I said, “Look, how can?” They said, “It’s fully misunderstanding.”  They said, “Get the IELTS.”  Which we’re going to do it because re-valuation test. Like, no need to attend the test.  They’re going to look overall - - -

   MEMBER:Just go back.  Okay.  So you went back to India.

   MR DHINDSA:  Yes.

   c)page 7, lines 4 to 45:

   MEMBER:… Okay.  What is the name of that person?

   MR DHINDSA:  It’s called Bobby.

   MEMBER:Bobby.  Not a very typical Indian name, is it?

   MR DHINDSA:  No.  I don’t know.  I never asked.  Just called Bob.

   MEMBER:Did you know him from before?

   MR DHINDSA:  No.

   MEMBER:So he offered you to - - -

   MR DHINDSA:  Do the IELTS test for the - - -

   MEMBER:Do the IELTS test.

   MR DHINDSA:  - - - overall, because, he said the IELTS, ID, they’re going to look overall at what you’re doing and that’s why they can help you with that.

   MEMBER:Okay.

   MR DHINDSA:  But I was just saying really that to - - -

   MEMBER:How much money did he ask for?

   MR DHINDSA:  He asked for 50,000.

   MEMBER:Rupees?

   MR DHINDSA:  Yes.

   MEMBER:So you paid 50,000 Rupees.  And he attended the test and took it instead of you?

   MR DHINDSA:  Yes.

   MEMBER:So you submitted that report to the Department?

   MR DHINDSA:  Yes.

   d)page 10, lines 29 to 32:

   MEMBER:All right.  Now, as you made a full admission that you used someone else to sit the test.

   MR DHINDSA:  Yes, Mr Dronjic, 100 per cent.

   e)page 15, lines 24 to 25:

   But you did something very wrong, and you admit to it, and you’re aware of, you know, the consequences. …

9. Based on those excerpts from the transcript, I consider that it was open to the tribunal to conclude that the first applicant had admitted that he had used Bobby to sit the IELTS test for him.  In other words, I consider that there was no jurisdictional error in the tribunal so concluding.  The tribunal, as indicated at pages 7 and 10 of the transcript, sought to clarify what the first applicant had said.  The first applicant made it abundantly clear at page 7 of the transcript that Bobby had taken the test instead of the applicant.  The first applicant made it abundantly clear at page 10 that he had used someone else to sit the test.  It may not have been what the first applicant meant, but it is certainly what he said.

10. Although that disposes of the applicants’ principal argument, the applicants did not withdraw any of the grounds set out in the amended application filed on 9 November 2015.  Consequently, I will deal with those grounds in turn.

Ground 1

1. The first ground of review in the application filed on 12 February 2015 and amended on 9 November 2015 is:

   The (then) Migration Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it found and/or held that the First Applicant had admitted and/or gave evidence to the MRT that he was approached by a person named Bob who offered to undertake the IELTS instead of him when the First Applicant made no such admission and/or gave no such evidence to the MRT and/or the MRT acted unreasonably in coming to such conclusion;

2. For the reasons discussed above, this ground cannot succeed.

Ground 2

1. The second ground of review in the application filed on

   
   

   12 February 2015 and amended on 9 November 2015 is:

   The (then) Migration Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it misinterpreted the evidence submitted by the First Applicant in that he did not sit the IELTS test the results of which was submitted to the Department but that he obtained a re-evaluation and/or re-marking of previous IELTS tests done and/or the MRT acted unreasonably in proceeding with that interpretation and/or misinterpretation.

2. For the reasons discussed above, this ground cannot succeed.

Ground 3

1. The third ground of review in the application filed on

   
   

   12 February 2015 and amended on 9 November 2015 is:

   The (then) Migration Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it found and/or held that the name Bobby was not a very typical Indian name when there was no evidence before the MRT to come to that conclusion and as a result the MRT relied on evidence not before it and/or relied on presumptions and/or assumption not supported by evidence and further the MRT based on such erroneous assumptions and/or presumptions and/or conclusions not supported by evidence appears on the face of it to have formed a preliminary view that prima facie fraud and/or dishonesty existed and therefore the MRT was affected by prejudice and/or conducted the hearing and formed its decision based on such prejudice and/or the MRT acted unreasonably in proceeding so.

2. The tribunal did not make any finding that Bobby is not a very typical Indian name.  The tribunal did make that observation at line 8 of page 7 of the transcript.  However, the observation did not feature in the tribunal’s reasons for decision.  I am not persuaded that the observation about the name Bobby is in any way indicative of prejudgment or unreasonableness.  It was just a passing comment.  The IELTS test that the applicants relied upon was undertaken in India.  In that context, I see nothing untoward in the tribunal’s comment.

Ground 4

1. The fourth ground of review in the application filed on

   
   

   12 February 2015 and amended on 9 November 2015 is:

   The (then) Migration Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it unreasonably and excessively interjected when the First Applicant was giving evidence and thereby prevented the First Applicant from giving evidence and offering explanations adequately and/or properly and/or completely and/or wholly and the MRT thereby failed to afford the First Applicant a reasonable and/or proper hearing of the Applicant’s case before the MRT and thereby the MRT proceedings were conducted unfairly and/or improperly and/or unreasonably

2. I have read the whole transcript of the tribunal hearing.  I do not accept that, overall, it supports the applicants’ claims.  It is true that the tribunal interjected at page 6 line 15.  However, that was patently to ask the first applicant to “go back” and proceed more slowly through his evidence.  The tribunal allowed him ample opportunity to do that.  Similarly, the tribunal interrupted at various points to clarify what the first applicant was saying. Ultimately, the first applicant stated clearly what had occurred. This ground is not made out.

Ground 5

1. The fifth ground of review in the application filed on 12 February 2015 and amended on 9 November 2015 is:

   The (then) Migration Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it found and/or held that the photograph of the First Applicant as it appeared on the IELTS report did not really look like the First Applicant when there was no evidence before the MRT to come to that conclusion and further the MRT failed to take into account the evidence submitted by the First Applicant regarding that photograph and/or accepted the evidence submitted by the First Applicant explaining the photograph but arrived at a conclusion contrary to that evidence which was the only evidence before the MRT and/or the MRT acted unreasonably in not accepting that the photograph was that of the First Applicant when there was no evidence otherwise.

2. The tribunal did not find that the photograph of the first applicant on the IELTS report did not look like the first applicant.  The delegate rejected the application on the basis that IDP had cancelled the first applicant’s IELTS test results because the photograph of the first applicant on his IELTS test report did not match the IDP records.  However, the tribunal did not rely on that alleged discrepancy in its reasons for decision. 

3. During the hearing, the following exchange occurred at page 8 lines 1 to 18 of the transcript:

   MEMBER:And the photo that appears in that IELTS report, who does it belong to?  Is it your photo or a photo of someone else?

   MR DHINDSA:  Sorry, can you say once again, please?

   MEMBER:The photo that appears on the IELTS test, have you ever seen it?

   MR DHINDSA:  Yes, this is my photo.

   MEMBER:How come this is your photo?  This doesn’t really look like you, I have to be honest.  Is that your photo?

   MR DHINDSA:  Yes, sir.

   MEMBER:Okay.  All right.  You’ve changed from that day.  You’ve lost a bit of weight?

   MR DHINDSA:  Yes.  Absolutely right.

4. The tribunal appears to have accepted the first applicant’s claims in that regard.  It is true that the tribunal came to a conclusion that may have been inconsistent with the photograph on the IELTS test report being a photograph of the first applicant.  However, there may have been explanations for that.  In any event, the tribunal was entitled to give such weight as it saw fit to the various items of evidence before it.  The tribunal was entitled to place great weight on the first applicant’s apparent admission that Bobby had sat the test for him.  It was not necessary for the tribunal to have evidence explaining how Bobby could have sat the test when the photograph looked like the first applicant.  This ground is not made out.

Ground 6

1. The sixth ground of review in the application filed on

   
   

   12 February 2015 and amended on 9 November 2015 is:

   The (then) Migration Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it found and/or held and/or said to the First Applicant “…you made a full admission that you used someone else to sit the test” when the First Applicant had made no such admission to the MRT and the MRT based on this admission found that the First Applicant had submitted a fraudulent and/or false and/or forged document to the Department and/or the MRT acted unreasonably in coming to that conclusion.

2. For the reasons discussed above, this ground cannot succeed.

Ground 7

1. The seventh ground of review in the application filed on

   
   

   12 February 2015 and amended on 9 November 2015 is:

   The (then) Migration Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it found and/or held that it was a common practice that a lot of people are using this way of providing evidence of the English language meaning that a lot of people are submitting fraudulent and/or false and/or bogus evidence of the English language requirement when there was no evidence of that before the MRT and/or without the MRT giving that information and/or evidence to the First Applicant to comment on and/or rebut and/or the MRT in referring to such purported practices relied upon irrelevant information and/or evidence and/or evidence that was not before it and/or the M[R]T acted unreasonably in making that statement and relying upon it to form its decision.

2. The tribunal did not find that “it was a common practice that a lot of people are using this way of providing evidence of the English language”.  Neither that statement nor anything like it appears in the tribunal’s reasons for decision.

3. However, the tribunal did say at page 13 lines 41 to 43 of the transcript of the tribunal hearing:

   MEMBER:… this is something that it’s, you know, a common practice that a lot of people are using this way of providing evidence of the English language.

4. Again, this was just a passing comment.  It did not form part of the tribunal’s reasons for decision.  In any event, the first applicant could have commented on that view if he had wished because the tribunal mentioned it to him during the hearing.  It was not necessary for the tribunal to provide the information on which the view was based.  Obviously, the tribunal deals with many matters such as this, and it is entitled to form views based on the various matters it hears, subject to alerting the applicant to any issues on which the decision may turn.  As indicated, the decision did not turn on what might be common practice.  It turned on the applicant’s admissions.  This ground is not made out.

Ground 8

1. The eighth ground of review in the application filed on

   
   

   12 February 2015 and amended on 9 November 2015 is:

   The (then) Migration Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it proceeded with the hearing without an interpreter being present to interpret for the MRT and the First Applicant when on the face of it, it was abundantly clear that the First Applicant had difficulty in both understanding the MRT proceedings in English and providing answers to the MRT in English and/or the MRT acted unreasonably when it proceeded without an interpreter.

2. It is true that the tribunal hearing proceeded without an interpreter.  However, that was clearly because the applicants’ response to the hearing invitation said that an interpreter was not required.  That is consistent with the first applicant claiming that he has competent English. 

3. The transcript of the tribunal hearing shows that the first applicant’s answers were responsive.  He clearly had a fair understanding of the questions that were put to him.  Many of his answers were in very good English, some less so.

4. The applicants were not assisted by a migration agent at the tribunal hearing.  However, they did have a migration agent at the time of the response to the hearing invitation.

5. I do not accept that, in all the circumstances of this case, the tribunal erred jurisdictionally by proceeding with the hearing without an interpreter. 

Ground 9

1. The ninth ground of review in the application filed on 12 February 2015 and amended on 9 November 2015 is:

   The (then) Migration Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it took into account irrelevant maters and/or information and/or evidence and did not take into account relevant matters and/or information and/or evidence as required by law

2. The applicants did not provide particulars of this ground.  Consequently, I am unable to be satisfied that it is made out.

Ground 10

1. The tenth ground of review in the application filed on

   
   

   12 February 2015 and amended on 9 November 2015 is:

   The (then) Migration Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it failed to give proper consideration to and weight to the evidence presented by the Applicant

2. The applicants did not provide particulars of this ground.  Consequently, I am unable to be satisfied that it is made out.  In addition, the tribunal is entitled to give such weight to the various items of evidence as it sees fit.

Ground 11

1. The eleventh ground of review in the application filed on

   
   

   12 February 2015 and amended on 9 November 2015 is:

   The (then) Migration Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it summarily dismissed and discounted the evidence presented by the Applicant

2. The applicants did not provide particulars of this ground.  Consequently, I am unable to be satisfied that it is made out.  In addition, the reality is that the tribunal accepted the evidence given by the first applicant, in the form of an admission that Bobby sat the IELTS test for him.

Ground 12

1. The twelfth ground of review in the application filed on

   
   

   12 February 2015 and amended on 9 November 2015 is:

   The (then) Migration Review Tribunal erred in law and/or in fact, and thereby fell into jurisdictional error, when it misapplied the facts, law, regulations, policy and guidelines in deciding that the Applicants had breached the Public Interest Criteria in particular PIC 4020.

2. The applicants did not provide particulars of this ground.  Consequently, I am unable to be satisfied that it is made out.

Conclusion

1. As none of the applicants’ grounds has been made out, the application filed on 12 February 2015 and amended on 9 November 2015 must be dismissed.  As there were an unusual number of hearings in this case, I will hear the parties on the question of costs.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date: 3 December 2015