GARG v Minister for Immigration

[2015] FCCA 48

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARG v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 48

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – applicant relying on false trades recognition assessment – application filed by agent but applicant aware of application – no jurisdictional error shown – application dismissed.

Legislation:  

Migration Act 1958, s.98
Migration Regulations 1994, Schedule 2, cls. 485.221, 485.224

Sran v Minister for Immigration [2014] FCCA 37

Applicant: SATYENDER GARG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2205 of 2013

Judgment of: Judge Burchardt

Hearing date: 19 November 2014

Date of Last Submission: 19 November 2014

Delivered at: Melbourne

Delivered on: 23 January 2015

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Mr Rebikoff

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application filed on 12 December 2013 is dismissed. 

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,825. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 2205 of 2013

SATYENDER GARG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed on 12 December 2013, the applicant seeks judicial review of the decision of the Migration Review Tribunal (“the Tribunal”) dated 19 November 2013.  The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) visa. 

2. The grounds of application are as follows. 

   “Ground 1

   The member of the Migration Review Tribunal erred when she did not take into account the applicant’s evidence to be considered for a Skilled (Provisional) (Class VC) visa. 

   Particulars

   The applicant’s states that he provided sufficient evidence to further his claim for Skilled (Provisional) (Class VC) visa.

   Ground 2

   Due to the member of the Migration Review Tribunal not taking into account vital information, the applicant suffered unfairness and breach of natural justice.

   Particulars

   The applicant states that he provided documentary evidence which were not given due consideration.”

3. The applicant’s affidavit filed contemporaneously with the application does not expand in any meaningful way the grounds of application and effectively merely exhibits a copy of the Tribunal’s decision and notification letter.  The applicant, despite the opportunity to do so given by orders made by Registrar Allaway on 5 March 2014 has not filed any amended application or written submissions.  That is not a criticism of him, given his lack of understanding of the law, but it means that all the Court has meaningfully before it is the Court Book (“CB”) and the first respondent’s outline of submissions.  What follows will necessarily somewhat closely follow the first respondent’s outline. 

4. The applicant is a citizen of India who arrived in Australia on 13 November 2008 as the holder of a subclass 572 (Vocational Education and Training Sector) student visa.  He applied on 11 January 2011 for a Skilled (Provisional) (Class VC) subclass 485 skilled graduate visa.  The application was filed on the applicant’s behalf by an agent.  That agency is not in fact obvious from the application itself at CB1-10, but that is what the applicant now asserts.  I note from an email message sent by the applicant to the department at CB11 that the applicant was well aware of the filing of the visa application on his behalf. 

5. One of the criteria for the grant of the visa the applicant sought is that the skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skill or occupation, pursuant to cl.485.221 of schedule 2 to the Migration Regulations 1994. 

6. The application lodged by the applicant included an assertion at CB8 that he had been assessed on 15 February 2010 by Vocational Education and Training and Assessment Services as suitable for the occupation of automotive electrician and he provided a reference number in relation to that skills assessment from Trades Recognition Australia.

7. On 17 February 2012, a delegate of the first respondent wrote to the applicant CB20-23.  That letter invited the applicant to comment on information received by the department to the effect that Trades Recognition Australia had no reference of providing the skills assessment nominated in the application or, indeed, any skills assessment to the applicant.  The applicant did not reply to that email.  Perhaps unsurprisingly, on 19 April 2012, the delegate of the first respondent refused the application on the basis that there was evidence that the applicant had provided information that was false or misleading in a material particular in relation to the application.  Therefore the applicant did not satisfy Public Interest Criterion 4020.  The decision record is at CB29-34. 

8. The applicant sought review of the decision before the Tribunal and on 21 October 2013, the Tribunal sent the applicant a letter by registered post to his then nominated new postal address, inviting him to appear before the Tribunal and present arguments in relation to his case.  That letter was returned unopened and later that day the Tribunal sent an email to the applicant, attaching a copy of the letter and informing him that the proceeding would continue as scheduled on 19 November 2013.  On 19 November 2013 the Tribunal held a hearing but the applicant did not appear, and later that day the Tribunal affirmed the decision not to grant the visa to the applicant.

9. The Tribunal’s decision is at CB63-86.  It represents a thorough and comprehensive analysis of the applicant’s claim, the surrounding circumstances and the law and its application to the circumstances.  The Tribunal noted at paragraph 12 (CB65) that as a result of a Departmental investigation, records were found that established a link between the applicant’s application and a firm described as Firm Z.  This firm had been found to have lodged a number of applications to the Department containing false and misleading application. 

10. As the Tribunal noted, this led to the applicant’s records being provided to Trades Recognition Australia for verification and the fact that Trades Recognition Australia on 20 December 2011 informed the Department that it held no record of the applicant or any record that he had ever had a skills assessment.  In addition, Trades Recognition Australia advised that the TRA reference number that had been provided in the visa application form could not be verified because it did not exist on their systems.  The TRA correspondence is at CB23.  The Tribunal noted at paragraph 14 (CB65) that additional verification checks of the applicant’s identifying details or alleged 485 TRA reference number has not been found.

11. Having dealt with the delegate’s decision and the review application at CB66-68 in terms that in my view are wholly unremarkable, the Tribunal, in my view entirely properly, considered at paragraphs 33-44, (CB68-69), whether the matter should proceed or be adjourned.  The Tribunal correctly noted that it had a discretion to reschedule the applicant’s appearance or to delay its decision in order to enable the appearance to be rescheduled. 

12. The Tribunal noted the relatively short interlude between the rejection of the application and the application for review and pointed out that the applicant had been aware for approximately 19 months that his visa application was refused because the Department had found that he had provided false or misleading information in a material particular in connection with his visa application.  The applicant was also aware of the factual basis for those findings as they were set out in the delegate’s decision record.

13. The Tribunal noted that the applicant had been in correspondence with the Tribunal about fee waiver, albeit unsuccessful as it transpired, and the Tribunal found, in my view, correctly at paragraph 39, CB69:

    “Accordingly, this evidence demonstrates that the applicant has been able to communicate with the Tribunal since the lodgement of his review application.  Despite this, he failed to attend the scheduled Tribunal hearing on 19 November 2013.” 

14. Having dealt with the returned letter to which I have already referred and the email sent, the Tribunal concluded that there was no value in delaying the decision on the review in order to enable the applicant’s appearance to be rescheduled.  The Minister’s submissions touch on this matter at paragraph 38 and I would entirely agree with what is set out there.  The Tribunal was, in my view, entirely correct to assume that it was appropriate to continue with the matter in the applicant’s absence, not only for the reasons it gave but also for the evident weakness in the applicant’s case. 

15. At CB69-86, the Tribunal dealt in considerable detail with its findings and reasons.  There were a number of effectively insuperable difficulties for the applicant’s case.  The Tribunal’s finding at paragraphs 55-56 (CB70) were:

    “Accordingly, the Tribunal finds that that the applicant’s skills have not been assessed by the relevant assessing authority as suitable for his nominated skilled occupation at the time of the decision.

    The Tribunal has considered whether the applicant should be provided additional time in which to meet the requirements of clause 485.221.  However, the Tribunal notes that the applicant has not submitted any evidence in support of the review application and chose not to appear at the scheduled Tribunal hearing where this matter could have been discussed with him.”

16. Those findings are unimpeachable. 

17. The Tribunal went on to say at paragraph 57 that the applicant, even if given time to obtain a favourable skills assessment, could not overcome the issues discussed thereafter in respect of clause 485.224.  Clause 485.224, as the Tribunal correctly observed, interacts with Public Interest Criterion 4020, which is the criterion which brings into play the circumstance where an applicant for a visa provides to the Department a document or information that is false or misleading in a material particular in relation to the application for a visa. 

18. The Tribunal found that the document that the applicant had unquestionably provided to the department, asserting he had a Trades Recognition Australia assessment when he had not, was indeed false and misleading in a material particular. That finding in the circumstances is likewise unimpeachable. 

19. On those two grounds, the applicant was clearly precluded from a successful application.  The Tribunal quite properly dealt with the compelling and/or compassionate circumstances exemption but equally appropriately declined to exercise it favourably to the applicant in the circumstances.  It is therefore immediately apparent that the application by the applicant to the Tribunal was correctly dismissed. 

20. A matter that the written submissions of the Minister deal with at paragraph 40 that requires to be addressed is the possible implications of the agency asserted by the applicant in relation to the provision of the false and misleading information.  When the matter was before the Court, the applicant initially said that he had nothing specific to say.  He had applied for a section 485 visa and gave his papers to the agent, who filed the application on his behalf. 

21. In reply, the applicant again mentioned the agent.  He said he was a student and did not know how to apply.  He said words to the effect:

    “I went there with my documents.  He applied on my behalf.”

22. Counsel had already referred to s.98 of the Migration Act and he had also submitted that the agent clearly had authority to act for the applicant, who was aware that his class 485 visa application had been lodged as is plain from the email at CB11.  I accept the submission of the Minister that it was clearly open to the Tribunal to conclude that an agency relationship existed between the agent and the applicant and that the applicant had authorised the making of the visa application. 

23. In Sran v Minister for Immigration [2014] FCCA 37 at [44]-[55], Judge Nichols analysed a similar set of circumstances. I respectfully agree with His Honour’s conclusion that an indifference to the detail of the application submitted by the agent (of which application the applicant himself clearly had knowledge) does not defeat a finding of agency. That is the situation that obtained in this case also.

24. In all the circumstances, it is clear that the decision of the Tribunal should not be overturned.  There is no jurisdictional error even pointed to, let alone demonstrated by, the applicant in the Tribunal’s process of reasoning, and the application will therefore be dismissed with costs. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  23 January 2015