Gurung v Minister For Immigration and Anor (No.2)

[2015] FCCA 1097

FEDERAL CIRCUIT COURT OF AUSTRALIA

GURUNG v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 1097

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Provisional) (class VC) visa – procedural fairness – bogus document – no jurisdictional error.

Legislation:  
Migration Act 1958, ss.338, 357A, 359A, 476

Minister v Ahmed (2005) 143 FCR 314;
Zubair v Minister (2004) 139 FCR 344;
Clisdell v Commissioner of Police (1993) 31 NSWLR 555;
Calvin v Carr [1980] AC 574 (PC);
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 (FCAFC)

Applicant: SABITA GURUNG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 494 of 2015

Judgment of: Judge Street

Hearing date: 28 April 2015

Date of Last Submission: 28 April 2015

Delivered at: Sydney

Delivered on: 28 April 2015

REPRESENTATION

Counsel for the Applicant: Mr L. Karp

Solicitors for the Applicant: Kinslor Prince Lawyers

Counsel for the Respondent: Mr B. O’Donnell

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The amended application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 494 of 2015

SABITA GURUNG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW 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 affirming a decision of the delegate not to grant the applicant a Skilled Provisional (class VC) visa.  The application identifies the following grounds:

   1. The Second Respondent (the Tribunal) did not have jurisdiction under section 338 of the Migration Act 1958 ("the Act") of the Migration Regu1ations 1994 ("the Regulations") to affirm the decision of the delegate of the First Respondent (the Minister) to refuse the application for a Skilled (provisional) (Class VC) visa as the First Respondent has not made a decision under section 65 of the Act.

   Particulars (the particulars previously pleaded are wholly replaced by the following)

   (a) The Minister notified the applicant by letter dated 23 November 2012 that he had "reversed" his decision of 20 April 2012 to refuse the applicant's application for a Skilled (Provisional) (class VC) visa, and that consideration of her visa application continues.

   (b) The decision to reverse and further consider the applicant's visa application was made lawfully.

   (c) The Minister did not further consider the applicant's application for a Skilled (Provisional) (class VC) visa. Rather, the Minister merely renotified the applicant of the purported decision made on 20 April 2012.

   (d) As a result, there was no decision pursuant to s, 65.

   2. Alternatively to Ground 1 above, the Tribunal acted in breach of s. 359A of the Migration Act.

   Particulars

   a) Failure to disclose to the applicant information that the Tribunal extracted from the Department's file in the applicant's matter, being the information set out at paragraph 16 of its decision.

   b) Failure to disclose the information referred to in paragraph (a) above in the manner required by s. 359A.

   3. Alternatively to grounds 1 and 2 above, the Tribunal breached the requirements of natural justice in a manner that was not foreclosed by s. 3 57 A of the Migration Act.

   Particulars

   a) Failure to disclose to the applicant information that the Tribunal extracted from the Department's file in the applicant's matter, which it set out at paragraph 16 of its decision, such information being credible, relevant and significant to the Tribunal's review.

2. The history of this matter and the events giving rise to the decision of the Tribunal are summarised in the Tribunal’s reasons at paras. 6-29.  The applicant’s original application before the delegate was one in which there was an agent, S & S Migration, involved, and that agent had engaged in a fraud.  That agent was the recipient of a notification of the delegate’s decision, which notification the applicant did not receive, and did not file any application for review on the merits before the Tribunal in time. 

3. It was in those circumstances that the solicitor identified arguments as to why the delegate’s decision was wrong and affected by the fraud of the migration agent, contending that the decision was a nullity.  It was in those circumstances that the Department issued a letter dated 23 November 2012 as follows:

   Dear Ms Gurung,

   This letter refers to your application for a 485 Skilled Graduate visa. A decision to refuse this visa was made on 20 April 2012.

   Following that decision a submission was received from Kinslor Prince Lawyers on your behalf, along with a 956 form indicating that they were acting for you in relation to the specific matter of the renotification or your visa. In response this submission, a decision has been made to reverse the decision to refuse your 485 visa. This has been given effect today. The reversal of the refusal returns your Bridging Visa A to effect whilst consideration of your application continues.

   To date no subsequent decision has been made on you application.

   A new Case Officer, Himadhu, has been allocated to consider your application and can be contacted at [email protected]. Please mark any emails with Att: Hamadhu in the subject line and include your Client ID number.

   Contacting the Department

   You can contact us with a general enquiry in a number of ways including by email, through our website, by telephone through our Service Centres or offices around the world, or in person. In Australia you can call 13 18 81 between 8:30 am and 4:30 pm Monday to Friday. Details on contacting our offices outside Australia are available on our website at sincerely

   Fran Ibara

   Assistant Director

   Brisbane Graduate Processing Centre

   Department of Immigration and Citizenship

4. Contrary to the tenor of that letter, what, in fact, occurred was that the decision of the delegate was renotified to the applicant on 16 July 2014.  That renotification permitted the applicant to invoke a merits review hearing before the Tribunal, which the applicant’s solicitor took advantage of by lodging an application for review on 25 July 2014.  The solicitor lodged submissions seeking to maintain that the decision of the delegate was a nullity and sought to develop an argument before the Tribunal that the decision of the delegate was a nullity and, therefore, the Tribunal did not have jurisdiction. 

5. This argument was advanced on the premise that if, in fact, the Tribunal accepted the solicitor for the applicant Mr Prince’s argument that the delegate’s decision was a nullity and accepted the Tribunal did not have jurisdiction, then the applicant’s application would somehow remain alive for fresh consideration by the Department.  It was on that flawed reasoning that when given notification of the hearing before the Tribunal, Mr Prince gave advice to his client about attendance at the hearing, and the applicant notified the Minister through Mr Prince that the applicant did not propose to attend the hearing.  The applicant was notified in accordance with the statutory regime on 1 December 2014 to appear before the Tribunal on 23 January 2015. 

6. I am satisfied that the Tribunal complied with the statutory requirements in respect of the notification of the hearing.  The applicant declined to attend the hearing.  It was in those circumstances that the Tribunal made adverse findings that were clearly open to the Tribunal relating to the application for the applicant’s Skilled (Provisional) (class VC) visa and adverse findings in relation to compelling circumstances. 

7. The substance of the argument sought to be developed by Mr Karp in relation to ground 1 is that the delegate’s decision, allegedly being a nullity, is a nullity for all purposes, and, therefore, the Tribunal did not have jurisdiction. The purpose of the right of review under s.338 is to permit the Tribunal to deal with an excess of jurisdiction by the delegate. It would be a surprising construction of s.338 that an excess of jurisdiction by the delegate did not fall within the scope of s.338.

8. I reject the submission by Mr Karp that an excess of jurisdiction by a delegate falls outside the scope of s.338. I reject the submission that an excess of jurisdiction arising from a fraud falls outside the scope of s.338. The Tribunal was correct in holding that it had jurisdiction. I accept that notification of the delegate’s decision did not comply with the requirements of the Act due to the fraud of the migration agent, but I reject the contention that the delegate’s decision was a nullity. I also accept the submissions of the Minister that the decision in this case, even if the delegate’s decision were for legal purposes a nullity, was, in fact, a decision for the purpose of invoking the merits review (see Minister v Ahmed (2005) 143 FCR 314 esp at [33] (Hely, Gyles and Allsop JJ); Zubair v Minister (2004) 139 FCR 344 esp at [29]-[32] (Finn, Mansfield and Gyles JJ); Clisdell v Commissioner of Police (1993) 31 NSWLR 555; Calvin v Carr [1980] AC 574 (PC); Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 (FCAFC). In these circumstances, there is no substance in relation to ground 1 of the amended application.

9. In relation to ground 2, it is alleged that the information identified in para.16 of the Tribunal’s reasons is information of a kind falling within s.359A:

   16. As a result, on 22 November 201218 the Department took the following position in relation to the submissions the applicant’s representative had put forward on her behalf:

   In terms of [the applicant’s] case, based on the outcome of [third party details omitted], which determined that a re-notification was required, in conjunction with the original [third party details omitted] position, please arrange for the decision to be re-notified. I’m told by [third party details omitted] that this involves un-doing the original decision in ISCE, rerecording the original decision date but using the current notification date with the newly advised address (& using the re-notification template letter…19

10. I am satisfied that the information is not information that constituted a rejection, denial or undermining of the applicant’s claim to a visa in this case. It is not, in my opinion, information of a kind falling within s.359A, nor is it information that was adverse to the applicant. The information was of a kind that identified the renotification enabling the applicant to seek to obtain the merits review. That is not information of a kind falling within s.359A. In these circumstances, ground 2 is without substance.

11. In relation to ground 3, whilst I accept that the Tribunal must comply with the dictates of procedural fairness informed, in part, by s.357A and that those principles of procedural fairness travel beyond the content of s.357A. This is not a case in which the applicant was denied procedural fairness by reason of not having disclosed the content of para.16 of the Tribunal’s reasons. It is crystal clear that the applicant was alive to the jurisdictional issue in respect of the renotification, and, indeed, the applicant sought to advance submissions as to why the delegate’s decision was a nullity.

12. There was no adverse impact upon the applicant by reason of being unaware of the precise background given to the department in respect of the renotification that occurred in this case.  Moreover, the content of the information in para.16 is not information which was credible, relevant or significant to the Tribunal’s review and is not information of a kind that, in my opinion, in any way disadvantaged the applicant in being able to advance the arguments about alleged jurisdictional error. 

13. I should note it was suggested from the bar table that if the solicitor for the applicant had been aware of the content of para.16, he may have taken a different course.  That proposition does not neatly sit with the sworn evidence of Mr Prince, which was to this effect:

    17. If I had been of the view that the Tribunal did have, or may well have had, jurisdiction then I would certainly have advised the Applicant to attend the oral hearing as it would have then been in our client's interests to so attend.

14. It is crystal clear that Mr Prince had a fixed view about his jurisdictional argument.  I can see no adverse consequence to the applicant from the forensic decision made to pursue the jurisdictional argument rather than to have the applicant attend to give evidence.  There is no jurisdictional error of the kind identified in para.3 in this case. 

15. The Tribunal made relevant findings:

    38. In the circumstances, and having regard to the evidence before it, the Tribunal finds that the Department re-notified the applicant on 16 July 2014 that her visa application had been refused on 20 April 2012 because she did not meet the requirements of clause 485.224. Specifically, in accordance with section 66 of the Act, the Tribunal finds that the renotification letter sent to the applicant on 16 July 2014 stated that the visa application had been refused because she did not satisfy clause 485.224. This letter also provided written reasons by attaching the reasons set out in the decision record dated 20 April 2012. The letter further stated that the applicant could seek a review of this decision and explained the timeframe in which and how she could do so.

    39. Consequently, the Tribunal is satisfied that the Department had made a decision in respect of the applicant’s subclass 485 visa application at the time the review application was lodged on 25 July 2014 and, therefore, that it has jurisdiction to review this matter.

16. It was in that context that the Tribunal, having found that there was jurisdiction, proceeded to invite the applicants to attend a hearing, and the Tribunal summarised the response that occurred in para.44.  Relevantly:

    We have spoken with the applicant and can advise our client does not intend to appear before the Tribunal.

17. It was in those circumstances that the Tribunal came to evaluate the issues arising before the Tribunal in relation to the bogus document and, relevantly, found:

    70. In this case, the visa application form lodged with the Department on 12 March 2011 positively stated that the applicant had received a skills assessment from Trades Recognition Australia on 19 April 2010 , and it also set out the purported reference number for that skills assessment.58

    71. However, there is information that casts doubts upon the correctness of this information. In particular, as set out in the primary decision record the applicant submitted with the review application, firstly, the fact that Trades Recognition Australia had no record of providing the skills assessment that was referred to in the applicant’s visa application. Secondly, documents or information relating to the applicant were located in the office of S & S Migration. Notably, this particular entity had been found to have lodged applications to the Department that contained false or misleading information. Specifically:

     There was an allegation that the applicant had lodged her subclass 485 visa application with the assistance of a business known as S & S Migration, which had been found to have lodged applications to the Department that contained false and misleading information;

     The Department had identified a file and records that directly linked the applicant and her visa application to the office of S & S Migration;

     The visa application lodged on behalf of the applicant with the Department included a Trades Recognition Australia reference number that indicated a successful skills assessment, but Trades Recognition Australia had no record of providing this skills assessment to her;

     Trades Recognition Australia had advised the Department that it had no record of the applicant, nor any record that she had ever held a skills assessment;

     On 17 February 2012 the Department had invited the applicant to comment on this information, but she had failed to do so;

     Therefore, it was alleged that the applicant had provided false or misleading information to the Department in respect of her application for a subclass 485 visa; and

     In her statutory declaration dated 12 June 201260 the applicant declared that she had approached S & S Migration of her own volition for assistance to apply for an 18-month work visa, being the subclass 485 visa. She also declared that he had provided a copy of her passport to Mr X and that she also paid him a fee of $2500 for this purpose. The applicant also stated that the information set out in the visa application lodged on her behalf that she had a skills assessment was incorrect.

    72. Therefore, the question that arises is whether these facts, or information, are sufficiently probative to constitute ‘evidence’ for the purposes of subclause 4020(1). The applicant was invited to appear before the Tribunal on 23 January 2015 to discuss these factual matters, but she did not do so.

    …

    83. Accordingly, the Tribunal is satisfied that the information that was included in the visa application lodged on 12 March 2011 that the applicant had applied for and received a favourable skills assessment from Trades Recognition Australia was relevant to clause 485.221. The Tribunal also finds that this is a criterion that the Minister may consider when making a decision on a subclass 485 visa. Therefore, the Tribunal finds that the information set out in the applicant’s visa application satisfied the requirements of paragraph 4020(5)(b).

    84. As a result, the Tribunal finds that the information set out in the visa application lodged on 12 March 2011 that the applicant had applied for and received a skills assessment from Trades Recognition Australia on 19 April 2010 was false and misleading in a material particular, as defined in subclause 4020(5).

    …

    89. As a result, the question arises as to whether it was the applicant who caused the false or misleading information in a material particular to be given to the Department on 12 March 2011.

    …

    125. Accordingly, the Tribunal finds that the applicant caused the false or misleading information regarding her skills assessment to be given to the Department through S & S Migration as her migration agent. Therefore, the Tribunal finds that the applicant gave, or caused to be given, false or misleading information in a material particular regarding whether her skills had been assessed by the relevant assessing authority when the visa application in her name was lodged on 12 March 2011.

18. It was in those circumstances that the Tribunal concluded that the applicant did not meet the requirements of cl.4020(1)(a) and subclause 4020(1), concluding:

    126. Consequently, for the purposes of subclause 4020(1), the Tribunal considers that the information that Trades Recognition Australia had no record of providing the skills assessment that was referred to in the applicant’s visa application, or any other skills assessment, along with the applicant’s evidence and submissions confirming this to be the case, constitute probative evidence that the applicant gave, or caused to be given false or misleading information in a material particular in relation to her application for a subclass 485 visa.

    127. As a result, the Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal or a relevant assessing authority information that is false or misleading in a material particular in relation to her application for a Skilled (Provisional) (Class VC) visa.

    128. Accordingly, the Tribunal finds that the applicant does not meet the requirements of paragraph 4020(1)(a) and subclause 4020(1).

1. The Tribunal turned to the issue of waiver and made an adverse finding in para.154 and then turned to the issue of compassionate or compelling circumstances and made the finding that appears in paras.162, 164, 165, 166, and 167:

   162. Therefore, given the evidence before it, the dictionary meanings of ‘compelling’ and ‘compassionate’, the relevant case law cited above, and the policy guidelines, the Tribunal is not satisfied that there are any circumstances in the applicant’s case that affect an Australian citizen, Australian permanent resident or eligible New Zealand citizen, either on an individual or cumulative basis, that are of a compelling or compassionate nature that they justify the waiver of public interest criterion 4020 and the grant of a subclass 485 visa to the applicant.

   …

   164. As a result, the Tribunal finds that the applicant does not satisfy paragraphs 4020(4)(a) and (b) and subclause 4020(4). Therefore, given its earlier finding in relation to subclause 4020(1), the Tribunal finds that the applicant does not satisfy the requirements of public interest criterion 4020 at the time of its decision.

   165. Consequently, the Tribunal finds that the applicant does not meet the requirements of subclause 485.224(a) and clause 485.224 at the time of decision and the visa application fails on this basis.

   166. In order to meet the criteria for a Subclass 487 (Skilled – Regional Sponsored) visa, the Tribunal observes that the applicant must meet clause 487.228 at the time of its decision. Clause 487.228 is drafted in similar terms to clause 485.224 and it also requires the applicant to meet public interest criterion 4020.

   167. Accordingly, for the reasons set out above in relation to public interest criterion 4020 and clause 485.224, the Tribunal also finds that the applicant does not satisfy clause 487.228 at the time of its decision. Consequently, the visa application also fails on this basis.

2. It was in those circumstances that the Tribunal affirmed the delegate of the delegate that had been renotified.  I am satisfied that there was no excess of jurisdiction by the Tribunal and that the Tribunal’s decision in relation to jurisdiction was correct. There is no jurisdictional error by the Tribunal.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 April 2015