HARSEV v Minister for Immigration
[2016] FCCA 858
•15 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARSEV & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 858 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – application listing 6 grounds of review – all grounds clearly constituting merits review – no error in Tribunal’s reasoning – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.97 |
| Cases cited: Trivedi v Minister for Immigration [2014] FCAFC 42 Batra v Minister for Immigration [2013] FCA 274 SZGJO v Minister for Immigration [2006] FCA 393 Singh v Minister for Immigration [2015] FCCA 2776 |
| First Applicant: | HARSEV |
| Second Applicant: | SIDAK AUJLA |
| Third Applicant: | MANJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1983 of 2014 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 12 April 2016 |
| Date of Last Submission: | 12 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 15 June 2016 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the FirstRespondent: | Mr Rogers |
| Solicitor for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the Second Respondent be changed to ‘Administrative Appeals Tribunal’.
The Application filed 30 September 2014 is dismissed.
The First and Third Applicants shall pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1983 of 2014
| HARSEV |
First Applicant
| SIDAK AUJLA |
Second Applicant
| MANJIT SINGH |
Third Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an application filed on 30 September 2014 the applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 3 September 2014. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants Skilled (Provisional) (Class VC) visas. There are six grounds of application, all of which challenge, in effect, factual findings made by the Tribunal. It is clear that this form of merits review is not permissible and, in any event, the challenges asserted are not made out. It follows that the application will be dismissed with costs.
The applicant filed an affidavit contemporaneously with her application. She is the primary applicant and the other two applicants are only included as dependent family members, namely, her husband and child. The affidavit relevantly asserts that she seeks review of the Tribunal decision, asserts that she is an innocent student who came to Australia to study and went to S & S Migration agents.
She goes on to say that she never knew that S & S Migration would lodge a fraud or fake visa application with false and misleading Trades Recognition Australia (“TRA”) assessment details and that she never instructed S & S Migration to fill in her visa application with fake TRA assessment numbers. Finally, she asserts that the Tribunal did not take into account her evidence on the conduct of S & S Migration.
The applicant was self-represented, with the assistance of an interpreter at Court and her oral submissions were, as counsel for the first respondent submitted, essentially a repeat of her claim of innocence in the matter.
Counsel for the First Respondent pointed out that that assertion was rejected by the Tribunal, which found that the applicant was, in fact, complicit in the misconduct of S & S Migration. Counsel also referred to Trivedi v Minister for Immigration [2014] FCAFC 42, which provides that, in any event, it is not necessary for an applicant to be so complicit in order to encounter the difficulties that she did in this case. In the particular circumstances of the case, it is appropriate to commence with the Tribunal’s decision.
The Tribunal noted that this was an application for review of a decision of the delegate. The delegate refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.485.224 of Schedule 2 to the Migration Regulations 1994 and, in particular, Public Interest Criterion 4020 (PIC 4020). The Tribunal paraphrased the requirements in the Regulations and noted at paragraph 6 that even where the Regulations were not satisfied, PIC 4020(1) and (2) can be waived if there are compelling or compassionate reasons for granting the visa. The Tribunal went on to consider whether the applicant had given or caused to be given a bogus document or information that was false or misleading in a material particular.
The Tribunal noted that the term “information that is false or misleading in a material particular” is defined in PIC 4020(5) and the term “bogus document” is defined in s.97 of the Migration Act 1958. The reference in s.97 to a document that was obtained because of a false or misleading statement has no requirement that the statement be relevant to a criterion for the grant of the visa, Batra v Minister for Immigration [2013] FCA 274. The Tribunal, in my view, correctly, said that the requirement in PIC 4020(1) not to provide a bogus document or false and misleading information applies whether or not the Minister became aware of same.
It also applies whether or not the document was provided by the applicant knowingly or unwittingly. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister or the Tribunal to conclude that the applicant was aware that the information was purposely untrue in order for PIC 4020 to be engaged (Trivedi). The Tribunal noted that the Department’s file indicated that the applicant entered Australia in March 2009 as a student. On 18 February 2001 she made an application for a subclass 485 (Skilled Graduate) visa, in which it was stated that she had undertaken a hairdressing course and had obtained a skills assessment as a hairdresser from Trades Recognition Australia on 16 June 2010.
A TRA reference number was given. In due course, an officer of the Department sent a letter to the applicant on 20 February 2012, putting adverse information to her for comment. A departmental investigation had identified a file with her details in the offices of a firm, S & S Migration, which was known to have lodged applications containing false and misleading information with the Department. The Department had contacted TRA and had been informed that the TRA reference the applicant had provided did not exist and there was no record of TRA providing a skills assessment to the applicant.
It was therefore alleged that the applicant had provided false and misleading information to the Department and did not appear to satisfy PIC 4020. The delegate, as earlier indicated, on 10 May 2012, refused the application for a visa on the basis that the applicant did not satisfy PIC 4020 as she had provided false and misleading information in a material particular in relation to her visa application, namely, the false TRA reference. The waiver in PIC 4020 (4) was not raised by the facts of the case.
The Tribunal set out the applicant’s evidence given at the hearing before it at Court Book (“CB”) 99-101. Inter alia, this included that S & S Migration dissuaded the applicant from applying for a student visa as they could procure a work permit for her which would be valid for five years. The applicant said that she was not familiar with the visa subclasses and only knew that she came on a visa subclass 572. She did concede that she had some idea that completing a hairdressing course was a possible pathway to a temporary skilled visa but insisted that she accepted the work permit advice and had no reason to question how it was possible to obtain permission to remain in the country so easily.
At CB101 the Tribunal recorded two relevant dot points, namely,
“On the one hand, the applicant claimed that from about the middle of 2011 she knew that S & S Migration had closed down and knew that she was ‘in trouble’. She was trying to get certain scores in an English language test, Occupational English Test (OET), in order to be able to enrol in a nursing course.”
“On the other hand, she admitted that she did not retain the services of any other migration agents, nor the Department of Immigration directly, between the middle of 2011 and the time when her visa was refused in May 2012.”
The Tribunal recorded various requests for extensions of time made by her and found at paragraphs 13-15 CB102:
“Based on the evidence set out above, the Tribunal finds that by the middle of 2011 the applicant would have had strong reasons to suspect that the application lodged by S & S Migration was not ‘above board’ because S & S Migration had closed down and could not be contacted.
The Tribunal further finds that on 30 November 2011, upon receiving the first email from the delegate, the applicant would have had full knowledge that she did not, in fact, have a ‘work permit’ allowing her to remain in Australia for up to 5 years. As of that date, at the latest, she knew that there was an outstanding application for a visa which she was not eligible to be granted.
Between 30 November 2011 and 10 May 2012, when the application was refused by the delegate, the applicant knowingly attempted to extend her stay in Australia by delaying the inevitable refusal decision by the Department of Immigration. She knew that she was not eligible to be granted the visa subclass 485 and yet she requested several extensions of time, pretending that she would able to obtain the documents necessary to be granted the visa.”
The Tribunal went on to record at paragraph 16 that the applicant presented as somebody reasonably familiar with many visa criteria and did not appear to be a hapless, or uniformed victim of S & S Migration. The Tribunal found that the applicant caused false information to be given, namely, the false TRA reference, which indicated that she had undertaken a TRA skills assessment when, in fact, she had not done so. The Tribunal noted the applicant’s submissions to the effect that the applicant was a person who came from a culture where people do not question authority but found at paragraph 22, CB103:
“The Tribunal notes that in the present case it is the visa applicant who had knowledge that she was not eligible for the visa and that false or misleading information had been submitted on her behalf by S & S Migration.”
At paragraphs 24-25 the Tribunal observed:
“The Tribunal finds that the applicant was not entirely blameless and she not only should have known that false or misleading information may have been submitted; she had actual knowledge of it by 20 February 2012 at the latest.
By early 2012 the applicant had only managed to complete 4 units of a Certificate III course which had commenced almost 3 years earlier. The applicant did not take any steps to apply for another Student visa, she did not seek legal advice, she did nothing to rectify the problem despite knowing that S & S Migration must have engaged in some suspect practices, she did not seek to withdraw her unmeritorious application for a visa subclass 485, she did not advise the Department of Immigration that she could not be granted a visa because she did not have a positive skills assessment. She prosecuted the application at first by doing nothing between February 2011 (when it was lodged) and November 2011 when she received an email from the Department of Immigration, and then for almost another 6 months, by promising to provide further documents to the Department of Immigration. Finally, she sought review of this refusal to this Tribunal, thus prolonging her stay in Australia by a further 2 years, in the full knowledge that she could not be granted the visa.”
The Tribunal went on to find that the applicant was complicit in the fraud but that this was irrelevant and referred to Trivedi at [49]-[50]. The Tribunal found that the applicant did not meet PIC 4020(1) and noted that the applicant had not advanced any reasons why the Tribunal should exercise its discretion to waive PIC 4020(1). The Tribunal noted that the applicant’s representative expressly stated that she would not be advancing any claims in relation to the waiver. Accordingly, the Tribunal affirmed the decision under review.
The six grounds of review are:
“1. The MRT did not accept that I was an innocent victim of fraud by S & S Migration.
2. I never applied for any TRA Skills Assessment.
3. I never knew that S&S Migration would lodge a fake visa application with fake TRA assessment numbers.
4. I never myself did, nor did I instruct S & S Migration to lodge a fraudulent visa application.
5. I never supplied any false or misleading information.
6. I am an innocent international student who came to Australia to study and make a better future.”
All of those grounds of review fly in the face of the Tribunal’s findings. The Tribunal was clearly aware of the applicant’s assertion that she was an innocent victim. It expressly found that she was not. It found that she was complicit in the fraud. The applicant says she never applied for a TRA skills assessment. That is not a matter in issue. It was accepted that she had not made such an application. The applicant said in grounds 3 and 4 that she did not know and did not instruct S & S Migration to lodge a fraudulent visa application. The question, however, as the first respondent’s written submissions point out under PIC 4020, is whether the applicant had given or caused to be given the false information.
The evidence of the applicant, as the first respondent’s written submissions point out, included that she had consulted S & S about a student visa extension, but accepted their advice to apply for a work permit and paid S & S to make the application. As at January 2011 when the visa application was lodged, the applicant had only completed half the units necessary to obtain her qualification in hairdressing. After the visa application was lodged the applicant had been in communication with the Department about the progress of the application and had sought extensions of time to provide documents to the Department.
The Tribunal found on the entirety of the evidence that the applicant had indeed caused the information to be given to the Department. It is clear that the agent was authorised to make the application, and even if the authorisation did not specifically cover the inclusion of the tainted information she is still fixed with its content (see SZGJO v Minister for Immigration [2006] FCA 393 and Singh v Minister for Immigration [2015] FCCA 2776). The applicant’s ground 5 asserting that she never supplied false or misleading information must fail. It runs wholly contrary to the findings of the Tribunal, and ground 6 is misconceived. The Tribunal found that the information about the TRA assessment had the necessary quality of purposeful untruthfulness and there was evidence clearly that satisfied the findings made.
In truth, the applicant’s application is, as counsel submitted, essentially a matter of merits review. The Tribunal’s findings were clearly open to it on the materials before it, and it follows that the Tribunal did not fall into jurisdictional error. The Tribunal was clearly aware of the relevant law, aware of the task it was required to perform and did so in a way in which, in my view, was completely unobjectionable. As earlier indicated, the application must be dismissed.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 15 June 2016
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