Kaur v MIBP
[2014] FCCA 1264
•18 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1264 |
| Catchwords: MIGRATION – Review of Migration Tribunal decision – refusal of a Skilled (Provisional) (Class VC) visa – Skilled Graduate (485) – Applicant found to have furnished a work reference to Trades Recognition Australia that contained false or misleading information – No sustainable grounds in application – Application dismissed. |
| Legislation: Legislative Instruments Act 2003 (Cth), s.12 Migration Act 1958 (Cth), s.97 Migration Amendment Regulations 2011 (No.1) (Cth), regs.3, 5(2) |
| Batra v Minister for Immigration and Citizenship (2013) 212 FCR 84 Toowoomba Foundry Pty Ltd v Commonwealth (1945) 71 CLR 545 |
| Applicant: | SATVIR KAUR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2959 of 2012 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 30 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 18 June 2014 |
REPRESENTATION
| Solicitor for the Applicant: | Mr N. Dobbie of Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the Respondents: | Mr J. D. Smith |
| Solicitor for the Respondents: | Ms A. Lal of Sparke Helmore |
ORDERS
The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application filed on 13 December 2012, and amended on 26 March and 8 April 2013, be dismissed.
The applicant pay the first respondent’s costs of and incidental to the application as agreed or assessed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2959 of 2012
| SATVIR KAUR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) for judicial review of a decision of the second respondent, the Migration Review Tribunal (the “Tribunal”) dated 19 November 2012, being MRT Case Number 1110483, a decision of Tribunal Member K. Raif. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Border Protections (at the time of the decision the Minister for Immigration and Citizenship) (the “Minister”) to refuse to grant the applicant a Skilled (Provisional) Class VC visa.
The solicitors for the first respondent were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided has been identified as the Court Book (“CB”) and marked Exhibit “A”.
The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review upon, together with any supporting affidavit material, on or before 26 March 2013. The applicant elected to file an amended application on 28 March 2013, then a further amended application on 8 April 2013 (the “Application”) which is the form of application relied upon at the hearing.
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the legal representatives of the parties. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material. I have not made further attribution as this would make the summary unwieldy.
The applicant is a citizen of India who arrived in Australia on a Student visa in May 2008. She completed a Certificate III in Hairdressing at TAFE NSW between July 2008 and June 2009 and a Diploma in Hairdressing Salon Management at TAFE NSW between February 2010 and June 2010. On 29 June 2010 the applicant applied for a Class VC visa with a nominated occupation of hairdresser, on the basis of her academic qualification and a skills assessment dated 2 December 2009 from Trades Recognition Australia (“TRA”) (CB 42).
On 19 September 2011 a delegate of the Minister made a decision to refuse to grant the applicant a visa (CB 85). The delegate found that the applicant did not satisfy cl.485.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (the “Migration Regulations”) because she did not satisfy public interest criterion 4020 (“PIC 4020”) of Schedule 4 of the Migration Regulations. Clause 485.224 relevantly provides:
The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; and
(b) if the applicant had turned 18 at the time of application — satisfies public interest criterion 4019.
PIC 4020 relevantly provides:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse the application;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular"means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.
On 5 October 2011 the applicant applied to the Tribunal for review of that decision. The Tribunal affirmed the delegate’s decision to refuse the grant of the visa to the applicant on 19 November 2012 (CB 190).
The Tribunal’s Decision
The issue for the Tribunal was whether the applicant met PIC 4020. The first paragraph of that criterion provided:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
The Tribunal found that TRA was a relevant assessing authority for the purposes of this criterion and that the applicant had, in relation to her application for a visa, given TRA information concerning her employment as a hairdresser at the Highlights Hair and Makeup Salon (“Highlights”) (CB 200 at [50]). The critical question, then, was whether that information was false or misleading in a material particular.
In this respect, the Tribunal considered, but rejected as inadequate, a report from officers of the Department of Immigration arising from investigations of Highlights (CB 200 at [54]). However, it found that the information was false or misleading because, read as a whole, it gave the impression that the applicant worked independently as a hairdresser and performed the full range of duties throughout the period of her employment and, to that extent, was inconsistent with the applicant’s evidence before the Tribunal (CB 201 at [56]-[58]).
Application before the Federal Circuit Court
The applicant filed an application in this Court seeking judicial review of the Tribunal’s decision on 13 December 2012. Consent orders were made allowing the applicant to file a Further Amended Application on 8 April 2013.
The final orders sought in the Application were:
1. An Order that the decision of the Second Respondent be quashed.
2. A WRIT OF MANDAMUS directed to the Second Respondent to determine the Applicant’s application for review according to law.
3. Such other relief as the Court considers appropriate.
4. An Order that the Respondents pay the Applicant’s costs of this application.
The Application pleads four grounds which state:
1. The Second Respondent misinterpreted and or misspelled the law to the facts
Particulars:
…
(ii) The Tribunal misinterpreted the applicable law or misapplied the law to the facts by finding that item 4020 applied to the Applicant:
(a) Item 4020 was introduced and took effect on 2 April 2011 by virtue of r5 of the Migration Amendment Regulations 2011 (No.1) and items [3] and [4] of Schedule 3 of those amending regulations.
(b) Subregulation 5(2)(a) and item 4020 of the amending regulations is invalid in so far as it purports to apply to an application already lodged before the item was introduced, because it is manifestly unjust and or oppressive and or is contrary to the intention of Parliament in relation to the use of the regulation making power it authorized for use by the First Respondent.
(c) The Tribunal therefore misinterpreted the applicable law or misapplied the law by finding that the First Applicant has to satisfy item 4020.
(iii) The Tribunal misinterpreted the applicable law or misapplied the law to the facts by finding that the employment reference letter given to it by the Applicant was ‘false or misleading in a material particular’ for the purposes of item 4020.
Particulars
(a) The employment reference letter related to a minimum of 900 hours of work experience, purportedly required by TRA as a standard precondition for a skills assessment. Because TRA was not empowered to set 900 hours of work experience as a standard precondition for a skills assessment at the time the assessment application was lodged, and even at the time it was granted, the employment reference letter could not have been false or misleading in a material particular.
2. The Second Respondent failed to take into account a relevant consideration
Particulars:
(i) The Tribunal failed to take the employment reference letter into account.
(a) The Tribunal erroneously found that the employment reference letter ‘did not correctly reflect the nature of the applicant’s employment because the applicant sis not work as a hairdresser, independently and performing the full range of hairdressing services, for the period claimed.’ The Tribunal subsequently found that the employment reference letter was objectively false or misleading in relation to the Applicant’s claimed work experience at Highlights Hair and Makeup Salon; and or
(b) As a result of the way it failed to understand the employment reference letter, it did not have proper regard to it and therefore failed to take it into account before finding that the Applicant did not satisfy subitem 4020(1)
3. The decision of the Second Respondent is arbitrary
Particulars:
(i) The decision of the Tribunal is arbitrary because it did not have any reasonable basis on which to determine whether the employment reference letter was false or misleading in a material particular for the purposes of the Applicant’s TRA skills assessment.
4. The Second Respondent failed to make a relevant enquiry
Particulars:
(i) The Tribunal failed to make a relevant enquiry.
(a) The Tribunal was required to make an enquiry if TRA whether the reference letter given to it by the Applicant, if read down as not reflecting 900 hours of work experience as a fully qualified hairdresser (which was the Tribunal’s approach), would have made a material difference in relation to whether it would have issued a positive skills assessment to the Applicant. Only then could the Tribunal determine whether the employment reference letter was ‘false or misleading in a material particular’ for the purposes of item 4020.
Applicant’s Submissions
Mr Dobbie, appearing for the applicant, chose to not press Ground 1(i). Accordingly, this ground cannot be sustained
Ground 1(iii)
Mr Dobbie argues it is appropriate to address Ground 1(iii) first. In his Honour Murphy J’s decision Batra v Minister for Immigration and Citizenship (2013) 212 FCR 84, the appellant had applied for a Subclass 885 visa. He was required to obtain a skills assessment from TRA. The skills assessment was confirmed as successful on 20 November 2007: Batra (supra) per Murphy J at [10].
In Batra (supra) the appellant, in support of his TRA application, provided a reference from “O’heas Bakery and Deli”, attesting to 900 hours of unpaid work as a pastry cook. That reference was found to be false: Batra (supra) at [3]-[4] and [9].
At [72], Murphy J stated that:
…[T]he tribunal was wrong in finding at [30] that 900 hours of work experience was a standard precondition for accreditation. This standard appears to have been set by TRA, which was not empowered to do so. …
Mr Dobbie submits that by applying Murphy J’s reasoning, Ms Kaur’s work reference also related to a minimum of 900 hours of work experience, purportedly required by TRA as a standard precondition for a skills assessment. Because TRA was not empowered to set 900 hours of work experience as a standard precondition for a skills assessment at the time the assessment application was lodged, and even at the time it was granted, the work reference could not have been false or misleading in a material particular. The Tribunal therefore committed jurisdictional error by finding that Ms Kaur had provided a work reference to TRA that was false or misleading in a material particular for the purposes of PIC 4020(1) and (5), and for the purposes of cl. 485.224: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, per McHugh, Gummow and Hayne JJ at 351-352, [82]-[84].
Ground 1(ii)
Mr Dobbie submits that Ground 1(ii) of the Application pleads that the Tribunal committed jurisdictional error by finding that PIC 4020 applied to Ms Kaur, insofar as it sought to apply to Ms Kaur for acts done by Ms Kaur before the introduction of PIC 4020 and its incorporation into cl.485.224.
Mr Dobbie argues that item 4020 was introduced and took effect on 2 April 2011 by virtue of reg.3 of the Migration Amendment Regulations 2011 (No.1) (Cth) (the “Amending Regulations”) and purports to apply to Ms Kaur’s subclass 485 visa applications by virtue of reg.5, which provides:
5 Amendment ofMigration Regulations 1994 — Schedule 3
(1) Schedule 3 amends the Migration Regulations 1994.
(2) The amendments made by Schedule 3 apply in relation to an application for a visa:
(a) made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 2 April 2011; or
(b) made on or after 2 April 2011.
Mr Dobbie submits that it appears the PIC 4020 was not incorporated into cl. 485.224 by the Amending Regulations, such that it does not apply, in any event, to Mr Kaur’s visa application.
It is submitted that sub-regulation 5(2)(a) and PIC 4020 of the Amending Regulations is invalid insofar as it purports to apply to an application already lodged before the item was introduced, because it is manifestly unjust and/or oppressive and or is contrary to the intention of Parliament in relation to the use of the regulation making power it authorised for use by the Minister.
The reason it is manifestly unjust and or oppressive and/or is contrary to the intention of Parliament is because it places upon a person who is caught by PIC 4020(1) a prima facie three year prohibition on the grant of a visa of any class of which PIC 4020 is a criterion to be satisfied (for example, for a subclass 186 visa, see cl. 186.213(1)) for an act done before PIC 4020 came in effect. A liability is imposed on Ms Kaur in respect of an act she has been found to have committed before PIC 4020 came into force. That liability is contained in PIC 4020(2), which provides:
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse the application;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
Section 12 of the Legislative Instruments Act 2003 (Cth) provides:
When do provisions of legislative instruments take effect?
(1) Subject to subsection (2), a legislative instrument that is made on or after the commencing day, or a particular provision of such an instrument, takes effect from:
(a) the day specified in the instrument for the purposes of the commencement of the instrument or provision; or
(b) the day and time specified in the instrument for the purposes of the commencement of the instrument or provision; or
(c) the day, or day and time, of the commencement of an Act, or of a provision of an Act, or of the occurrence of an event, that is specified in the instrument for the purposes of the commencement of the instrument or provision; or
(d) in any other case—the first moment of the day next following the day when it is registered.
Note: There are certain instruments that, by virtue of subsection 55(2), are made before, but treated as having been made on, the commencing day.
(2) A legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered and as a result:
(a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration would be affected so as to disadvantage that person; or
(b) liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration.
(3) The effect of subsections (1) and (2) on a legislative instrument is subject to any contrary provision for commencement of the instrument in the enabling legislation for the instrument if the enabling legislation is an Act or a provision of an Act.
Mr Dobbie submits that it would be inconsistent with common law notions against laws that are retroactive in substance, and inconsistent with s.12(2) of the Legislative Instruments Act 2003 (Cth) for PIC 4020 to operate in relation to acts done before PIC 4020 came into force. It is submitted that merely because PIC 4020 has been incorporated into a time of decision criterion (here, cl.485.224), that does not mean that its application is not retroactive. It is submitted that reg.5(2)(a) of the Amending Regulations is therefore invalid, insofar as it purports to make PIC 4020 applicable to acts done by Ms Kaur in relation to her subclass 485 visa application before 2 April 2011. The Tribunal therefore committed jurisdictional error by finding that PIC 4020 applied in relation to the work reference given to TRA in 2009.
Grounds 2 and 3
Mr Dobbie submits that Grounds 2 and 3 of the Application plead that the Tribunal, in effect, did not give proper regard to the work reference, or that its consideration of it was arbitrary. The Tribunal found that the work reference:
…did not correctly reflect the nature of the applicant’s employment because the applicant did not work as a hairdresser, independently and performing the full range of hairdressing services, for the period claimed.
(CB 201 at [58])
Mr Dobbie submits that that is not what the Highlights Reference Letter (the “Reference Letter”) said. The Reference Letter does not state that Ms Kaur worked for the entire 900 hours as a hairdresser, independently and performing the full range of hairdressing services. It is a Reference Letter written in the present tense. By virtue of the way in which the Tribunal misread the work reference, it did not have proper regard to it. It therefore failed to take into account a relevant consideration, and therefore committed jurisdictional error.
Minister’s Submissions
Ground 1(iii)
The Minister submits that this ground rests on the assertion that the TRA had no power to set a standard of 900 hours’ work experience for the purposes of a skills assessment. The only basis given for that assertion is a reference to an obiter statement by Murphy J in Batra (supra). In that case, the TRA was not a “relevant assessing authority”, whereas here is was. That distinction means the statement relied on by Ms Kaur does not apply to the facts of this case and the ground should be rejected.
The Minister submits that PIC 4020 refers to information that is given to a number of different bodies including a “relevant assessing authority”. Such an authority is a person or body that is specified under reg.2.26B: see reg.1.03. Regulation 2.26B provides:
Relevant assessing authorities
(1) Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:
(a) a skilled occupation; and
(b) one or more countries;
for the purposes of an application for a skills assessment made by a resident of one of those countries.
(1A) The Minister must not make an instrument under subregulation (1) unless the person or body has been approved in writing as the relevant assessing authority for the occupation by:
(a) the Education Minister; or
(b) the Employment Minister.
(2) The standards against which the skills of a person are assessed by a relevant assessing authority for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation.
(3) A relevant assessing authority may set different standards for assessing a skilled occupation for different visa classes or subclasses.
In Batra it was common ground that at the time of the Tribunal’s decision on 3 March 2011 the TRA had not been properly specified as an assessing authority pursuant to reg.2.26B(1A): Batra at [12]. Murphy J noted at [24] that a “relevant assessing authority” is a body or person that is given power under the Migration Act to set the occupational skills standard required, and to assess the skills of a visa applicant against the relevant standard. However, there was no dispute in that case that, because the TRA was not properly specified as an assessing authority, it had not properly set a skills standard and there was no standard against which the applicant there could be assessed: Batra at [25].
In that context, the statement by Murphy J at [72] does not mean that TRA never has any power to set a standard for a skills assessment, whether that standard is described as a precondition or otherwise. Rather, his Honour’s comments are limited to circumstances where TRA was not properly specified under the Migration Regulations.
In these proceedings the Tribunal found that the relevant assessing authority was TRA in light of legislative INNI12/068. That instrument took effect on 12 June 2012 and so post-dated the relevant time in Batra. Ms Kaur has not taken issue with the Tribunal’s finding in this respect and has adduced no evidence to suggest that the Tribunal was wrong. For that reason, the decision in Batra is distinguishable from this case and his Honour’s comments at [72] are not applicable. To the contrary, his Honour’s statement at [24] is applicable and is directly inconsistent with Ms Kaur’s argument.
Ground 1(ii)
The Minister submits that Ms Kaur makes two points in this ground: the first, is that PIC 4020 was not incorporated into cl. 485.224 by the Amending Regulation; the second is that subregulation 5(2)(a) of the Amending Regulation and PIC 4020 are invalid insofar as they purport to apply to an application already lodged before the item was introduced.
The basis for the first of these points is not explained in Ms Kaur’s submissions. Regulation 5(1) of the Amending Regulation provides that Schedule 3 amends the Migration Regulations. Item 4 of Schedule 3 to the Amending Regulation sets out a table which shows in the left column the relevant provision and in the second and third columns the changes to be made to those provisions. Clause 485.224(a) is set out in the first column. In the next two columns are, first that “4005 and 4010” is to be omitted and, next, that “4005, 4010 and 4020” is to be inserted. On any view, that means that 4020 was inserted by operation of item 4 of Schedule 3 of the Amending Regulation.
If that were not abundantly clear on the face of the Amending Regulation, any ambiguity might be clarified by reference to extrinsic material. The explanatory memorandum issued by the Minister in connection with the Amending Regulation explained that item 4 gave effect to PIC 4020 and enabled the Minister to assess visa applicants against the criteria contained within the new clause 4020. It also went on to explain the reason for the omission of certain clauses in Schedule 2 by reason of the next item in the Amending Regulation:
The existing provisions provide grounds for refusal of a visa application in circumstances where a primary visa applicant has provided false and misleading information to satisfy the requirements listed in the provision.
This amendment ensures that a primary visa applicant is not required to satisfy a separate visa criterion in addition to the new clause 4020, which seeks to prevent the same mischief as the clause 4020. Each of the amendments is consequential to the amendments which are proposed by item [4]…
Prior to the amendments wrought by the Amending Regulation, an applicant for a subclass 485 visa had to satisfy cl. 485.223 which related to false or misleading information. The purpose of that omission, as set out in the explanatory memorandum, was to ensure that an applicant did not have to satisfy both that clause and PIC 4020. If, as the applicant asserts, PIC 4020 was not inserted by item [4], the omission of cl. 485.223 would have served no purpose. Any ambiguity in item [4] should be resolved in a way that fulfils, rather than counteracts, the purpose of item [5]. For that reason, item [4] should be construed to insert PIC 4020 into cl. 485.244(a).
The second claim in this ground is that subregulation 5(2)(a) of the Amending Regulation and PIC 4020 are invalid. There appear to be two bases for this assertion: first, because they are manifestly unjust or oppressive; and secondly, because they are applicable to acts done by the applicant before the provisions came into effect. Neither basis is sustainable.
The first basis operates on the premise that PIC 4020 imposes a liability on an applicant for something done before that provision came into force and that this imposes a prima facie prohibition on the grant of any class of visa. Contrary to this assertion, there is no liability imposed at all: the Minister is simply required to determine, at some time after the provisions came into force, whether or not a particular criterion has been met. In any event, Ms Kaur’s argument has a more serious flaw. It relies on the operation of PIC 4020(2) as imposing a retroactive three year banning period. However, that cannot be correct. The operative facts in PIC 4020(2) are that:
a)The applicant and each member of a family unit has not been refused a visa; and
b)Where the reason for the refusal was of a failure to satisfy the criteria in subclause (1).
Logically, the Minister submits, the second of these cannot have occurred before PIC 4020(1) came into operation: no visa is validly refused because of a failure to satisfy a condition that does not yet exist. The provision does not relate to people who “would have been refused a visa” for failure to satisfy the criteria. Thus, the injustice complained of simply does not arise.
The second basis for this ground should also be rejected. First, the amending regulation (and so too PIC 4020) is expressly stated to take effect only in respect of future matters, that is, decisions made on or after 2 April 2011, reg. 5(2) (the Amending Regulation was registered on 1 March 2011). For that reason there is simply no room for the operation of s.12(2) to apply, merely to show that the instrument will adversely affect the continuance or future enjoyment of a person’s rights: Hu v Minister for Immigration & Anor (2007) 214 FLR 296 at [19].
The critical words in s.12(2) are “it would take effect before the date it is registered”. Those words are considered by Weinberg J in Ignatious v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 254 in the context of a time of decision criterion that had been changed. In rejecting the applicant’s argument that the change was invalid, his Honour relied on the following statement by Latham CJ in Toowoomba Foundry Pty Ltd v Commonwealth (1945) 71 CLR 545 at 568:
…a law may be said to take effect from a past date if the operation of the law is such as to destroy as at a past date rights which then existed or to impose as at a past date liabilities which did not then exist...
The same reasoning applies here. The Amending Regulation only operate in relation to future decisions on visas which had not been granted and without making any alteration to the past legal position of any visa applicant: Hu at 300 [24].
Finally, given the express intention that the amendments were to take effect in the future, there is no room for operation of any common law presumption against retroactive operation.
Grounds 2 and 3
The Minister submits that Ms Kaur argues that the Tribunal was wrong to find that the Reference Letter (CB 68) was false or misleading in that it did not correctly reflect the nature of Ms Kaur’s employment because she did not work as a hairdresser, independently or performing the full range of hairdressing services for the period claimed. The applicant argues that, because the Reference Letter was written in the present tense, it cannot be taken to have being referring to the entire period of her employment.
Read as a whole, the Reference Letter supports the Tribunal’s view. The first paragraph states: “Satvir has been working as a hairdresser…” and “To date Satvir has completed more than 950 hours of work experience”: CB 68 (emphasis added). The next paragraph is in the present tense (“works”); however, that paragraph follows from the previous paragraph and may be taken to be an explanation of what was said in that paragraph. Thus, although some of the Reference Letter is written in the present tense and may be entirely accurate when read in isolation, the context changes the effect of those parts. For that reason, it was open to the Tribunal to reach its finding of fact.
In light of that, these grounds to no more than an attack on the merit and do not identify any jurisdictional error: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [23]-[40].
Consideration
This application centres on the application and interpretation of public interest criteria in PIC 4020 and turns on the interpretation of a reference prepared by an employer and provided by the applicant to TRA to prepare a skills assessment for a skilled migration application.
Ground 1 (i)
At the hearing Mr Dobbie, representing Ms Kaur, submitted that he would not press Ground 1(i) of the Application. Mr Dobbie indicated to the Court that he accepted Mr Smith’s submission in relation to the precedent in contained in the authority of Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348. Further, Mr Dobbie indicated that although he had stated in his written outline of submissions that he may seek to file a second further amended application, however, on review he accepted the submissions on behalf of the Minister that the regulation was properly inserted.
Ground 1(ii)
In Mr Dobbie’s written submissions, it is indicated that Ground 1(ii) alleges the Tribunal committed jurisdictional error by finding that PIC 4020 applied to the applicant, insofar as it sought to apply to the applicant for acts done by the applicant before the introduction of PIC 4020 and its incorporation into cl.485.224. Mr Dobbie then proceeds to set out a detailed review of the legislative process concerning the introduction of the regulatory regime (see [20]-[26] above). I believe the content of those submissions are correct, are not in dispute between the parties and need no further consideration.
Ground 1(ii) focuses on PIC 4020, insofar as it purports to operate for any application in the system at the time it came into effect on 2 April 2011. The argument is that it is manifestly unjust that PIC 4020 be read to apply to any application in the system before PIC 4020 came into effect. The Court was referred to the recent High Court decision in Minister for Immigration and Citizenship v Li & Anor (2013) 297 ALR 225 per Hayne, Kiefel and Bell JJ at [70] where their Honours stated:
The test proposed by Lord Russell of Killowen CJ in Kruse v Johnson, a case which is cited chiefly in relation to the unreasonableness of the exercise of delegated law-making power, may avoid some of the circularity identified in the Wednesbury formulation. Lord Russell considered that unreasonableness was found where delegated laws were:
“partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; [or] if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men".
(footnotes omitted)
By way of clarification, Mr Dobbie indicated that it is not his submission that it is the role of the Court to determine whether a more favourable regulation could have been drafted. If it is good law, but is tough in its application, then it applies equally to everyone as it is the intention of the legislation. Mr Dobbie confirmed that he was not indicating that it was the role of the Court to interfere with that exercise of power, rather, the issue was whether the regulation is manifestly unjust. In Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 per Lockhart J. His Honour stated at 381-382:
Subordinate legislative bodies can make laws which parliament has expressly empowered them to make. I respectfully agree with Diplock LJ in Mixnam's Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214 at 237-8 that:
“The various special grounds upon which subordinate legislation has sometimes been said to be void — for example, because it is unreasonable; because it is uncertain; because it is repugnant to the general law or to some other statute — can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute. Thus, the kind of unreasonableness which invalidates a by-law is not the antonym of `reasonableness’ in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: `Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires’;…
Mr Dobbie argues that insofar as the regulation seeks to operate to applications made before 2 April 2011 because it imposes ultimately a criterion which results in a visa refusal. It is acknowledged that the Minister can, at the time of the decision, have regard to different criteria than those at the time the visa application was made, based on this principle. However, those authorities do not say that the Minister can put in criteria which have the effect of then imposing a three year ban on a person put by this gazetting of a new regulation.
Mr Dobbie acknowledged that the Minister can have criteria at the time of the decision and that criteria can be changed, but it is another thing to say that a regulation that imposes a three year prohibition for an act done previously when there was no prohibition for such an act at the time of application. PIC 4020 operates in that, if an applicant is refused a visa in the past, a new visa application cannot be made for a period of three years. Consequently, this has the effect of not only the refusal of the visa application, but prohibition for three years from a further visa application.
Mr Dobbie’s argument is that the Tribunal found the applicant was a credible witness, but that the Reference Letter was false and misleading as to material particulars with the consequence being that the applicant now has a three year prohibition on applying for other visas, such as an employer nomination visa, for example. That does not speak to the past because it speaks to the act in the past which resulted in the refusal under PIC 4020(1) which brings into play PIC 4020(2) prohibition.
In respect of the invitation to consider a hypothetical opinion on the outcome of the event if there is some application made by this applicant within the next three years the PIC 4020(2) may have an impact because the applicant will have been refused a visa for failing to satisfy criterion 4020(1). This is beyond the scope or authority of jurisdictional review and needs no further comment.
The second issue is concerned as to when the ban on applying for visas introduced by PIC 4020(2) applies from. In Mr Dobbie’s submission PIC 4020(2) applies to the applicant at the time that she applied for her visa, rather than when the Tribunal made its decision. The former approach is that PIC 4020(2) works upon the premise that there has been a breach in the past, but logically that cannot occur before PIC 4020(1) came into effect on 2 April 2011. So, at the time of the commencement of PIC 4020 in various parts of Schedule 2 of the Migration Regulations PIC 4020(2) had no impact. As PIC 4020 is a time of the decision criterion, it only applied after 2 April 2011 and does not affect or impact on any right or obligation that existed at that time.
Mr Smith prepared detailed written submissions, reproduced above at [35]-[45] above and refers the Court to the decision in Hu v Minister for Immigration (supra). In that decision his Honour Smith FM was considering an overseas student onshore residence visa, which had a qualification assessable to satisfy a skilled occupation list which was required to be gained in a registered course. A regulation criterion was introduced after the applicant had completed studies in a non-registered course and applied for the visa. The amendment was intended to apply to pending applications and it was found that the amendment was not rendered effective by Legislative Instruments Act 2003 (Cth). The “time of decision” criterion in that matter was contained in Item 880.230 of Schedule 2 of the Migration Regulations. Smith FM stated at in Hu [12]-[19]:
12. Section 5(9) of the Migration Act 1958 (Cth) provides that “An application under this Act is finally determined” when either a decision that has been made in respect of the application is no longer subject to any form of review, or the period for an application for review has elapsed without an application being made.
13. In my opinion, it is clear that this transitional provision reveals an express intention that the change to the ‘time-of-decision’ criterion in 880.230 was intended to apply to all future decision making by the Minister or his delegate, when they addressed any undecided visa application for a subclass 880 visa. It also showed an intent that it should be applied by the Tribunal, when addressing an application for review in relation to such a visa application. The contrary was not submitted on behalf of the applicants in this case.
14. Given the absence of any ambiguity in the transitional provision of the amending regulation, the present case does not give rise to consideration of the principles of statutory construction, which presume against interference with accrued rights. No argument was presented to me which invoked the application of s 8 of the Acts Interpretation Act 1901 (Cth), as applied to regulations by s 13 of the Legislative Instruments Act 2003 (Cth), or of the equivalent common law principles of construction, in relation to the present legislative amendment.
15. The argument, which is relied upon by the present applicants, is that the Legislative Instruments Act 2003 (Cth) in s 12(2) prevents this intent being given effect by decision makers, notwithstanding the expressed intention of the amending regulation to apply the changed criteria to outstanding visa and review applications.
16. It was strongly urged upon the Court that the application of the amended criterion in the present situation gave rise to a significant degree of hardship and unfairness to a student such as Mr Hu, who had studied in Australia in courses with the expectation of qualifying for permanent residence under a subclass 880 visa, and had undertaken that study and applied for a visa at a time when it was not a condition of the visa that all his qualifications were obtained in registered courses.
17. The degree of this hardship, and the strength of any public policy considerations justifying its infliction, are not matters for the Court to determine. Nor can the Court give a remedy to the applicants, if the intent of the amending regulation is clear, and if it is clear that s 12(2) of the Legislative Instruments Act has no application. Unfortunately, I have decided that both of these questions must be decided against the applicants.
18. As I have explained above, there is no ambiguity in the transitional provision which accompanied the amendment, allowing application of principles presuming against interference with accrued rights or expectations.
19. Turning to the language of s 12(2), it is clear that it raises two elements which must be satisfied before an instrument has no legal effect. One of them is that at the date of registration of the instrument there be in existence “rights of a person” which “would be affected so as to disadvantage that person” in terms of s 12(2)(a), or that the instrument would impose liabilities in respect of something done or omitted before that date in terms of s 12(2)(b). However, even if one of these situations can be found, there is also an added element found in the opening words of the s 12(2): "if, apart from this section, it would take effect before the date it is registered". In my opinion, it is clear from these words that it is not sufficient, for s 12(2) to apply, merely to show that the instrument will adversely affect the continuance or future enjoyment of a person's rights.
In Kaur & Anor v Minister for Immigration & Anor [2013] FCCA 2209, her Honour Judge Barnes was considering the decision of the Tribunal, which had found that the applicant did not satisfy PIC 4020, and whether the Tribunal had misapprehended and misapplied the relevant law or failed to take into account relevant considerations. The decision of the Tribunal was summarised at [8] and [12] where her Honour stated:
8. The Tribunal considered the Applicant’s submission that cl.487.223 did not apply to her because at the time of her visa application TRA was not properly specified. The Tribunal referred to Zhang v Minister for Immigration and Citizenship and Another (2012) 271 FLR 65; [2012] FMCA 1011 in which this Court held that the relevant date for determining whether a provision concerning skills assessment by a relevant assessing authority was applicable to an applicant was the time of the Tribunal decision, not the time of the visa application. On that basis the Tribunal found the Applicant was required to meet cl.487.223. It also found that TRA was validly approved and specified as the relevant assessing authority prior to the commencement of IMMI 12/068 on 1 July 2012, that IMMI 12/068 did not purport to take effect before the date it was registered, but that it was relevant and applicable at the time of decision.
…
12. The Tribunal addressed the Applicant’s contention that PIC 4020 did not apply to her as it was introduced after the date of her visa application and that it would be manifestly unjust or oppressive to impose such a requirement on her. The Tribunal did not agree. It referred to the fact that the delegate had refused the application on the basis that the Applicant did not satisfy former cl.487.227 of Schedule 2 to the Regulations (the time of decision criterion then in force) which required that there be no evidence that information given or used to meet visa application requirements or to obtain a skills assessment was false or misleading in a material particular). It acknowledged that this criterion was repealed on 2 April 2011 (by the Amending Regulations) and that new PIC 4020 had been inserted in the relevant criteria current at the time of decision. It found that the Amending Regulations specified that these amendments applied to applications made but not finally determined before 2 April 2011 and applications made on or after that date. The Tribunal was of the view that it was not unjust or oppressive to test whether the Applicant met PIC 4020 at the time of decision, as required by the law.
Her Honour then stated at [71] of Kaur (supra):
71. Hence the new time of decision criteria in relation to Subclasses 485 and 487 which applied PIC 4020 were applicable to the Applicant’s application at the time of the Tribunal decision. The Tribunal was bound to apply the Amending Regulations because the Applicant’s visa application had not been “finally determined” at the date of commencement of the Amending Regulations. The fact that it did so was not a misconstruction or misapplication of the relevant law. The Tribunal was not obliged to apply the criteria for the visa as they stood at the time of the visa application, the delegate’s decision, the application to the Tribunal or the first Tribunal decision (insofar as various earlier dates were referred to in the Applicant’s submissions). By analogy with the remarks of Smith FM in Hu at [27], the Applicant had no more than a right to compel the Tribunal to make a decision on whether it was satisfied as to the prescribed criteria which were relevantly in place at the time of the decision. Clause 487.228 (which required the applicant to satisfy PIC 4020) was such a criterion, as was cl.485.224.
Ground 1(iii)
Mr Dobbie then addressed Ground 1(iii) where he claims that the interpretation of the Reference Letter which is headed “Highlights hair and makeup by Ching Mercado” provided by the applicant to TRA and which led TRA at a time when it was not lawfully authorised or specified to provide a skills assessment for a skilled migration application. The TRA ultimately issued a skills assessment which the applicant used to apply for a Skilled (Provisional) Class VC visa.
The delegate of the Minister refused the application on the basis that the Reference Letter given to TRA was false or misleading. The Tribunal had regard to the Reference Letter and found that it was false or misleading in relation to the applicant’s claimed work experience as a hairdresser. Although the Tribunal found that Ms Kaur was a credible witness, it found that the Reference Letter itself was false or misleading in relation to her work experience, for the purposes of the TRA assessment that was made, the TRA would have considered that to have been somehow relevant. The question is whether or not in a material particular for a body that was not authorised, at the time, to set the standards for skill assessment.
Mr Dobbie informed the Court that the relevant documents for the purpose of this application that he relied upon are located at CB 42-45 which sets out the TRA skills assessment letter. At CB 45, there is an “Application Assessment Sheet” which states that the applicant had 900 hours training as a regulated apprentice over four years and 900 hours training over five years.
Appearing at CB 68 is the Reference Letter dated 15 October 2009. Mr Dobbie relies on the first paragraph therein which states:
This is to certify that Mrs Satvir Kaur has been working with Highlights hair and makeup by Ching Mercado from August 2008 till date. Satvir has been working as a hairdresser on average about 20 hrs a week on a part-time basis and does more hours on session breaks. To date Satvir has completed more than 950 hours of work experience.
Satvir works independently performing a full range of hairdressing services on a variety of clients in an operating hairdressing salon situation within accepted time restraints.
Her job involves managing multiple services within the salon range, operate as an effective team-member, and deal effectively with a number of contingencies that arise when performing multiple services is a salon team that includes salon assistants, apprentices, senior hairdressers, receptionists, supervisors and managers.
(CB 68)
Mr Dobbie contends that the Reference Letter is written in present tense and that the Tribunal took issue that it implies that she was doing all of these duties, from the first moment that she was said to be working at Highlights. Mr Dobbie contends that the evidence that was given to the Tribunal was that the applicant had started off as a junior and by the end of her time of work experience she had these skills. The Tribunal took issue that the Reference Letter implied that she had been undertaking all the tasks during the whole time of her employment at Highlights.
Mr Dobbie acknowledged that the Tribunal found the Reference Letter to be false or misleading in a material particular in relation to the visa application, and therefore that criterion was not met prima facie. Mr Dobbie referred the Court to subclause 5 of PIC 4020, which states:
(5) In this clause:
information that is false or misleading in a material particular"means information that is:
(a) false or misleading at the time it is given; and
Mr Dobbie set out the legislative background to the Regulation in the written submissions set out above at [21] to [26]. Mr Dobbie then took the Court to Batra (supra) where he reiterated his written submissions set out above at [16]-[19] above and added that, in that case, the TRA did not have the power to set the standard of the work experience.
In Batra (supra) his Honour Murphy J had to decide whether a cancellation of a visa, based on a bogus document was lawful. In that matter the applicant applied for a skills assessment from a the TRA and in doing so he submitted a work reference which stated that he had done more than 900 hours of unpaid work as a pastry cook in a bakery business in Coberg, Victoria. He was successful in obtaining a positive skills assessment and he submitted it to the Department of Immigration and Citizenship as part of his application for a visa. He was granted a general skills migration (subclass 885) visa.
However in Batra, following some investigations, a delegate of the Minister became aware of allegations of the work reference the applicant provided to the TRA was false. The delegate gave notice of intention to consider cancellation of the visa. His Honour Murphy J in Batra made the following findings at [61]-[62]:
61. I consider that the Tribunal was correct in finding that the Skills Assessment is a bogus document for the purpose of s 103 of the Act.
Visa Cancelation Power under s109
62. Having decided that the Skills Assessment is a bogus document for the purpose of s103 of the Act, it next fell to the Tribunal to decide whether or not the requirements of s 109 were otherwise met. Prescribed circumstance reg 2.41(c) requires the decision-maker to consider “the likely effect on a decision to grant a visa...of the correct information or the genuine document.”
Mr Dobbie contends that the substance of the matter before this Court is on point for a visa refusal because it still turns on bogus documents and false or misleading material, particularly in relation to TRA.
I note there is distinction between the decision of Batra (supra) and the matter before this Court. At the time when Batra was before the Tribunal, being 3 March 2011, the Minister had not specified TRA as the lawful Migration Skills Assessment body, however, by the time this matter was before the Tribunal, being 19 November 2012, that approval had been made (on 2 April 2011). Consequently, there is no dispute that at the time of the Tribunal decision in this matter that TRA had been lawfully authorised.
The argument being advanced by Mr Dobbie that the issue in respect of TRA’s approval does not reduce in any way the force of the obiter statement by Murphy J at [72]. Leading to that observation, Murphy J in Batra made the following findings at [62]-[65]:
Visa Cancelation Power under s109
62. Having decided that the Skills Assessment is a bogus document for the purpose of s103 of the Act, it next fell to the Tribunal to decide whether or not the requirements of s 109 were otherwise met. Prescribed circumstance reg 2.41(c) requires the decision-maker to consider “the likely effect on a decision to grant a visa...of the correct information or the genuine document.”
63. The appellant submits that because TRA lacked a valid delegation TRA lacked the power to assess skills or set the standards against which the appellant’s skills were to be assessed. He argues that due to its lack of power, the Tribunal was unable to consider the circumstances it was required to consider under reg 2.41(c) and it was impossible to say what the likely effect of the “correct information” would be on the decision to grant a visa.
64. It is clear that where a statutory scheme creates a precise method through which power is to be conferred on a body or person, failure to follow that method will mean that the body is without authority to make decisions that are supported in law: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.
65. In the present case it is common ground that the Minister did not comply with reg 2.26B(1A) in specifying TRA as a relevant assessing authority. In my view the words of reg 2.26B(1A) are words of necessity, TRA was not properly specified, and it was therefore without power at the time it purported to make the Skills Assessment…
Murphy J in Batra then stated at [72]:
72. In passing, I note my view that the Tribunal was wrong in finding at [30] that 900 hours of work experience was a standard precondition for accreditation. This standard appears to have been set by TRA, which was not empowered to do so. However nothing turns on this finding because the Tribunal also decided that the appellant could not have achieved the 120 point qualifying score without receiving 60 points through the Skills Assessment. As I have already said, the Tribunal was correct in this regard.
Mr Dobbie argues that the mere fact that at a later date TRA was then lawfully authorised, does not mean that the standard that it set at the time unlawfully was also lawfully specified and could be applied in relation to the proceedings before this Court. Mr Dobbie relies on the obiter statement of Murphy J as very persuasive, then the fact that the applicant gave the Reference Letter to TRA in relation to the 900 hours of work experience, it could not have been false or misleading in a material particular and the Tribunal erred in so finding. Further it is argued that this completely separate from the fact that there was lawful specification at a later date as it is a question dependent upon time that the standard took effect because when the Reference Letter, given to TRA, there was no specification set for a 900 hours standard and therefore it was not false or misleading in a material particular on a clear reading of PIC 4020(5).
Mr Dobbie argues that his Honour Murphy J’s obiter goes further in that it says “you don’t have the power to set the standard”. Consequently, it cannot be said that the 900 hours in relation to the standard was false or misleading in a material particular.
I agree with the argument advanced by Mr Smith on behalf of the Minister, in that the case of Batra (supra) is different from the matter currently before this Court and the obiter statement by his Honour Murphy J does not apply in this case. In support of this view it is necessary to examine the way in which PIC4020 comes into operation by cl. 485.224 in Schedule 2 to the Migration Regulations. Schedule 2 to the Migration Regulations sets out the criteria to be met for the grant of a Skilled (Provisional) (Class VC) Subclass 485 (Skilled Graduate) visa where 485.224 is one of the mandatory requirements for the grant of the visa and states:
The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; and
(b) if the applicant had turned 18 at the time of application — satisfies public interest criterion 4019.
PIC4020 is reproduced at [7] above. Mr Smith refers the Court to two aspects which are critical, namely:
a)Whether, in this case, the Reference Letter (CB 68) was a bogus document; or
b)Whether it was information that is false or misleading in a material particular.
In s.97 of the Migration Act a bogus document is defined as:
“bogus document”, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
PIC 4020(5) states:
(5) In this clause:
information that is false or misleading in a material particular"means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.
Both sub-paragraphs (a) and (b) of Subclause 5 need to be focused on and this differs from the approach taken by Mr Dobbie who concentrated on sup-paragraph (a). Sub-paragraph (a) is focused on the time at which the information is either false or misleading and that the time is the time at which the information is given. The effect of that part of the definition is that something which may have been given at a particular time, but later becomes false because of different information or a change in circumstances does not fall within the meaning of false or misleading for the purposes of PIC4020. That is different from the cancellation provision, information can become false or misleading, but that is not the critical aspect of the definition.
The argument advanced by Mr Smith with which I agree, is that sub-paragraph (b) is the critical part in that information must be relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information. The particular of the definition focuses upon the materiality of the information. It is the information which goes to something which will or might determine the visa application. The importance of the second limb of the definition is that even though at the time the information was given there might not have been a relevant criterion because the regulation to that effect was not yet gazetted. If at the time of the decision the information might be relevant or might be something that is considered, then it is misleading in a material particular.
The definition requires that the information has to be relevant to the granting or refusal of the visa not something that is irrelevant to the matter. That comes into effect in this matter because at the time that the information was given it did not have anything to do with the granting or refusal of the visa, because at that time there was no regulation gazetted. However, by the time the Tribunal came to make its decision, the statutory regime had changed and the requirement of the skills assessment came into effect. Consequently, information went to its view of the assessment was relevant to the grant or refusal of the visa.
Grounds 2 & 3
Although the Further Amended Application pleads these as two separate grounds, both parties have elected to provide written and oral submissions under the single heading. The issue is that the Tribunal did not give proper regard to the Reference Letter or, alternatively, the Tribunal’s consideration of the Reference Letter was arbitrary. In the Tribunal’s Findings and Reasons of the Decision Record at [58] it found:
58. …did not correctly reflect …for the period claimed…
(part of the passage emphasised by Mr Dobbie in respect to this issue) (CB 201)
The thrust of the argument advanced by Mr Dobbie is that the Tribunal engaged in what could be called a pernickety exercise of grammar when reading the Reference Letter, however, it is conceded that the Tribunal has looked at the Reference Letter objectively and made a finding of fact. This does not mean that is was within jurisdiction if it clearly looked at the contents such an eye keenly attuned to error, it has not taken the Reference Letter into proper consideration. In support of this contention Mr Dobbie relies on the decision in Kozel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 138 FCR 181.
In Kozel (supra) his Honour Ryan J was considering whether or not the applicant for a visa could satisfy the domestic violence exception provision contained in a Partner visa. Those provisions prescribe that if you are no longer in a relationship with your sponsoring partner before the visa is granted, there are only three exceptions available in order to satisfy the criteria. Those exceptions are that the sponsoring partner is deceased and they died while the relationship existed, there is a child of the relationship and there are certain orders made in relation to that child or in relation to family violence. There are a number of ways of satisfying the family violence criteria under reg.1.23. One is to provide two statutory declarations from different competent persons, such as a registered psychologist or a registered nurse. In Kozel (supra) two statutory declarations from competent persons were provided, but the statutory declarations did not meet the criterion as described because they did not attach the required reports or go in to the reasoning process behind those findings.
His Honour Ryan J in Kozel (supra) stated at [30]:
It may be conceded that Ms James could have set out more clearly the evidence on which her opinion was based. However, “competent persons”, as defined in reg 1.21(1), are unlikely to have had legal training and qualifications and therefore may not “set out” evidence in a manner which would commend itself to a legal practitioner or would be acceptable in a court of law. Nevertheless, the Regulations have reposed in competent persons, not legal practitioners or the tribunal, the function of forming an opinion as to whether a person has suffered domestic violence. In my view, the principle that reasons of an administrative decision-maker are not to be scrutinised over-zealously with a view to detecting some inadequacy of expression from which error may be imputed (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ; 136 ALR 481 ; 41 ALD 1), can be applied by analogy to considerations of statutory declarations of competent persons.
Mr Dobbie submitted the approach taken by Ryan J in Kozel (supra) is exactly the same as what the Tribunal adopted in this matter. The argument is advanced on the basis that all the tasks identified in the Reference Letter were performed from the start of the training period because of some grammatical imperfection in the Reference Letter’s construction, which is not fair, as evidence should be read fairly.
Mr Dobbie argued that if the Tribunal adopts the Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 approach to the Reference Letter, which Mr Dobbie maintains that he did, it is open for this Court to look at the contents therein, and on a fair reading, it is not false or misleading in a material particular. Mr Dobbie maintained that the Reference Letter, when read fairly and squarely in the present tense, was written as at 15 October 2009.
The Court was referred to the Decision Record at [36] (CB 197) under the sub-heading Claims and Evidence where the Tribunal stated:
36. The Tribunal noted that the employment reference which she provided to the TRA and the Department suggests that she started at Highlights Hair in August 2008 and that she was working independently and performing the full range of hairdressing services. The applicant said that she did not do the full range of hairdressing services until about January 2009 and by the end of her employment she was able to perform the full range. The Tribunal pointed out that this is not what the employment reference suggested. The applicant said that when she commenced her employment, she was working under Mr Mercado’s supervision and gradually she learned and became independent. When they started the course in TAFE, they did not learn perming and haircutting from the beginning. As they move forward in the course, their work improves.
(emphasis added)(CB 197)
The argument advanced by Mr Smith was that the contents of the Reference Letter are misleading and referred the Court to the Tribunal’s Decision Record at [56] where it stated:
56. …In the Tribunal’s view, when that reference is read as a whole, it does give the impression that the applicant worked independently as a hairdresser and performed a full range of duties throughout the period of her employment.
…
A person reading that document would, in the Tribunal’s view, form the view that the reference relates to an entire period of employment.
(CB 201)
The Tribunal then stated at [61] of the Decision Record:
61. … the Tribunal has formed the view that the work reference given by the applicant to TRA… gave a false and misleading impression of her skills and experience as a hairdresser.
(CB 202)
Then at [63] the Tribunal continued:
63. The Tribunal has found that the applicant provided information to the assessing authority that was false or misleading and the Tribunal finds that it was so in a material particular.
(CB 202)
Mr Smith contends that the question of whether something is false or misleading is clearly a question of fact and is something that must be left to the Tribunal to determine and that is because the Tribunal has to be satisfied whether the criterion in PIC 4020(1) was satisfied. In order for there to be jurisdictional error in respect of that finding, it depends on whether the finding was open to the Tribunal on the material before it. It had to be a finding that no reasonable Tribunal, properly informed of the law, could have made and whether the finding was available as a matter of law.
Turning to the Reference Letter (CB 68) dated 15 October 2009, there are a number of issues arising, namely:
a)The number of hours worked;
b)What had been done and the skills shown during that time;
c)The certification stating the applicant had been working from August 2008 to 15 October 2009;
d)The concept of it being continuous is conveyed; and
e)She had been working as a hairdresser, on average about 20 hours a week on a part-time basis.
The second sentence of the Reference Letter conveys the impression that the applicant “had been working” for the entirety of the period between August 2008 and October 2009. The Reference Letter is constructed in the present tense. Those initial contextual statements in the Reference Letter, as they set the date, the amount of hours, and the occupation in the present tense, simply went to support the contention it was reasonably open to the Tribunal to conclude that the Reference Letter’s contents were misleading in a material particular.
I agree with the submissions made by Mr Smith that Grounds 2 and 3 amount to no more than an attack on the merits of the decision and do not identify any jurisdictional error (Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [23]-[40]).
Ground 4
Mr Dobbie, in his written submissions, indicated that Ground 4 of the Further Amended Application was no longer pressed.
Conclusion
I am satisfied that none of the pleaded grounds can be sustained and the Further Amended Application should be dismissed with costs.
I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 18 June 2014
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