Huang v Minister for Immigration
[2015] FCCA 496
•5 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUANG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 496 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of student visas – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.97 |
| Kaur v Minister for Immigration [2014] FCA 1276 Trivedi v Minister for Immigration [2014] FCAFC 42 (2014); 220 FCR 169 Patel v Minister for Immigration [2015] FCAFC 22 |
| First Applicant: | LING HUANG |
| Second Applicant: | XIANGHUI ZHENG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1750 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 5 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 5 March 2015 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Ms A Carr of DLA Piper |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1750 of 2014
| LING HUANG |
First Applicant
XIANGHUI ZHENG
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants student visas. There are two applicants, who are a husband and wife. The principal applicant was Ms Huang. Her husband applied as a member of her family group. He was a party to the review before the Tribunal and is also named as a party in these present proceedings. He did not attend the first court date directions hearing which occurred on 24 July 2014. However, Ms Huang, who attended today’s show cause hearing, confirmed that she had told her husband about orders that I made on the first court date. I am on that basis satisfied that the second applicant is aware of both the proceedings and today’s hearing.
The background facts relating to the visa application and the decision of the Tribunal on it are conveniently set out in the Minister’s outline of written submissions filed on 25 February 2015.
The applicants are wife and husband and are citizens of the People's Republic of China. Ms Huang first arrived in Australia on 21 November 2009 as the holder of a Student (Class TU) Subclass 572 visa, which ceased on 15 March 2012.
Ms Huang applied for a Student (Class TU) Subclass 572 visa on 9 March 2012.
On 15 March 2012, the Minister’s Department wrote to Ms Huang requesting further information including, among other things, evidence that she met the English language requirement. On 3 April 2012, Ms Huang provided to the Department a copy of a Certificate of Diploma of Hospitality (the certificate) from the Evolution Hospitality Institute, dated 17 February 2012.
On 5 April 2012, the Department wrote to Ms Huang inviting her comments or response to information obtained from investigations conducted on 4 and 5 April 2012 that the Evolution Hospitality Institute did not award Ms Huang a Diploma of Hospitality and, consequently, the certificate submitted to the Department was fraudulent. On 30 April 2012, Ms Huang responded to the Department's correspondence, attaching supporting documentation which included a letter and two statutory declarations made by Ms Huang.
Ms Huang confirmed that she obtained the certificate from her previous migration agent, Mr Jackie Chang, whom informed her that, to obtain the qualification, she only need to pay tuition fees and not attend classes. Ms Huang further stated that, although at the time she obtained the certificate she thought it was genuine, she now believed that the information obtained from the Department was correct and that Mr Chang had cheated her.
The application was refused by the Minister’s delegate on 28 May 2012 on the basis that Ms Huang did not meet PIC 4020 and, therefore, did not meet clause 572.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations).[1]
[1] Court Book (CB) 12-22.
Ms Huang applied to the Tribunal for review of the delegate's decision on 14 June 2012.[2]
[2] CB 1-11.
Ms Huang gave oral evidence before the Tribunal on 22 May 2014.[3] The Tribunal handed down its decision on 26 May 2014.[4]
[3] CB 116-118.
[4] CB 122-123.
The decision of the Tribunal
The issue before the Tribunal was whether Ms Huang met PIC 4020 and, if she did not, if the requirements of PIC 4020(1) and (2) should be waived.[5]
[5] See [4]-[5] at CB 127.
On the material and evidence before it, the Tribunal found that Ms Huang had given, or caused to be given to the Department a bogus document, pursuant to s.97 of the Migration Act 1958 (Cth) (Migration Act) in respect of the visa application under review.[6] Consequently, it found that Ms Huang did not meet PIC 4020(1).[7]
[6] See [12] a CB 130.
[7] See [13] at CB 130.
The Tribunal accepted that Ms Huang may bring value to the Australian education market and that both she and her husband had contributed to the Australian economy, however, it did not consider that these factors warranted waiving the requirements of PIC 4020(1).[8]
[8] See [17]-[19] at CB 131.
The present application
The applicants continue to rely on their original show cause application filed on 25 June in 2014.
The grounds in that application are:
1. The visa refusal is an unfair decision.
2. I should not be solely responsible for all consequences associated with providing bogus documents to the Department of Immigration.
3. The decision maker should consider all aspects of my case.
The applicants have not taken up the opportunity I afforded to them to amend their application or provide additional evidence. Ms Huang relies upon her affidavit filed with her application on 25 June 2014. I accepted [1] of that affidavit as evidence and [2] as a submission. In addition to the Tribunal decision, the affidavit annexes a statement by Ms Huang, which I also received as a submission.
I have before me as evidence the court book filed on 20 August 2014.
The court book is incomplete for the reasons explained in the affidavit of the Minister’s solicitor, Ms Carr, made on 14 August 2014. Regrettably, the Department’s file could not be located and the court book comprises documents obtained from the file of the Tribunal. The documents available in the court book are, in my opinion, sufficient to dispose of the application.
The application raises three assertions. The first is an allegation of unfairness. I invited Ms Huang in the course of oral submissions to identify what was unfair. She referred to what she regards as a lack of proper consideration by the Tribunal of the circumstances. It was apparent from her oral submissions that there is an overlap between Grounds 1 and 2.
Ms Huang believes that the presentation of a bogus document was the fault of her former migration agent. That may be so, but as I explained to Ms Huang, the agent was an agent engaged by her for the purposes of her visa application. While the agent may have committed fraud in the preparation or presentation of the bogus document, this is not a case where it could be asserted that the agent perpetrated a fraud against the Tribunal so as to disable its review function.
As has been made clear by the Full Federal Court in Trivedi v Minister for Immigration[9], while an element of fraud or deception is necessary in order to attract the operation of PIC 4020, it is not necessary in order to engage the operation of that criterion that the visa applicant was knowing or complicit in the deceptive character of the information furnished. That decision was recently affirmed by the Full Federal Court in Patel v Minister for Immigration[10].
[9] [2014] FCAFC 42
[10] [2015] FCAFC 22.
Ms Huang is thirdly concerned that the Tribunal did not consider all aspects of her case. I invited her in oral submissions to identify what was overlooked by the Tribunal. She referred to her and her husband’s contributions to Australian society. While those contributions might be acknowledged, they were considered by the Tribunal in relation to its discretion to waive the requirements of PIC 4020. I reject the contention that those contributions were overlooked by the Tribunal.
In other respects I agree with the Minister’s written submissions.
The Tribunal applied the correct law in assessing whether Ms Huang met PIC 4020.
The Tribunal was correct to set out at [4] and [7] of its decision record that PIC 4020(1) required that Ms Huang had not given, or caused to be given, a bogus document and that this requirement applied whether or not the document was provided knowingly or wittingly.[11] In this consideration, the Tribunal inquired whether the certificate had the necessary quality of purposeful falsity.[12]
[11] See Trivedi v Minister for Immigration (2014) 220 FCR 169 at [28], [36] and [50].
[12] See Kaur v Minister for Immigration [2014] FCA 1276.
At [8] of its decision record, the Tribunal noted that Ms Huang had written to the Department stating that she believed that the Department's information regarding the certificate was correct and that she had been provided false documents by her previous migration agent for the purpose of applying for the visa. At [9] the Tribunal noted that Ms Huang’s representatives confirmed that it was not in dispute that the certificate was a bogus document and at [10] the Tribunal recorded that Ms Huang confirmed this position at the hearing.
Consequently, the Tribunal did consider in its decision record whether anyone, which in this case was the applicant's previous migration agent, knew or had the intention to deceive the Department during the application process and, therefore, the certificate had the “necessary quality of purposeful falsity”.
The Tribunal correctly set out at [5] and [14] of its decision record that PIC 4020(1) can be waived if there are certain compelling or compassionate reasons to justify the grant of the visa.
As compelling and compassionate are not defined, it was within the Tribunal’s discretion to consider whether, from the material and evidence before it, there were circumstances which justified the grant of the visa.[13] Ultimately, it was open to the Tribunal to find on the material and evidence before it and for the reasons it gave, that there were not any compelling circumstances that affected the interests of Australia, or compassionate or compelling circumstances that affected the interests of an Australian citizen to waive the requirements of PIC 4020(1).
[13] Lakhani v Minister for Immigration & Anor [2013] FCCA 451 at [29].
I conclude that the applicants have failed to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
In consequence of the dismissal of the application, the Minister seeks an order for costs against both applicants. Ms Huang did not wish to be heard on costs. I have considered whether it is appropriate to make a costs order against the second applicant. In my opinion, it is, on the basis that he was aware of the application and the Court hearing today and could have participated if he had wished to.
I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 11 March 2015
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