Kang v MIAC

Case [2013] FCA 711

FEDERAL COURT OF AUSTRALIA

Kang v Minister for Immigration and Citizenship [2013] FCA 711

Citation: Kang v Minister for Immigration and Citizenship [2013] FCA 711
Appeal from: Minister for Immigration v Kang & Anor [2012] FMCA 732
Minister for Immigration v Kang & Anor (No. 2) [2012] FMCA 918
Parties: JAGMEET SINGH KANG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number: VID 851 of 2012
Judge: NORTH J
Date of judgment: 22 May 2013
Date of hearing: 22 May 2013
Place: Melbourne
Division: GENERAL DIVISION
Category: No Catchwords
Number of paragraphs: 34
Counsel for the Appellant: Mr J R Young
Solicitor for the Appellant: G & S Law Group
Counsel for the First Respondent: Mr C Horan
Solicitor for the First Respondent: Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 851 of 2012
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

JAGMEET SINGH KANG
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

NORTH J

DATE OF ORDER:

22 MAY 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        Subject to paragraph 2, the appeal is dismissed.

2.Paragraph 2 of the orders of the Federal Circuit Court (formerly the Federal Magistrates Court) dated 24 August 2012 be varied by deleting the words following "according to law".

3.        The appellant pay the first respondent's costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 851 of 2012
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

JAGMEET SINGH KANG
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

NORTH J

DATE:

22 MAY 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

  1. Before the Court is an appeal from orders made by the Federal Circuit Court, previously known as the Federal Magistrates Court, on 24 August 2012.  Those orders quashed a decision of the Migration Review Tribunal (the Tribunal) made on 24 November 2011.  The Tribunal set aside the decision of the delegate of the first respondent, the Minister for Immigration and Citizenship, (the Minister) to cancel the appellant's Subclass DD 880 Skilled - Independent Overseas Student visa. 

  2. That visa was granted to the appellant on 7 November 2007 based on his assessed skill as a pastry cook.  In support of the visa application the applicant provided a work reference from Bakers Hut Bread Supplies which certified that the applicant had:

    “undertaken unpaid work experience in our bakery from 11/04/06 till 20/01/07.  Over this period of time he contributed to our business with more than 900 Hours”. 

  3. The work reference was submitted to Trades Recognition Australia (TRA) which then assessed the appellant’s skill as sufficient to qualify for the visa.  The appellant submitted the TRA skills assessment in support of the visa application. 

  4. On 16 July 2010 the appellant was notified that the delegate of the…

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Kang v Minister for Immigration and Citizenship [2013] FCA 711
Case
[2013] FCA 711
Decision Date

CaseChat Overview and Summary

In the matter of Kang v MIAC, the Federal Circuit Court was asked to review a decision made by the Migration Review Tribunal (MRT) regarding the cancellation of a visa. The appellant, Kang, challenged the cancellation decision, asserting that the notice given to him was flawed as it inaccurately described the submission of a bogus document to an officer of the Department, when in fact it had been submitted online. The Federal Circuit Court had to determine whether the errors in the notice were significant enough to invalidate the cancellation decision.

The key legal issue was whether the inaccuracies in the notice concerning the submission of the bogus document could nullify the decision to cancel the visa. The appellant argued that the notice did not properly articulate the contravention, as it incorrectly stated that the bogus document was given to an officer. The Federal Circuit Court also had to consider whether the TRA skills assessment constituted a bogus document under the Migration Act.

The Federal Circuit Court, in its judgment, held that the errors in the notice did not invalidate the decision to cancel the visa. The Court reasoned that minor discrepancies in the notice did not deprive the decision-maker of jurisdiction, as long as the visa holder was sufficiently informed of the alleged non-compliance and had the opportunity to dispute it. The Court found that the appellant was not misled by the minor inaccuracies and that the substance of the allegations remained clear. The Court also accepted that the TRA skills assessment was a bogus document as it contained a false statement about the duration of work experience.

The appeal was dismissed with the condition that the order of the Federal Circuit Court be modified to remove certain words. The appellant was ordered to pay the costs of the appeal. This outcome ensured that the decision to cancel the visa could proceed, subject to the MRT making its findings according to law.

Orders

Orders of the court

1. Subject to paragraph 2, the appeal is dismissed.

2. Paragraph 2 of the orders of the Federal Circuit Court (formerly the Federal Magistrates Court) dated 24 August 2012 be varied by deleting the words following "according to law".

3. The appellant pay the first respondent's costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The notice stated that the TRA skills assessment had been given to an officer of the Department when in fact it had been lodged online. The Tribunal applied the judgment of the then Federal Magistrates Court in Brar v Minister for Immigration & Anor [2011] FMCA 435. The non compliance alleged was erroneous in that it stated that the bogus document was given to an officer when in fact it had not been given to an officer. Hence, the notice could not support the cancellation of the visa because the contravention had not been properly articulated. THE JUDGMENT OF THE FEDERAL CIRCUIT COURT The Minister applied to the Federal Circuit Court for a review of the Tribunal decision. By this time the Full Court of the Federal Court had reversed the judgment of the Federal Magistrates Courts in Brar. In accordance with the Full Court judgment Minister for Immigration and Citizenship v Brar [2012] FCAFC 30 (MIAC v Brar) the Federal Circuit Court upheld the Minister’s contention that the error in the notice of the description of the recipient of the visa application as “an officer” did not prevent the notice from supporting the allegation of contravention. The appellant however contended that there were other reasons why the cancellation decision should not stand. The principal allegation made in the notice of a contravention of s 103 was that the TRA skills assessment was a bogus document. The appellant, however, contended that the TRA skills assessment did not fall within the definition of a bogus document under s 97. The Federal Circuit Court dealt with this argument in a section entitled “The Applicant’s Submissions in Reply” as follows:79.Mr Horan [Counsel for the Minister] submits that the NOICC [notice] identified the bogus documents as “the reference from BHBS” [Bakers Hut Bread Supplies] within the definition in s.97(a) (CB p.39.3), and “the TRA skills assessment” within the definition in s.97(c) (CB p.39.5). The Court accepts that submission.80.Mr Horan refutes Mr Young’s [Counsel for the appellant] submission that, if the BHBS reference was not a “bogus document”, the TRA skills assessment could not be a bogus document. All that is required for the TRA skills assessment to be a bogus document under s.97(c) is that i[t] was obtained by a false or misleading statement, whether or not made knowingly. Mr Horan correctly identified that the false and misleading statement in the TRA skills assessment was that the applicant “has undertaken unpaid work experience in our bakery from 11/04/06 till 20/01/07. Over this period of time he contributed to our business with more than 900 Hours” (CB p.33.1). That statement was included in the work experience reference supplied by BHBS, which was supplied to the Department by TRA as part of its Record of Assessment (CB p.31.2). At CB p.37.8 the NOICC indicates that “Information received indicated that you may have never worked at Bakers Hut Bread Supplies as claimed”. Enquiries were made by the Melbourne Investigation Team with BHBS (the Court does not find the admissions by previous employees to be relevant here because of the Notation to the orders of FM Cameron [CB p.188.10]).81.Mr Horan complains that the Tribunal did not deal with the second alleged bogus document (being the TRA skills assessment). The Court accepts that submission (CB p.236.2).

Ratio Decidendi

Legal Principle Established

And then the notice also stated:In giving the TRA skills assessment, which is a bogus document to an officer of the department, you have failed to comply with s 103.CONSIDERATION The approach to the construction of such a notice was explained in MIAC v Brar at [61], as follows.In our opinion, it was not Parliament’s intention that all departures from the statements made in a notice under s 107 deprive the decision-maker of jurisdiction under ss 108 and 109 to making findings of non-compliance by the visa holder in the way described in the notice. The phrase “in the way described in the notice” must be read in light of the purpose of the statutory scheme which is to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and to respond to them. A departure which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegations of non-compliance does not deprive the decision-maker of jurisdiction under ss 108 and 109. (Emphasis added.) The sentence in the notice relied upon by the Minister has two aspects. One concerns the admission about the provision of the work reference. The other concerns the substance of the reference, namely, the false claim that the person had completed 900 hours of work experience. The Minister submitted that, to the extent that the allegation of noncompliance is unclear, the fault is minor. This argument should be accepted. The notice could have set out the allegation of contravention constituted by the provision of the TRA skills assessment a little more clearly by shifting the description of the false or misleading statement relied upon to a position in the notice nearer to the allegation of contravention by provision of the TRA skills assessment. However, the appellant would have been under no misapprehension that the false or misleading statement alleged was that he had worked for 900 hours for the referee. The appellant would not have apprehended that the false or misleading statement alleged was only that he had provided a work reference which purported to be issued in relation to the appellant but was not. This is an artificial reading of the noticeTHE FORM OF THE ORDERS In the end there was common ground, that [2] of the order of the Federal Circuit Court should be varied. That paragraph provided:A writ of mandamus issue requiring the Migration Review Tribunal to determine the matter according to law, including making findings on the matters in the Notice of Intention to Consider Cancellation; in particular:a.That the visa holder did not comply with ss.101(b) and 103 of the MigrationAct 1958 because, in support of his application and in order to satisfy legislative requirements for the grant of a visa, the visa holder made incorrect statements, provided incorrect information, and caused a bogus document to be given to the Department; and b.Including considering whether or not to exercise the discretion to cancel the visa.