Gill v Minister for Immigration

[2016] FCCA 1493

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1493

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Skilled Provisional (Class VS) visa – show cause hearing – whether the Tribunal considered all relevant factors –whether the application was made by the applicant – whether the applicant’s migration agent acted outside of his authority – no arguable jurisdictional error identified – application dismissed under r.44.12.

Legislation:

Federal Circuit Rules 2001 r.44(12)

Migration Act 1958 (Cth), ss.234, 476.

Cases Cited
Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118.

Applicant: JASPAL SINGH GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 441 of 2015

Judgment of: Judge Street

Hearing date: 27 May 2016

Date of Last Submission: 27 May 2016

Delivered at: Adelaide

Delivered on: 27 May 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the First Respondent: Ms Milutinovic

ORDERS

1. The application is dismissed pursuant to rule 44.12 of the Federal Circuit Court Rules 2001.

2. The applicant pay the costs of the first respondent fixed in the amount of $3,416.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

ADG 441 of 2016

JASPAL SINGH GILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 9 November 2015 affirming a decision of the delegate not to grant the applicant a Skilled Provisional (Class VC) visa.

2. The applicant is a citizen of India and was first granted a visa in 2008.  On 22 October 2011 at 7.35 pm, an electronic application was lodged for a skilled migrant visa described as a Skilled Graduate Temporary (Class VC) subclass 485 visa.  That electronic lodgement included information about the applicant’s visa number, the applicant’s passport, the applicant’s residence, the applicant’s mobile number, the applicant’s email address and included in it information that was false about the applicant’s nomination, the applicant having undertaken an IELTS test and, on the face of it, the application had been completed by the applicant without assistance.

3. On 22 October 2011, a delegate declined to grant the visa on the basis that the criteria for the grant of a visa were not satisfied.  Although the material relating to the notification is not before the Court, it appears that the applicant became aware of the decision of the delegate and applied for a review before the Tribunal.  For reasons not entirely clear to the Court, on 25 March 2015, the Department determined that the applicant had not been correctly notified of the decision and, notwithstanding the review decision of the Tribunal, notified the applicant again of the decision of the refusal of his application on 7 September 2012.  The applicant then lodged, with the assistance of a migration agent, an application for review on 8 April 2015.

4. By a letter dated 27 October 2015, the applicant was invited to appear before the Tribunal and the applicant appeared on that date to give evidence and present arguments, as well as being represented by his migration agent.  The applicant gave evidence to the Tribunal in relation to the completion of the original application and asserted that his then agent had not discussed the content with him. The applicant says and that he was told by his agent that he would get a two-year work visa and that some time later the applicant went to the migration agent’s office who assisted him to complete the application and he was not there.

5. The Tribunal found that no question of the agent’s authority to complete the visa application arose on the evidence and that it was  apparent that there had been a valid application made by the applicant for the visa.  There was no issue, but that the applicant did not satisfy the criteria for the grant of a subclass 485 visa and, accordingly, the Tribunal affirmed the decision of the delegate.

6. The applicant lodged an application in this Court seeking relief in relation to the decision of the Tribunal.  That application was filed on 26 November 2015, the grounds of which are as follows:

   I wish to submit my application to review my case in court as it was dismissed by DIBP and MRT. I applied for subclass 485 visa on 22 October 2011 which got refused due to false and misleading information about skills assessment. However, the case was falsely lodged by my agent without my consent and I did not ask him to lodge false visa on my behalf Therefore, I request the Federal Circuit Court to consider my case for justice because I am in the process of applying 457 visa but I need valid visa for that purpose.

   I wish to submit my application to review my case in court as it was dismissed by DIBP and MRT. I applied for subclass 485 visa on 22 October 2011 which got refused due to misleading information of the agent. I was not even aware that what type of visa had been submitted by him to Department. The agent told me that he would apply for a two year “work visa” and did not discuss any further details. The respected MRT member did not considered the factors of ours being unrelated and unknown with the issue and it was therefore difficult for me to explain my opinions and defend my claims which had affected the outcome significantly in opinion. I thereby request the court to accept my application for further hearing and provide justice to my case as I have all the required documents and I have many points to submit in front the Honourable Judge to prove my claims.

7. The grounds were supported by an affidavit, which is as follows:

   26/11/2015 I, Jaspal Singh Gill of 141 Searle Road, Waikerie (P.O. Box-449, Waikerie, SA- and my occupation is Mechanic Hand make oath and say: I wish to submit my application to review my case in court as it was dismissed by DIBP and MRT. I applied for subclass 485 visa on 22 October 2011 which got refused due to false and misleading information about skills assessment. However, the case was falsely lodged by my agent without my consent and I did not ask him to lodge false visa on my behalf Therefore, I request the Federal Circuit Court to consider my case for justice because I am in the process of applying 457 visa but I need valid visa for that purpose. I wish to submit my application to review my case in court as it was dismissed by DIBP and MRT. I applied for subclass 485 visa on 22 October 2011 which got refused due to misleading information of the agent. I was not even aware that what type of visa had been submitted by him to Department. The agent told me that he would apply for a two year “work visa” and did not discuss any further details. The respected MRT member did not considered the factors of ours being unrelated and unknown with the issue and it was therefore difficult for me to explain my opinions and defend my claims which had affected the outcome significantly in opinion. I thereby request the court to accept my application for further hearing and provide justice to my case as I have all the required documents and I have many points to submit in front the Honourable Judge to prove my claims.

8. At the commencement of the hearing, the Court explained to the applicant that the matter is listed for a show cause hearing under r.44.12 of the Federal Circuit Court Rules2001.  The Court explained that the nature of the hearing was to determine whether there was an arguable case, that the decision of the Tribunal was not made lawfully, or an arguable case that the Tribunal’s decision was not made fairly.  The Court explained that the nature of the error had to be an excess of statutory powers by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that, if satisfied there was an arguable case, the matter would be fixed for further hearing, and that if not satisfied there is an arguable case, the application would be dismissed.  The applicant confirmed he understood the nature of the case as explained by the Court.  The Court explained it would identify the evidence and then hear submissions from the applicant and then hear submissions from the first respondent then submissions from the applicant in reply.

9. At the commencement in identifying the evidence, the Court raised with the parties that the applicant’s affidavit suggested that there was a potential jurisdictional fact issue as to whether the application was made by the applicant. The Court drew the applicant’s attention to the fact that the affidavit appeared to make inconsistent assertions and that the applicant did not have to have the affidavit read and the Court told the applicant that there was a risk that, if read, the Court might make adverse findings in relation to the applicant. The Court drew the applicant’s attention to s.234 of the Migration Act 1958 and informed the applicant of his privilege against self–incrimination.  The applicant maintained that he wished to have his affidavit read and, accordingly, the affidavit was admitted into evidence.

10. Counsel for the first respondent sought to cross-examine on the jurisdictional fact as to whether the application was made by the applicant.  It is clear from the answers given in evidence by the applicant that the applicant did, in fact, reside at the address that was identified in the application and the applicant’s answers in relation to information in relation to his visa number and the telephone number support the finding that the applicant provided the information to the agent for the completion of the application that was lodged.  In those circumstances, it is clear that the application was, in fact, made by the applicant and that the Tribunal had jurisdiction.

11. I should note that in relation to that cross-examination, the applicant was informed of his rights and privilege against self-incrimination and that the applicant maintained a desire to give evidence.  I do accept the applicant’s evidence in relation to the assertion that he did not have a computer and I accept the applicant’s evidence that he attended on an agent to complete the form.  I do not accept that that agent was at any time acting outside the scope of the applicant’s authority to the agent.  I do not accept that the applicant provided false information that was not known to the applicant to be false.

12. The Tribunal complied with its statutory obligations and gave the applicant an opportunity to present evidence and arguments and the applicant had a genuine hearing.  Nothing said by the applicant from the bar table identified any basis upon which it could be said the Tribunal’s decision was affected by any arguable error of law.  The application on its face does not disclose any arguable case of jurisdictional error.  The grounds identified at the commencement say:

    “I applied for a subclass 485 visa”

13. That fact is also asserted more than once in the applicant’s affidavit.  It is apparent that the agent was acting within the scope of the agent’s authority in making the application. The false information was provided by the applicant’s agent acting within the scope of the agent’s authority.  The criticisms by the Tribunal in relation to the applicant’s conduct were clearly open.  The applicant’s desire to pursue some other visa is not a basis upon which there could be said to be any jurisdictional error by the Tribunal.

14. I take into account the caution that must be exercised in relation to r.44.12 of the Federal Circuit Court 2001 rules, see Spencer v the Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, at paras.[24]-[25] and [59]-[60]. I am satisfied that the application failed to disclosed any arguable case. I am satisfied that this is an appropriate case in which to exercise the Court’s powers under r.44.12 of the Federal Circuit Court Rules2001. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street.

Date: 22 June 2016