Kaur v MIMAC
[2013] FCCA 933
•23 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 933 |
| Catchwords: MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled visa – Public Interest Criterion – applicant found to have furnished a work reference to Trades Recognition Australia that contained false or misleading information – whether the Tribunal misinterpreted or misapplied the law, failed to take into account a relevant consideration or made an arbitrary decision considered. |
| Legislation: Competition and Consumer Act 2010 (Cth) Migration Act 1958 (Cth) Migration Amendment Regulations 2011 (No 1) |
| Ankit Batra v Minister for Immigration [2013] FCA 274 Henderson v Pioneer Homes Pty Ltd (No 2) (1980) 43 FLR 276 Hu v Minister for Immigration (2007) 214 FLR 296 |
| First Applicant: | NAVJOT KAUR |
| Second Applicant: | GURNISHAN SINGH SANDHU |
| Third Applicant: | NIMRAT SANDHU |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3112 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 25 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 23 August 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Dobbie Dobbie & Devine Immigration Lawyers Pty Ltd |
| Counsel for the Respondents: | Mr J D Smith |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
By consent, for the purposes of Part 11 of the Federal Circuit Court Rules 2001 (Cth), Najvot Kaur is appointed as litigation guardian of Nimrat Sandhu, and Navjot Kaur is relieved of the obligation of filing an affidavit of consent or of notifying the respondents of her appointment.
The application as amended on 10 April 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3112 of 2012
| NAVJOT KAUR |
First Applicant
GURNISHAN SINGH SANDHU
Second Applicant
NIMRAT SANDHU
Third Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 4 December 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants Skilled Provisional (Class VC) visas. There are three applicants. The first applicant (Ms Kaur) was the principal visa applicant and the other applicants (her partner and child) claimed as members of her family unit.
The following statement of background facts is derived from the submissions of the parties.
The applicants are citizens of India. The first two applicants are married and the third applicant is their infant child, born after the application was lodged, who was included in the application on or about 7 April 2012[1]. Ms Kaur completed a Diploma of Hairdressing Salon Management at Carrick Institute, Sydney from September 2007 to September 2009. On 26 October 2009 she applied for a Class VC visa with a nominated occupation of hairdresser on the basis of her academic qualifications and a skills assessment dated 4 May 2010 from Trades Recognition Australia (TRA)[2] for the skilled occupation of “hairdresser”[3].
[1] Court Book (CB)1-15; CB72-73
[2] CB35
[3] CB34-36
In support of her application to TRA, Ms Kaur provided a work reference letter from a salon where she worked, being Highlights Hair & Makeup Salon by Ching Mercado, a salon based in Blacktown, New South Wales (work reference), and a time sheet for the work undertaken at the salon[4].
[4] CB100-106
The work reference confirmed that Ms Kaur worked as an assistant hairdresser for more than 1046 hours[5]. It also confirmed various skills and techniques that she could demonstrate independently[6].
[5] CB100
[6] CB100-101
On 31 March 2011, a delegate of the Minister sent a letter to Ms Kaur asking her to respond to adverse information; namely, that information given or used to obtain the skills assessment was false or misleading in a material particular[7].
[7] CB120
Ms Kaur replied to the delegate’s letter, denying the delegate’s allegation[8]. Ms Kaur stated that TRA had made checks and verified her work experience at the salon[9].
[8] CB127
[9] CB129
On 12 August 2011, a delegate of the Minister sent a further letter to Ms Kaur asking her to respond to adverse information; namely, she had given a bogus document or information that was false or misleading in a material particular[10].
[10] CB152-162; CB153
On 2 September 2011, Ms Kaur responded to the delegate’s letter[11]. The response included a letter from the salon owner, Mr Mercado, who confirmed her work experience and questioned the Department’s findings[12] from the “Operation Lodge”[13] Departmental investigation relating to his salon.
[11] CB163-166
[12] CB164
[13] CB111-118; CB262 [124]
On 15 September 2011 the delegate of the Minister made a decision to refuse to grant the applicants a visa[14]. The delegate found that Ms Kaur did not satisfy clause 485.224 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations) because she did not satisfy public interest criterion 4020 (PIC 4020) of Schedule 4 of the Regulations[15]. Clause 485.224 relevantly provided:
[14] CB 169
[15] CB177
The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; and…
PIC 4020 relevantly 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.
(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 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.
Criterion 485.224, at the time Ms Kaur applied for the visa (on 26 October 2009), did not contain PIC 4020. PIC 4020 was introduced and took effect on 2 April 2011.
On 22 September 2011 the applicants applied to the Tribunal for review of that decision[16]. On 28 June 2012, the Tribunal sent an invitation to the applicants to attend a hearing on 7 August 2012[17].
[16] CB179
[17] CB200-201
On 9 July 2012, the Tribunal sent a letter to Mr Mercado to provide information to it relating to Ms Kaur’s work experience at the salon[18]. Mr Mercado replied by way of a letter dated 11 July 2012, and confirmed her work experience and her skills learnt during her time at the salon[19].
[18] CB203-204
[19] CB212-220
The applicants retained a registered migration agent who made a submission to the Tribunal on 3 August 2012, questioning, amongst other things, whether TRA was a relevant assessing authority[20].
[20] CB225-229
On 7 August 2012, the applicants attended the Tribunal for a hearing[21]. The Tribunal affirmed the delegate’s decision on 4 December 2012[22].
[21] CB230; CB253 [32]
[22] CB247
The Tribunal decision
The issue for the Tribunal was whether Ms Kaur met PIC 4020.
The Tribunal found that TRA was a relevant assessing authority for the purposes of this criterion[23] and that Ms Kaur had, in relation to her application for a visa, given TRA information concerning her employment as a hairdresser at the Highlights Hair & Makeup Salon[24]. The critical question, then, was whether that information was false or misleading in a material particular.
[23] CB261 [117]
[24] CB262 [119]
In this respect, the Tribunal considered, but rejected as inadequate, a report from officers of the Minister’s Department arising from investigations of the salon[25]. However, the Tribunal found that the work reference was false or misleading in a material particular. It found that the work reference[26]:
…provided by the first named applicant to TRA did not accurately reflect the first named applicant’s employment at Highlights Hair and Makeup Salon as she did not work independently as an Assistant Hairdresser and did not perform the full range of duties of a hairdresser during the time she worked at the Salon.’
[25] CB262 [120]
[26] CB266 [145]
The Tribunal found that the[27]:
…applicant has given, or caused to be given, to a relevant assessing authority information that is false or misleading in a material particular in relation to her Application for Skilled visas.
[27] CB266 [149]
The Tribunal therefore concluded that Ms Kaur was caught by PIC 4020(1)[28]. As Ms Kaur did not satisfy the “waiver” provisions contained in PIC 4020(4), the Tribunal found that she did not satisfy PIC 4020. Ms Kaur therefore did not satisfy clause 485.224, such that the decision under review was affirmed[29].
[28] CB266 [149]
[29] CB267 [153]
The present application
These proceedings began with a show cause application filed on 24 December 2012. The applicants now rely upon an amended application filed on 10 April 2013. There are four particularised grounds in the amended application:
1. The Second Respondent misinterpreted and or misapplied the law to the facts
Particulars
(i) The Tribunal misinterpreted the applicable law by finding the item 4020 of Schedule 4 of the Migration Regulations 1994 (‘the regulations’) did not require it to ask Trades Recognition Australia (‘TRA’) whether the reference letter from Highlights Hair and Makeup Salon (‘the employment reference letter’) given to it by the First Applicant was ‘false or misleading in a material particular’ for the purposes of item 4020.
(ii) The Tribunal misinterpreted the applicable law or misapplied the law to the facts by finding that item 4020 applied to the First 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) 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 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 and misapplied the law to the facts by finding that the employment reference letter given to TRA by the First 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 or failed to have proper regard to the evidence before it
Particulars:
(i) The Tribunal failed to have proper regard, to the employment reference letter.
(a) The Tribunal erroneously found that the employment reference letter ‘did not accurately reflect the first named applicant’s employment at Highlights Hair and Makeup Salon as she did not work independently as an Assistant Hairdresser and did not perform the full range of duties of a hairdresser during the time she worked at the Salon at [145]. The Tribunal subsequently found that the employment reference letter was false or misleading in relation to the First Applicant’s claimed work experience at Highlights Hair and Makeup Salon.
(b) As a result of the way it failed to understand the employment reference letter, it did not have proper regard to it and failed to take it into account before finding that the First Applicant had given a bogus document in relation to the visa application and for the purposes of item 4020.
(ii) The Tribunal failed to take into account, or failed to have proper regard, to the First Applicant’s claim that she had been interviewed by TRA before the skills assessment in question was issued.
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 First 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 of TRA whether the reference letter given to it by the First 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 First 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.
Ground 4 was not pressed.
I have before me as evidence the court book filed on 12 February 2013.
Both parties made written and oral submissions.
Consideration
The applicants’ contentions
Ground 1(iii)
The applicants’ submissions address Ground 1(iii) first. In Ankit Batra v Minister for Immigration[30] (Batra), 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[31].
[30] [2013] FCA 274
[31] Ankit Batra v Minister for Immigration [2013] FCA 274, per Murphy J at [10]
In support of his TRA application, he 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[32].
[32] Above 26 at [3]-[4], and [9]
Justice Murphy, sitting in the appellate jurisdiction of the Federal Court, stated at [72] that[33]:
…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.
[33] Above 26 at [39] for the relevant paragraph from the Tribunal’s decision
Applying Murphy J’s reasoning, the applicants contend that 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 at the time it was given (see PIC 4020(5)). The Tribunal is said therefore to have 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 for the purposes of clause 485.224[34].
[34] Minister for Immigration v Yusuf (2001) 206 CLR 323, per McHugh, Gummow and Hayne JJ at 351-352 [82]-[84]
Ground 1(ii)
Ground 1(ii) asserts that the Tribunal committed jurisdictional error by finding that PIC 4020 applied to the applicants, in so far as it sought to apply to the applicants for acts done by Ms Kaur before the introduction of PIC 4020 and its incorporation into clause 485.224.
Item 4020 was introduced and took effect on 2 April 2011 by virtue of regulation 3 of the Migration Amendment Regulations 2011 (No 1) (amending regulations), and purports to apply to Ms Kaur’s subclass 485 visa application by virtue of regulation 5, which provides:
(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.
Schedule 4 of the amending regulations provides:
Schedule 4, Part 1, after clause 4019
insert
4020(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.
The applicants submit that subregulation 5(2)(a) and PIC 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 authorised for use by the Minister[35].
[35] Minister for Immigration v Li [2013] HCA 18 (8 May 2013) per Hayne, Kiefel and Bell JJ at [70]; Re Minister of Primary Industries and Energy v Austral Fisheries Pty Limited (1993) 40 FCR 381, per Lockhart J at 381-382
The applicants’ submissions explain that 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 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 clause 186.213(1)) for an act done before PIC 4020 came in effect. A liability or disadvantage 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 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 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) (Legislative Instruments Act) provides:
12 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.
The applicants contend 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 for PIC 4020 to operate in relation to acts done before PIC 4020 came into force. They submit that merely because PIC 4020 has been incorporated into a time of decision criterion (here, clause 485.224), that does not mean that its application is not retroactive. They submit that regulation 5(2)(a) of the amending regulations is therefore invalid, in so far as it purports to make PIC 4020 applicable to acts done by Ms Kaur in relation to the 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 1(i), 2 and 3
Grounds 1(i), 2 and 3 are dealt with together, as they assert 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[36]:
…provided by the first named applicant to TRA did not accurately reflect the first named applicant ‘s employment at Highlights Hair and Makeup Salon as she did not work independently as an Assistant Hairdresser and did not perform the full range of duties of a hairdresser during the time she worked at the Salon.
[36] CB266 [145]
The applicants complain that that is not what the letter said. It does not state that she worked independently as an assistant hairdresser. The letter merely sets out the[37]:
skills and techniques she demonstrates independently, applying the knowledge when providing hairdressing services to the clients in my salon.
[37] CB100
The applicants complain (without irony) that the Tribunal read the work reference minutely and finely with an eye keenly attuned to the perception of error[38]. By virtue of the way in which the Tribunal misread the work reference, it did not have proper regard to it. As a consequence, it did not check with TRA as to whether the work reference was false or misleading in a material particular, given the verification process undertaken by TRA[39]. It therefore failed to take into account a relevant consideration and failed to make a relevant enquiry, and therefore committed jurisdictional error[40].
The Minister’s contentions
[38] Kozel v Minister for Immigration (2004) 138 FCR 181, per Ryan J at 192 [30]
[39] CB129
[40] Minister for Immigration v Yusuf (2001) 206 CLR 323, per McHugh, Gummow and Hayne JJ at 351-352 [82]-[84]
Ground 1(iii)
The Minister points out that this ground rests on the assertion that 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 dictum by Murphy J in Batra. In that case, TRA was not a “relevant assessing authority” whereas here it was. That distinction means that the statement relied on by the applicant does not apply to the facts of this case and the ground should be rejected.
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 regulation 2.26B[41]. Regulation 2.26B provides:
[41] regulation 1.03
(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.
In Batra, it was common ground that, at the time of the Tribunal’s decision, 3 March 2011, TRA had not been properly specified as an assessing authority pursuant to regulation 2.26B(1A)[42]. His Honour noted, at [24], that a “relevant assessing authority” is a body or person that is given power under the Migration Act 1958 (Cth) 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[43].
[42] Batra at [12]
[43] Batra at [25]
In that context, the Minister contends that 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 be described as a precondition or otherwise. Rather, his Honour’s comments are limited to circumstances where TRA was not properly specified under the regulations.
Here, the Tribunal found that the relevant assessing authority was TRA in light of legislative instrument IMMI 12/068. That instrument took effect on 12 June 2012 and so post-dated the relevant time in Batra. The Minister says that the applicants have not taken issue with the Tribunal’s finding in this respect and have 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 the applicants’ argument.
Ground 1(ii)
The Minister notes that the applicants’ first contention 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 three year 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 provision came into force, whether or not a particular criterion has been met. In any event, the applicant’s argument has a more serious flaw. It relies on the operation of PIC 4020(2) as imposing a retroactive three year banning period. That cannot be correct. The operative facts in PIC 4020(2) are that:
a)the applicant and each member of a family unit of the applicant has not been refused a visa;
b)where the reason for the refusal was of a failure to satisfy the criteria in subclause (1).
Logically, 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 Minister contends that the injustice complained of simply does not arise.
As to the second basis for this ground, the Minister says, first, that 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[44]. For that reason there is simply no room for the operation of s.12(2) of the Legislative Instruments Act. Secondly, 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[45].
[44] regulation 5(2) (the amending regulation was registered on 1 March 2011)
[45] Hu v Minister for Immigration (2007) 214 FLR 296 at 299 [19]
The critical words in s.12(2) are “it would take effect before the date it is registered”. Those words were considered by Weinberg J in Ignatious v Minister for Immigration[46] 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[47]:
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 at a past date liabilities which did not then exist.
[46] (2004) 139 FCR 254
[47] (1945) 71 CLR 545 at 568
The same reasoning applies here. The amending regulations 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[48].
[48] Hu at 300 [24]
Finally, given the express intention that the amendments were to take effect in the future, the Minister submits that there is no room for operation of any common law presumption against retroactive operation.
Grounds 1(i), 2 and 3
The Minister submits that the premise of these grounds is not correct: the letter said[49]:
a)Ms Kaur worked as an assistant hairdresser for the period of 5 December 2008 to 4 October 2009;
b)within the work period she provides full range of hairdressing services to clients; and
c)she demonstrated “independently” a large number of specified skills.
[49] CB100
In light of that, it was open to the Tribunal to find that the reference suggested that Ms Kaur worked independently as an assistant hairdresser and performed the full range of duties of a hairdresser.
The Minister submits that as the factual basis of the grounds is not made out it is not strictly necessary to consider whether the Tribunal was required to make inquiries of TRA. However, although Ground 4 was not pressed the applicants have raised it in their submissions and the Minister makes a brief reply to those submissions.
The applicants assert that PIC 4020 required the Tribunal to ask the TRA whether the work reference given to it by Ms Kaur was “false or misleading in a material particular”.
The Tribunal did not ask how the TRA would have read the document; rather, it considered the accuracy of the information given by the first applicant to TRA to support her application for a skills assessment in order to determine whether she satisfied the requirements of PIC 4020[50]. In posing that question, the Tribunal rejected the applicants’ submission that it ought to consider what the TRA would have thought of the document.
[50] CB265 [142]
The Minister submits that the Tribunal was correct to consider the matter that way: PIC 4020 does not relate to any circumstance where one of the relevant bodies has actually been misled. Such a limitation on the criterion would leave the word “false” with no work to do: information may be false even though nobody is, at that time aware of that fact. In Minister for Immigration v Dela Cruz[51] the Full Federal Court considered the meaning of “false or misleading in a material particular” in connection with a person who had stated in passenger cards that he was not married when, in fact, he was. The Court said[52]:
The issue is whether the statements, both of which were made in formal documents required to be lodged by persons seeking to enter Australia, were false or misleading in a material particular. That must be a matter for objective assessment … In the context of the Migration Act, it could hardly have been intended that the status of an entrant who has made a false or misleading statement, whether knowingly or innocently, would depend in a particular case upon whether the immigration officer actually turned his mind to that statement or whether, if he did so, it was thought necessary to seek further information from or about the applicant.
[51] (1992) 34 FCR 348
[52] at 353
In light of that authority the Minister submits that it must be accepted that the Tribunal was correct to proceed on the basis that PIC 4020 posed an objective test. Once that is accepted, it must be the case that the answer to the question is reposed solely in the Tribunal. That in turn means that it was neither necessary nor meaningful for the Tribunal to ask TRA whether it thought that the information given to it was false or misleading.
My earlier decision in Singh
The Tribunal referred several times in its reasons to my decision in Singh v Minister for Immigration & Anor[53]. Given that, and the possible relevance of the decision to this case, I invited post hearing submissions from the parties, limited to the impact, if any, of that decision.
[53] [2012] FMCA 145
The parties did not make any further submissions.
Resolution
There have been numerous cases where applicants have been refused skilled visas on the basis that they have supplied a “bogus document” in support of their visa application. The bogus document has usually been a positive skills assessment from TRA concerning the visa applicant’s employment at a particular establishment. The Tribunal has frequently found (or inferred) that the visa applicants have in fact never worked at the establishment as claimed and that they provided false information to TRA in order to obtain the positive skills assessment. In many cases, fraudulent work references were found to have been purchased. This is not one of those cases. Although an investigation by the Minister’s Department cast doubt on the employment of Ms Kaur at the salon, the Tribunal accepted that Ms Kaur did work at the salon for the period claimed and for the number of hours claimed. Ms Kaur worked as a volunteer. This apparently benefited both Ms Kaur (who obtained a work reference to submit to TRA detailing her work undertaken) and the owner of the salon who obtained the benefit of Ms Kaur’s free labour.
The Tribunal, however, while accepting the fact of Ms Kaur’s volunteer work and time spent, took issue with the work reference provided to TRA in terms of what the Tribunal saw as misrepresentation of the quality of the work undertaken. In essence, the Tribunal found that, while Ms Kaur undertook the lower order functions of an assistant hairdresser, she did not undertake the higher order functions asserted in the work reference. The Tribunal considered that the work reference was false or misleading because it misrepresented the skills attained during the course of Ms Kaur’s employment. This was a highly contentious issue before the Tribunal (the other being the Departmental investigation, which the Tribunal rejected). The Tribunal considered and dealt with the issue central to the outcome of the review in the following terms[54]:
The applicants’ migration agent submitted that the letter from Highlights Hair and Makeup Salon provided by the first named applicant to TRA to support her application for a skills assessment contained a number of statements that could be interpreted in a number of ways. He submitted that the issue is how it should be interpreted, that that was not the function of the Tribunal and that it should be left to the TRA. He submitted that if the Tribunal did so it was acting as a review body of the TRA and determining whether the first named applicant would have been able to obtain a positive skills assessment from TRA if some of the tasks were not listed in the letter.
The Tribunal does not accept this submission. The Tribunal is not required, nor is it seeking to, interpret the statements in the letter from Highlights Hair and Makeup Salon in the context of the skills assessment or to second guess the outcome of the first named applicant’s application for a skills assessment if TRA had been provided with information that accurately reflected her skills and experience as a hairdresser. This is the role of the relevant assessing authority and not the role of the Tribunal (see Khan v MIAC [2011] FCA 75). The Tribunal, however, is required to consider the accuracy of the information given by the first named applicant to TRA in support of her application for a skills assessment to be able to determine whether she meets the requirements of PIC 4020.
The applicants’ migration agent submitted that the letter from Highlights Hair and Makeup Salon provided by the first named applicant to TRA to support her application for a skills assessment may have contained some exaggerations in relation to the actual work undertaken by her but that it was insufficient to amount to false or misleading information. The Tribunal does not accept this submission. The letter stated that the first named applicant worked at the Salon as an Assistant Hairdresser from 5 December 2008 and 4 October 2009 and during this period she provided the full range of hairdressing services to clients. The letter then lists a number of skills and techniques which it states the first named applicant demonstrated independently when providing hairdressing services to clients in the Salon.
This is inconsistent with the first named applicant’s oral evidence to the Tribunal. She stated that she undertook basic duties at the Salon and did not undertake the full range of duties of a hairdresser. She also gave evidence that she was always supervised by Ching Mercado and therefore did not work independently. The letter contained misleading information in relation to the first named applicant’s role in the Salon and the duties she performed during her time at the Salon. It conveyed a false impression of her capabilities, skills and experience as a hairdresser.
Having considered all of the evidence and the submissions, the Tribunal finds that the letter from Highlights Hair and Makeup Salon provided by the first named applicant to TRA did not accurately reflect the first named applicant’s employment at Highlights Hair and Makeup Salon as she did not work independently as an Assistant Hairdresser and did not perform the full range of duties of a hairdresser during the time she worked at the Salon. The Tribunal finds, on the evidence before it, that the letter from Highlights Hair and Makeup Salon provided by the first named applicant to TRA for the purpose of obtaining a favourable skills assessment contained information that was false or misleading at the time it was given.
[54] CB265-266 [141]-[145]
In my view, it would be unrealistic to expect an assistant hairdresser to work unsupervised, especially when dealing with the higher order skills of a hairdresser. It would be usual to expect an assistant hairdresser in her first employment to initially undertake the most menial of tasks and to gradually undertake, under supervision, the higher order functions, of which cutting hair is probably the last and highest. Ms Kaur doubtless told the truth when she told the Tribunal that she was always supervised by Mr Mercado and did not work independently. The question for the Tribunal, however, was whether the work reference supplied by Mr Mercado claimed or suggested otherwise. The Tribunal found that it did and that it was hence false or misleading. The Tribunal was also satisfied that the employment reference was false or misleading “in a material particular” in relation to the visa application.
I agree with the Minister’s submission that PIC 4020 poses an objective test[55]. That is consistent with the interpretation of false or misleading representations about goods or services under the Australian Consumer Law forming Schedule 2 to the Competition and Consumer Act 2010 (Cth). In order to be misleading, the conduct in question must convey or contain a misrepresentation[56]. Whether or not particular conduct is misleading is a question of fact to be determined having regard to the context in which the conduct takes place and the surrounding facts and circumstances[57]. The question, whether or not conduct is misleading is to be approached by asking what a reasonable person, of the class to which the conduct was directed, reasonably understands from the conduct[58].
[55] Minister for Immigration v Dela Cruz op cit at [18]
[56] Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 2 TPR 48; 42 ALR 177
[57] ibid
[58] Henderson v Pioneer Homes Pty Ltd (No 2) (1980) 43 FLR 276
It might be argued that the work reference was, in respect of the impugned representations, inherently improbable and that a reasonable person would not have been misled. That was, however, a question of fact for the Tribunal to determine, subject to the boundaries of reasonableness. It would follow that if the Tribunal performed its task unreasonably[59] then the Tribunal would fall into jurisdictional error.
[59] Minister for Immigration v Li [2013] HCA 18
In my view, the conclusions reached by the Tribunal concerning the misrepresentations in the work reference were open to it on the material before it. It did not matter whether TRA was in fact misled. The question which the Tribunal properly addressed was whether the representations as to the work undertaken and skills attained by Ms Kaur during the period of her employment were objectively misleading. I see no error in the Tribunal’s approach in this regard.
I accept that the work reference was open to several interpretations. However, the interpretation preferred by the Tribunal, namely that the work reference represented that Ms Kaur had performed the higher order functions of an assistant hairdresser independently (meaning not under supervision) was open and the Tribunal was entitled to adopt it.
It follows that I reject Grounds 1(i), 2 and 3 advanced by the applicants.
As to Ground 1(iii), in Singh I found that, at the time of the Tribunal decision in that case, TRA had not been approved as a relevant assessing authority and hence the false or misleading representations made to TRA were not material, because they did not relate to a visa criterion which was enlivened. At [65] of my judgment I noted that the position had been purportedly rectified in an instrument of approval dated 15 September 2011 and a further instrument dated 28 September 2011. At [69] I noted that no issue had been raised about the rectifying instrument by reason of any retrospective operation, and I further noted in footnote 38 that I did not interpret the instrument(s) as purporting to validate an invalid decision of the Tribunal or a delegate made before the instruments were made, which would have offended against s.12 of the Legislative Instruments Act.
In its decision at [114]-[117][60] the Tribunal dealt with a similar proposition to that now advanced before this Court:
As a preliminary issue, the Tribunal will consider the submission made by the applicants’ migration gent in relation to TRA. It was submitted that the Tribunal should find that TRA has not been validly approved and specified as the relevant assessing authority for the skilled occupation of Cook, that criteria cl.485.214 and cl.485.221 are not operative in light of the decision in Singh v Minister for Immigration & Anor (2012) FMCA 145 (Singh) and that information provided to TRA, even if false or misleading (this was not conceded), cannot be false or misleading in a material particular for the purposes of PIC 4020. (The Tribunal appreciates that ‘Cook’ was the nominated skilled occupation in Singh).
The applicants’ migration agent submitted that prior to the making of Legislative Instrument IMMI 11/068 and subsequent instruments “there was a purported approval in writing for (sic) purposes of r.2.2.6B made by Chris Evans, Minister for Tertiary Education, Skills, Jobs and Workplace Relations on 15 September 2011” which was defective in a number of ways, did not give the specific approval required by r.2.26(1A) and therefore invalid.
In considering these submissions, the Tribunal firstly notes that in the Application for Skilled visas the first named applicant nominated the skilled occupation of Hairdresser and not Cook as submitted. Secondly, the Tribunal notes that cl.485.221 requires that the first named applicant’s skills have been assessed by the relevant assessing authority as suitable for her nominated skilled occupation. This criterion is a time of decision criterion and the current relevant Legislative Instrument is IMMI 12/068.
The submissions made by the applicants’ migration agent referred to above were considered by the court in Zhang v Minister for Immigration & Anor (2012) FMCA 1011 (Zhang). In view of the reasoning in the case of Zhang, the Tribunal is satisfied that Legislative Instrument IMMI 12/068 is valid. The Tribunal finds, on the evidence before it, that the first named applicant nominated the occupation of Hairdresser (ANZSCO Code 391111) which is a skilled occupation specified in Legislative Instrument IMMI 12/068. The Tribunal finds that for that occupation the relevant assessing authority specified in Legislative Instrument IMMI 12/068 is Trades Recognition Australia (TRA).
[60] CB261
I do not think that the decision of the Federal Court in Batra changes anything. I agree with the Minister that the observations by Murphy J at [72] of that judgment are not applicable because the fact situation here is different. In Batra at [24] his Honour said:
Plainly, a “relevant assessing authority” is a body or person that is given power under the Act to set the occupational skills standard required, and to assess the skills of a visa applicant against the relevant standard. It is uncontroversial that upon an assessing authority being satisfied that a visa applicant has met the relevant standard it is to provide certification of this in a document named a “skills assessment”.
I conclude that, because TRA had been properly specified as a relevant assessing authority at the time of the Tribunal decision, representations made in the work reference were material both to the TRA assessment and PIC 4020.
It follows that I reject Ground 1(iii).
I also reject Ground 1(ii). The amending regulations relied upon by the applicants did not remove any pre-existing visa entitlement the applicants had. Nor did the Regulations impose any additional burden by way of a time of application criterion. The effect of the amendments was to render material at the time of decision something which had occurred before the amendments had taken effect. It is true that the amending regulations introduced a substantial deterrent in the form of the three year banning period where PIC 4020 was not satisfied. However, the applicants did not have to pursue their visa application in the light of the amendments. They could have withdrawn it. In my view, and consistently with the decision of the High Court in Toowoomba Foundry Pty Ltd[61] the operation of the amendments did not destroy as at a past date any rights which then existed and neither did it impose at a past date any liability which did not then exist. I conclude that the amendments did not take effect before the date of registration of the Regulations and hence they did not offend against s.12(2) of the Legislative Instruments Act. Neither do I think it necessary to consider any common law presumption against any retroactive operation.
[61] op cit
Conclusion
I conclude that the applicants have failed to establish any jurisdictional error in the decision of the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 23 August 2013
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