GEETANJALI v Minister for Immigration

[2014] FCCA 1167

FEDERAL CIRCUIT COURT OF AUSTRALIA

GEETANJALI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1167

Catchwords:

MIGRATION – Judicial review – Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – information that was false or misleading in a material particular – alleged fraud by migration agent – Public Interest Criterion 4020 – whether the requirements of Public Interest Criterion 4020 should be waived – no jurisdictional error demonstrated – application dismissed – costs awarded.

Legislation:  

Migration Act 1958 (Cth) s.359A

Craig v State of South Australia (1995) 184 CLR 163

Applicant: GEETANJALI GEETANJALI

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

MIGRATION REVIEW TRIBUNAL

File Number: BRG 1050 of 2013

Judgment of: Judge Burnett

Hearing date: 1 April 2014

Date of Last Submission: 1 April 2014

Delivered at: Brisbane

Delivered on: 1 April 2014

REPRESENTATION

The Applicant appeared on her own behalf.

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. That the application field on 18 November 2013 be dismissed.

2. That the Applicant pay the Respondents’ costs fixed in the sum of $5800.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 1050 of 2013

GEETANJALI GEETANJALI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. The Applicant is a national of India.  She travelled to Australia in December 2008 as the holder of a student visa. She applied for a Skilled (Provisional) (Class VC) visa (“skilled visa”) on 4 March 2011.  On 6 June 2012 a delegate of the First Respondent decided to refuse the grant because the delegate was not satisfied that the Applicant had met the Public Interest Criterion 4020 (“PIC 4020”).  In particular, the delegate found that the Applicant had provided information that was false or misleading in a material particular by referring to a Trades Recognition Australia (“TRA”) skills assessment when there was no evidence of such an assessment being issued.

2. She sought review of the delegate’s decision on 14 June 2012 and appeared before the Tribunal on 22 October 2013 to give evidence and present arguments.  The Tribunal determined that there were essentially four issues on review:

   a)Did the Applicant make a valid application for the skilled visa?

   b)Had the Applicant given or caused to be given a bogus document or information that was false or misleading in a material particular?

   c)If so, are there circumstances to waive that provision that justify the granting of the visa?

   d)Have the Applicant’s skills been assessed as suitable for the nominated skilled occupation by the relevant assessing authority?

3. The Tribunal proceeded to consider and address each of those matters. Prior to the hearing on 22 October 2013, the Tribunal had written to the Applicant pursuant to s.359A of the Migration Act 1958 (Cth) (“the Act”). It explained to the Applicant that a departmental investigation had revealed that “S & S Migration”[1] had provided false or misleading information to the Department on behalf of multiple visa applicants and, further, that the TRA assessment reference number she had provided in her visa application had been referred to TRA for verification which confirmed that there was no record of their having provided the Applicant with a skills assessment.

   [1] The business which had assisted the Applicant in the lodgement of her visa application.

4. The Applicant, in response to that letter from the delegate, claimed that she had been the victim of a scam perpetrated by S & S Migration and that she had never instructed S & S Migration to lodge a 485 visa application, but that she thought she was applying for a work visa.  She was then invited to the Tribunal to give evidence and make submissions.  As I have noted, the Tribunal identified four issues, but the issue of this misleading and/or false information was particularly important to the Tribunal.

5. In considering the contention that the Applicant had been the subject of a scam, the Tribunal carefully considered evidence that she gave to it concerning her history in Australia, particularly as a student, and other information that she gave, for example that she did not have an employer, notwithstanding the fact that she thought she was applying for a work visa. The Tribunal concluded that, despite her having every opportunity to check the content of her application before it was lodged, so as to ensure that its contents were accurate, the Applicant was, at best, indifferent to the veracity of her application.

6. The Tribunal also noted that the Applicant had a bridging visa grant letter that she had received and that the letter expressly referred to her application for the skilled visa. Accordingly, it ought to have been apparent to her what sort of application she was making. As the Tribunal noted at [14], it considered it significant that the Applicant was seeking the review of a decision to refuse to grant her the skilled visa, even though she claims that she had never applied for the skilled visa and never intended to make that application.

7. The Tribunal noted that the Applicant was seeking a review of the skilled visa decision and pursuing that review after the situation was explained by her then-present representative. The Tribunal considered this situation to suggest that the Applicant always knew that the application made by S & S Migration was for a skilled visa. Having regard to those matters, it concluded at [15]:

   “Overall, the Tribunal does not accept that the applicant genuinely believed the agent had applied for a work visa. The Tribunal finds that the applicant instructed the agent to make the application and paid the fee to the agent to do so and provided some information to the agent …”

8. The Tribunal noted the Applicant’s contention that the situation had transpired without her instructions or authority but, by reference to cases of a similar kind, proceeded to make these remarks at [18]:

   “The Tribunal is of the view that the circumstances of the present case are not dissimilar. The applicant instructed S&S Migration to lodge a visa application on her behalf. The applicant paid a fee to the agent to do so. The applicant left the details of the application to the agent. She appeared to have been indifferent as to the content or the nature of her application. The Tribunal does not accept the applicant’s evidence that she did not know about the skilled visas and thought she was applying for a work visa but even if the Tribunal were to accept such claims, the Tribunal finds that having instructed an agent to file an application on her behalf and having paid a fee to do so, the agency agreement was established and the agent acted on the applicant’s behalf by lodging the application for the subclass 485 visa. The Tribunal finds that the application for the subclass 485 visa was validly made.”

9. The next issue the Tribunal considered was the question of whether or not the Applicant had caused misleading information to be given. The Tribunal noted that when making the application she had nominated her occupation as “cook” and stated that she had applied for a skills assessment from TRA on 12 January 2009; she had provided a TRA reference/receipt number. As I have earlier noted, checks with the TRA database showed that this data was incorrect.

10. When queried by the Tribunal, the Applicant confirmed in her oral evidence that she did not apply for a TRA skills assessment and had not obtained one; it follows that the reference number which she had provided on the application form was not a genuine number. Accordingly, the information was false or misleading in a material particular.  Having regard to that matter, the Tribunal considered PIC 4020. It did not accept the Applicant’s contention that PIC 4020 implied a degree of knowledge on her part.  By reference to authority, the Tribunal concluded that, even if it were to accept that the Applicant had no knowledge of what was submitted on her behalf by the migration agent, such an acceptance would not affect the operation of PIC 4020.  I also note that, in any event, the Tribunal did not accept that the Applicant had no knowledge of those matters.

11. Based upon its finding of fact concerning knowledge and having regard to the law, the Tribunal concluded that the Applicant had caused the Minister to be given false or misleading information on a material particular and that that evidence was relevant to the skilled visa. Accordingly, it was not satisfied that the Applicant had met the requirements of PIC 4020(1). Having determined that matter against the Applicant, the Tribunal then turned to consider whether PIC 4020 should be waived.

12. It noted that the relevant test was whether there were compelling circumstances that affect the interests of Australia or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Again, the Tribunal noted the Applicant’s contention that she was the victim of a fraud and her concern that there was a public interest in the protection of the interests of international students.

13. Notwithstanding those matters and the evidence provided by the Applicant, the Tribunal was not satisfied on the evidence that there were any such compelling or compassionate circumstances.  Accordingly, it was not satisfied that the Applicant had satisfied PIC 4020. 

14. Finally, the Tribunal considered whether or not the Applicant’s skills had been assessed as suitable for a nominated skilled occupation via the relevant assessing authority.

15. It had earlier addressed that ground in the context of the second issue for consideration and, consistent with its earlier finding, concluded that it was not satisfied that the Applicant’s skills had been assessed as suitable by the relevant assessing authority for her nominated skilled occupation. Accordingly, she had not satisfied the Tribunal that she had met the requirements of a cl. 485.221 visa application and the Tribunal found that the decision of the delegate not to grant the skilled visa ought be affirmed.

16. On 18 November 2013 (that is within the time permitted by the Act) the Applicant made application to this Court for review of the Tribunal’s decision. Although it is not expressly stated in the application, I infer that Applicant seeks an order for certiorari the setting aside the decision. The grounds of her application are threefold:

    “(1) IGNORING RELEVANT MATERIAL WHICH WAS PRESENTED IN SUBMISSION

    (2) RELYING ON IRRELEVANT MATERIAL

    (3)TAKING MATTER PERSONALLY”

17. I note that, notwithstanding the court’s directions, the Applicant did not file any submissions in support of her application. She has, however, made oral submissions today. In the course of her oral submissions she has essentially rehearsed the same matters that were put to the Tribunal, in particular the complaint that she was not responsible for the errors or false information contained in the application, and that she had no knowledge of those matters as they were matters undertaken by her migration agent. She pleads ignorance of the law and of the relevant regulations.

18. Respectfully, the Applicant has not addressed the three grounds that she has particularised in her grounds of application. However, having regard to those matters, I will address them as best I can. As I have earlier noted, the decision of the Tribunal is extremely comprehensive. It appears to outline in detail the contentions made by the Applicant and addresses the matters that were addressed to the Applicant in the letter forwarded to her pursuant to the s.359A invitation.

19. There appears to be nothing which suggests that the Tribunal ignored relevant material which was presented in submission.  Indeed, as I have sought to summarise in my review of the Tribunal’s decision above, the Tribunal has addressed the arguments and contentions made by the Applicant in respect of the matters which were put by her before it.  In my view, there is nothing in support of the contention made in ground 1. 

20. Ground 2 alleges a reliance on irrelevant material.  There is nothing contained within the Tribunal’s statement of decision and reasons which suggests that it has acted upon any irrelevant or improper material. Each of the matters addressed by the Tribunal appear to be probative of and relevant to the issues being considered discretely and collectively.  In my view, there is nothing in support of the Applicant’s second ground of application. 

21. Ground 3 is stated to be “taking matter personally.” This does not appear to be a proper ground of application.  It does not disclose any matter which could be seen to give rise to jurisdictional error in terms of the conventional formula provided for in Craig v State of South Australia (1995) 184 CLR 163 and other cases. This ground also fails.

22. It follows that the Applicant has failed to demonstrate any error on the part of the Tribunal. The Tribunal’s decision is a privative clause decision.  No jurisdictional error has been demonstrated.  It follows the application is dismissed.

23. The respondents seek costs. The Applicant states that she cannot afford to pay costs. Impecunity is not a sufficient basis to resist a costs order. I will direct that the Applicant pay the respondent’s costs fixed in the sum of $5800.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Burnett.

Date: 5 June 2014