Kaur v Minister for Immigration
[2014] FCCA 2154
•23 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2154 |
| Catchwords: MIGRATION – Application seeking review of decision of Migration Review Tribunal– 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: Migration Act 1958 (Cth), ss.97, 109, 348, 359 Migration Regulations 1994 (Cth), reg.2.26B, cl.485.224 of Sch.2, PIC 4020 of Sch.4 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Kaur & Ors v Minister for Immigration & Anor [2013] FCCA 933 |
| First Applicant: | GURPREET KAUR |
| Second Applicant: | RAJWINDER SINGH |
| Third Applicant: | GURTAAZ SINGH GILL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 6 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 10 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 23 September 2014 |
REPRESENTATION
| Solicitor for the Applicants: | Mr N Dobbie of Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr T Reilly |
| Solicitor for the First Respondent: | Ms L Buchanan of Australian Government Solicitor |
| The Second Respondent: | The Second Respondent filed a submitting notice of appearance. |
ORDERS
The name of the first respondent be amended to “Minister for Immigration and Border Protection”.
The application filed on 3 January 2013 and amended on 2 May 2013 be dismissed.
The applicant pay the first respondent’s costs and disbursements of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 6 of 2013
| GURPREET KAUR |
First Applicant
| RAJWINDER SINGH |
Second Applicant
| GURTAAZ SINGH GILL |
Third 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”) seeking review of a decision of the Migration Review Tribunal (the “Tribunal”) made on 10 December 2012, affirming the decision of a delegate of the first respondent to refuse the applicants Skilled (Provisional) (Class VC) (subclass 485) visas (the “Visa”).
The solicitors for the first respondent, the Minister of Immigration and Border Protection (at the time of the lodging of the application before this Court the “Minister for Immigration and Citizenship) (the “Minister”), were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
The applicants were granted leave to file and serve an amended application and any evidence they wished to rely upon on or before 3 May 2013. The applicants were also granted leave to file and serve a short written outline of submissions and list of authorities fourteen days before the date of the hearing. The applicants’ representatives filed an amended application on 5 May 2013 (the “Application”) and an affidavit of Ma Rosario Xiella Devine, affirmed and filed 2 May 2013 (the “Devine Affidavit”). Annexed to the Devine Affidavit is a transcript of the hearing before the Tribunal held on 16 August 2012 (the “Transcript”).
Background
In setting out the following background material I have quoted directly from the Court Book and submissions prepared by 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.
As only the first applicant made substantive claims for the visa, she will be referred to henceforth as the “applicant”.
The applicant is a citizen of India. She applicant for the Visa on 14 December 2009 (CB 1-18) and provided a positive skills assessment from Trades Recognition Australia (“TRA”) dated 19 November 2009 for the skilled occupation of “Hairdresser” (CB 15). A delegate of the Minister refused the Visa application on 16 September 2011 (CB 91-99). The applicant applied to the Tribunal for review of the delegate’s decision on 5 October 2011 (CB 105-111). On 9 July 2012, the Tribunal wrote to the applicant’s former employer, C. Mercado, owner of Highlights Hair & Makeup by Ching, a salon based in Blacktown (“Highlights”), pursuant to s.359 of the Migration Act (CB 152-153). The response received included a document dated 13 July 2012 describing the applicant’s duties at Highlights (the “Reference Letter”) (CB 157-158).
The Reference Letter stated the applicant had:
…completed her 900 hours of Salon Work Experience as a Trainee Hairdresser during the time period commencing 3rd May 2008 and 22nd June 2009.
(CB 182)
On 12 August 2011, a delegate of the Minister sent a letter to the applicant 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 (CB 77-82).
The applicant replied to the delegate’s letter denying the delegate’s allegation by way of statutory declaration, provided a letter of support from Highlights and provided a time sheet of hours worked there (CB 86-90).
On 16 September 2011, the delegate of the Minister refused the visa application (CB 91-102). The delegate found that the applicant did not satisfy clause 485.224 of Schedule 2 of the Migration Regulations 1994 (the “Migration Regulations”) because she did not satisfy the public interest criterion 4020 (“PIC 4020”) of Schedule 4 of the Migration Regulations (CB 97).
On 5 October 2011, the applicant sought review of the delegate’s decision in the Tribunal (CB 103-118). On 28 June 2012, the Tribunal sent an invitation to the applicant to attend a hearing on 16 August 2012 (CB 139-140). On 9 July 2012, the Tribunal sent a letter to C. Mercado to provide information to it relating to the applicant’s work experience at Highlights. C. Mercado replied by way of the Reference Letter dated 13 July 2012, and confirmed her work experience and her skills learnt during her time at the salon (CB 154-161).
The Tribunal’s Decision
The Tribunal held a hearing on 16 August 2012 (CB 163-165). On 26 November 2012, the Tribunal requested that the applicant provide the reference letter given to TRA in support of the applicant’s skills assessment application. That letter was provided on 30 November 2012 (CB 178-182; 182-183).
On 10 December 2012, the Tribunal affirmed the delegate’s decision (CB 186-203). The Tribunal discredited the Department of Immigration’s investigation report that the delegate relied on, and gave it limited weight (CB 199 at [105]). The Tribunal found that the applicant’s assessment of 19 November 2009 from TRA for the assessment of her skills as a hairdresser (CB 25-26) was obtained on the basis of false or misleading statements in the letter from Highlights dated 19 October 2009 (CB 182-183) concerning the applicant’s skills and experience. As the applicant had caused this document to be given to TRA to obtain a favourable skills assessment, she did not meet the requirements of PIC 4020(1)(a) (CB 201-202 at [115]-[120]). The Tribunal declined to waive this requirement pursuant to PIC 4020(4) (CB 202 at [121]-[123]). Accordingly, the applicant did not satisfy cl. 485.224, and so the Visa had to be refused.
Current Proceedings
The orders sought in the Application are as follows:
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 Applicants’ 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.
In the Amended Application the applicant’s representatives stated that they do not press; Ground 1(i), Ground 1(ii), Ground 4 and Ground 5. The Grounds sought in the application are:
1. The Second Respondent misinterpreted and or misapplied the law to the facts
Particulars:
(iii) The Tribunal misinterpreted the applicable law and misapplied the law to the facts by finding that 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.
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 take into account, or failed to have proper regard, to the employment reference letter and or the evidence given by the First Applicant at the hearing.
(a) The Tribunal found that the employment reference letter from Highlights Hair & Makeup by Ching Mercado (‘the employment reference letter’) did not accurately reflect the First Applicant’s oral evidence given to it was not consistent with the employment reference letter given to TRA was false or misleading in a material particular in relation to her claimed work experience at Highlights Hair and Makeup Salon.
(b) The Tribunal therefore did not have proper regard to the employment reference letter and or the evidence given by the First Applicant at the hearing and failed to take into account before finding that the reference letter given to TRA was false or misleading in a material particular, for the purposes of item 4020.
3. The decision of the Second Respondent is arbitrary or irrational
Particulars:
(i) The decision of the Tribunal is arbitrary or irrational 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.
(a) The decision of the Tribunal is arbitrary or irrational because, at the hearing, the tribunal told the First Applicant that her evidence to it was she performed all of the duties in the employment reference letter after 200-300 hours of working at the salon, and the First Applicant confirmed that the reference letter was a true reflection of the duties mentioned. Despite this confirmation, the Tribunal found that the Applicant’s evidence given to it was inconsistent with the employment reference letter.
Legislative Framework
Clause 485.224 of the Migration Regulations provided:
485.224 The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; and
PIC 4020 of Schedule 4 to the Migration Regulations stated at the time of the Visa application:
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.
Applicant’s Submissions
Ground 1(iii)
The applicant addressed Ground 1(iii) and took the Court to PIC 4020(5) (set out at [17] above).
The work reference was given to TRA on 19 November 2009 (CB 198 at [99]). At that time, TRA was not a relevant assessment authority for the purposes of PIC4020(1). PIC 4020(5) requires that the information is false or misleading at the time it is given, and 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 operation of PIC 4020(1) and 4020(5) together requires that the information given must be false or misleading at the time it is given.
His Honour Murphy J in Batra v Minister for Immigration and Citizenship & Anor (2013) 212 FCR 84 (“Batra FCA”) dealt with a matter where 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. 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 (at [3]-[4] and [9]). Justice Murphy stated at [72] therein:
72. …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…
The applicant argues that applying Murphy J’s reasoning in Batra FCA, the applicant’s work reference also related to a minimum of 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). This proposition was rejected by Judge Driver in Kaur & Ors v Minister for Immigration Minister for Immigration, Multicultural Affairs and Citizenship & Anor [2013] FCCA 933 (“Kaur FCCA”) at [68]-[72]. The applicants in Kaur FCCA have appealed to the Federal Court. The applicant submits that the judgment of Judge Driver should not be followed for the reasons set out above.
The applicant submits that the Tribunal therefore committed jurisdictional error by finding that the applicant 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 cl.485.224: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82]-[84].
Ground 2
The applicant submits that the Tribunal found that the work reference provided by the applicant to TRA for the purposes of obtaining a favourable skills assessment contained information that was false or misleading at the time it was given (CB 201 at [115]). The Tribunal further found that in considering whether it was false or misleading in a material particular, the information in the letter was “of moment and significant”, such that it was false or misleading in a material particular for the purposes of subclause 4020(1) (CB 202 at [118] and [120]).
The applicant submits that the Tribunal conducted the hearing as though it had the 19 October 2009 reference letter and had read it (Transcript, p.34, Q221). The applicant submits that the Court Book reveals that the Tribunal did not have the 19 October 2009 reference letter before it at the time of the hearing (CB168-174). It only received the work reference on 30 November 2012, after it requested a copy of it from the applicant’s representative. The applicant submits that the Tribunal had nothing on which to base the following statements it made to the applicant at the Tribunal hearing:
TRIBUNAL MEMBER
Q221 Later on I think you said after you had done maybe two or three hundred hours you started doing things like cutting hair and more advanced things. Can you please interpret. And that it was always under the supervision of Ching. And you said the main difference by the end of the time you were there, one of the main differences was that the paid hairdressers were independent, unsupervised, but that you were always supervised. So the letter that you provided TRA to obtain the assessment may not accurately reflect exactly what you did there. Do you want to say anything about that?
…
Q227 What I’m saying is that your evidence was that you didn’t do all of the duties until you were, you had done two or three hundred hours of work. You started gradually doing things like cleaning and then gradually increased it the longer you were there. I’m not saying that’s bad or that’s wrong. If that’s what happened, that’s fine. But the issue is though, is whether what was in the letter to TRA is an accurate reflection of what happened during the time you worked there.
MS KAUR
A(interpreter) What we did actually that is a true reflection of those duties, you know, which were mentioned. It had been mentioned in that particular letter of TRA.
TRIBUNAL MEMBER
Q228 Well, that’s the problem, it’s not consistent with your evidence today
(Transcript, p. 34 & 35)
In its Decision Record, the Tribunal stated at [112]:
112. The letter then listed a number of services that the first named applicant has not claimed to performed whilst working at Highlights Hair and Makeup Salon including the following:
·Perming long, medium and short hair, using either acid or alkaline solutions for both traditional winding and spiral perm winding using brands such as L’Oreal and Delorenzo perming solutions on both male and female clients.
·Beard trims and neck line shaves were performed on males of all age group using electrical equipment.
·She has performed chemical hair straightening techniques using products such as Thermal Japanese straightening system and the Lakme straightening systems on a variety of social and ethnic background individuals, both male and females.
·She has performed various hair dressing techniques such as Catwalk designs, Formal designs and High fashion designs with skills of chignon, French rolls, pin curls, twists and twirls using a wide range of electrical equipment and following preparation procedures for hot rollers. (sic)
(CB 200-201)
The Tribunal went onto to state at [113]-[115]:
113. These services listed above are not consistent with the first named applicant’s oral evidence of her role and the duties she performed whilst working at Highlights Hair and Makeup Salon. During the course of the hearing, the Tribunal discussed with the applicants its concerns in relation to their application and, in particular, its concerns that the first named applicant did not perform the full range of duties of a hairdresser as claimed in the letter. The first named applicant responded that she did almost all the duties. She stated that she did haircuts, colouring and bleaching.
114. When the Tribunal raised the issue of whether the letter from Highlights Hair and Makeup Salon that the first named applicant provided to TRA accurately reflected the duties she undertook at the Salon, the first named applicant responded that the letter was an accurate reflection of what she did. However, she then stated that she did basic duties. She stated that she had told the Tribunal the duties she undertook at the Salon. She stated that it was impossible for a student to cut hair immediately. She claimed that Mr Mercado gave her instructions on how to cut hair and later, when he was satisfied, he asked her to do it. She stated that she worked under Mr Mercado’s supervision and could not do things freely or independently even if she wanted to do so.
115. 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 during the period 3 May 2008 to 22 June 2009 as she did not perform the full range of duties of a Hairdresser as claimed. The letter conveys a false or misleading impression of the first named applicant’s capabilities, skills and experience as a hairdresser. 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.
(CB 201)
The applicant’s evidence at the Tribunal hearing in relation to her work experience is as follows:
Q127 ---what were your duties?
Applicant: Like, my duties, in the starting my duties were just basic duties like um… shampoo, conditioner…
A(interpreter): Shampoo, conditioner wash the towels and make the entrance ready for the public. Whatever she used to say, I had to do that at the beginning. Then mu duties increased after a while.
Q128 After how long did it increase?
A(interpreter): The she started showing me how to cut hair, colouring, bleaching and she was giving training to me.
Q129 So how did she train you?
A(interpreter): An hour before the client she used to tell me what she was going to do, so it was demonstrating actually first of all so that we could also have learned those things. And also she made us familiar with the hairdressing products and she had to ask that client actually that she was training me and I could cut a client’s hair. She had to seek permission from the client.
Q130 Ah hmm.
A(interpreter): And then I was also assisting her when she was colouring the hairs.
Applicant: And bleaching too.
Q131 So how long after you started working there did you start cutting hair?
A(interpreter): After two hundred, three hundred hours, after doing two hundred, three hundred hours I start cutting hair.
Q132 What other duties did you do?
A(interpreter): I has different kinds of duties. I have to sterilise all different hairdressing products, I had to set the products.
Q133 Set the products?
Applicant: Yeah, yeah.
Q134 Can you explain what that means?
A(interpreter): When we used to get new products in the salon, then we had to put prices on that and then those products are displayed on the racks in the salon… shampoo and conditioning. And I could also do bleaching but that was done under supervision. And then straightening the hair… and then we had to tidy up the storeroom too or clean the fridge.
…
Q136 --- towards the end of that time what were your duties then?
A(interpreter): We were almost independent, we could do lots of duties independently. And she used to come and check. And if she said O.K. then it’s finished.
A(interpreter): …she used to check all our work.
…
Q141 Have you told me all the details of the work that you did while you were at Highlights Hair and Make-up?
A(interpreter): Maybe I’ve forgotten something. We are doing bridal designing too.
Q142 What do you mean?
A(interpreter): Bridal, styling for bridals. So, sometimes, you know, the ladies used to come and those were brides and so Ching asked that there was some particular hair styling for those Indian brides which we could do in the salon.
Q143 So I think that you told me that you, excuse me, cut hair.
Applicant: Yeah.
Q144 You coloured hair, you did bleaching, you did shampooing, you straightened with an iron.
Applicant: Yeas, Ma’am
Q145 O.K. Was that it? And the styling for brides?
A(interpreter): …Sterilising the hair products plus tidy up the salon when we’re finished.
Q146 So the---
A(interpreter): Tidying up the salon, yeah. Tidying up the salon when we finish for the next morning.
Q147 Yeah.
A(interpreter): The aprons and towels that I did for the next morning.
Q148 Ah hmmm
A(interpreter): Sometimes we had to wash the bin because the bin was full of and
Q149 Have you ever been refused a Visa previously?
Applicant: No, Ma’am
(Transcript p.19-22)
The Tribunal stated its concerns which are reflected on the Transcript as follows:
Q220 Please interpret exactly what’s said. Ms Kaur, this is the main concern I have about your case. And this is based on your own evidence. My concern is that you did not undertake the full range of duties of a hairdresser during the time you worked there as a volunteer. So for example you told me today that when you first started you used to do things like cleaning and washing towels and shampooing and assisting Ching when he was doing colouring et cetera.
(Transcript p.19-22)
The applicant submits that the reference letter never stated that she undertook the full range of duties of a hairdresser during the time she worked there. This misconception of what the applicant did arose out of the fact that the Tribunal did not have the 19 October 2009 reference letter before it at the time of the hearing. The Transcript stated:
TRIBUNAL MEMBER
Q221 Later on I think you said after you had done maybe two or three hundred hours you started doing things like cutting hair and more advanced things. Can you please interpret. And that it was always under the supervision of Ching. And you said the main difference by the end of the time you were there, one of the main differences was that the paid hairdressers were independent, unsupervised, but that you were always supervised. So the letter that you provided TRA to obtain the assessment may not accurately reflect exactly what you did there. Do you want to say anything about that?
MS KAUR
Applicant: Yes, ma’am. I want to say, like---
A(Interpreter): I did mostly all of the duties there, for example haircutting.
TRIBUNAL MEMBER
Q222 Slow down, he needs to interpret.
A(Interpreter) She is telling me in English too…
TRIBUNAL MEMBER
Q223…
MS KAUR
Applicant: And we call combined cut, it’s like graduation from the front and like um, like, if you got… in the front and graduation in the back, like…permanent, semi, demi and all of these… like we did bleach. How can we forget all these things, you know. If I did that then I can understand… You know. If I did with my hands then I can remember that I did… you know. If I mix… if I mix colour, you know, like, how can I forget, like, how can I, how can anyone say that I didn’t do over there any work, you know.
TRIBUNAL MEMBER
Q224 I don’t anyone is saying that.
MS KAUR
Applicant: Like, I’m not saying, like you… but according to me, like, how can they, like, say, like I didn’t work over there or my documents are bogus.
TRIBUNAL MEMBER
Q225 I’m not talking about what the Department said, I’m telling you based on your evidence today to m, these are my concerns.
MS KAUR
A(interpreter): Madam, what do toy want to know exactly from me?
TRIBUNAL MEMBER
Q226 Well, I’ve asked you, I asked some questions and you’ve answered them and I think you’ve answered them truthfully
MS KAUR
A(interpreter) Yes, I answered you questions but you were saying that I didn’t do all the duties.
TRIBUNAL MEMBER
Q227 What I’m saying is that your evidence was that you didn’t do all of the work duties until you were, you had done two or three hundred hours of work. You started gradually doing things like cleaning and then gradually increased it the longer you were there. I’m not saying that’s and or that’s wrong. If that’s what happened, that’s fine. But the issue is though, is whether what was in the letter to TRA us an accurate reflection of what happened during the time you worked there.
MS KAUR
A(interpreter) What we did actually that I a true reflection of those duties, you know, which were mentioned. It has been mentioned in that particular letter of TRA.
TRIBUNAL MEMBER
Q228 Well, that’s the problem, it’s not consistent with your evidence today.
MS KAUR
A(interpreter): I have mostly told you all the duties which I did there.
Applicant: Like my basic duties, yeah, my basic duties too like---
A(interpreter): it is impossible for any trainee or a student, whenever the student stars cleaning there that the scissors are given to him and that person is told to cut hair straight away. It’s impossible. I take this time slowly and slowly, you know. She gave me some instructions and she demonstrated how to cut hair and then later on when she was satisfied that I could cut hair, then she asked me to do so. Because we were working under her supervision and we had to listen to her instructions. It was quite important. And I couldn’t do things freely or on my own even though I wanted to. Even though I managed to complete the training for my hairdressing but also when we came to the end of the training, she had to check all my performance and work which I did and then she approved of my work which I had done. Maybe I’ve forgotten something small but most of the duties, basic duties, I have already told you.
(Transcript, p.34-36)
The applicant submits that the extracts above show that the Tribunal accepted that the applicant had given an honest account of her work experience at the salon. The applicant’s evidence in summary was that the Reference Letter was a true reflection of those duties and that she performed those duties.
The applicant contends that it is significant that the Tribunal never asked the applicant to give a detailed account of each task performed. For example, the Tribunal accepted that the applicant did hair straightening. In the Decision Record, one of the reasons that the Tribunal found against the applicant was because she had not claimed to have performed chemical hair straightening techniques using products such as thermal Japanese straightening system and the Lakme straightening systems. The Tribunal never asked the applicant about how she performed hair straightening. The reason the Tribunal did not do so was because the Tribunal had not seen the 19 October 2009 reference letter, despite its outward appearance at the Tribunal hearing that it had. That was also the other service mentioned at CB 200-201 at [112].
The applicant argues that the Tribunal did not embark on a forensic line of questioning about the services because it did not have the work reference from which it could formulate it questions and against which it could measure the applicant’s responses.
Furthermore, the applicant did not state that she only did basic duties. Yet that is what the Tribunal states she said (CB 201 at [114]). What the applicant said was that she has “mostly told” of all the duties she performed (Transcript, p.36) and that she had maybe had forgotten something small, but most of the duties like basic duties, she had already told to the Tribunal (Transcript, p.36). This was in the context of the applicant previously stating to the Tribunal that the original letter provided from Highlights was a true reflection of what she did at the salon (Transcript, p.36).
The applicant submits that what the Tribunal did instead was to reason as follows; the applicant did not claim to have performed certain services as set out in the reference letter, even though the Tribunal did not ask about them. Therefore, the Tribunal she did not perform them. The problem with that is that the applicant did claim to have performed everything in the work reference (Transcript, p.35). Furthermore, when she was asked if she had performed hair straightening, she confirmed that she had done so. The Tribunal accepted that her evidence given at the hearing was truthful (Transcript, p.35).
The applicant submits that the Tribunal did not have proper regard to the employment reference letter and to the evidence given by the applicant at the hearing, and failed to take that into account before finding that the reference letter given to TRA was false or misleading in a material particular, for the purposes of PIC 4020. The Tribunal therefore committed jurisdictional error: Yusuf (supra) at [82].
Ground 3
The applicant submits that the decision of the Tribunal is arbitrary or irrational 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.
The decision of the Tribunal is arbitrary or irrational because, at the hearing, the Tribunal told the applicant that her evidence to it was that she performed all of her duties in the employment reference letter after 200-300 hours of working at the salon (Transcript, p. 35), and the applicant confirmed that the reference letter was a true reflection of the duties performed (Transcript, p.36). Despite this conformation, and the Tribunal accepting her evidence as truthful (Transcript, p.35-36), as is shown by the extracts of the Transcript set out above, the Tribunal found that the applicant’s evidence given to it was inconsistent with the employment reference letter (CB 201 at [115]). This was not a case where reasonable minds might differ: Minister for Immigration v SZMDS & Anor (2010) 240 CLR 611 per Crennan and Bell JJ at [130]-[131]; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 per Hayne, Kiefel and Bell JJ at [76] where their Honours stated:
76. As to the inferences that may be drawn by an appellate court, it was said in House v R that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.
(footnote omitted)
At the hearing Mr Dobbie, representing the applicant, expanded on his argument of the Batra FCA case. Mr Dobbie argues that Batra FCA was a case relating to s.109 and the cancellation of a visa because Mr Batra provided a bogus document as defined by s.97 of Migration Act. Mr Dobbie argues that although this case deals with a cancellation of a visa, Murphy J’s reasoning is not amiss in relation to understanding the application of PIC 4020(5). In Batra FCA, the applicant provided an employment reference letter to get at TRA skills assessment and used it for a migration application that was ultimately successful. Investigations by the Department of Immigration determined that the applicant never worked where he claimed. The investigations found that he used the job reference provided to TRA to get a skills assessment and that skills assessment was, by definition, a bogus document because it was obtained as a result of information that was false or misleading in a material particular.
Mr Dobbie noted that at that time the skills assessment was obtained by the applicant, TRA had not been lawfully authorised by the Minister. In the present matter TRA had been lawfully gazetted. At [25] of Batra FCA, Murphy J stated:
25. In the present case, because at the relevant time TRA was not properly specified as an assessing authority under the Regulations, it is not in dispute that TRA had not properly set a skills standard for the occupation of “Pastry Cook”, and there was no standard against which the skills of the appellant could be assessed pursuant to reg 2.26B(2).
Mr Dobbie argues that there was no standard at the time as TRA was not authorised to set it. Mr Dobbie submits that Murphy J found that when you are looking at the skills assessment, the document ultimately was a bogus document. At [56] and [60] in Batra FCA Murphy J stated:
56. In construing the term “bogus document” I must consider both the context and purpose of ss 97 and 103: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (“Project Blue Sky”) per McHugh, Gummow, Kirby and Hayne JJ at [69]. There is nothing in ss 97(c) and 103, or elsewhere in the Act, to indicate that Parliament intended the word “document” to be given anything other than its ordinary and natural meaning. The Shorter Oxford English Dictionary defines “document” as “evidence” or “proof” and “something written, inscribed, engraved, etc, which provides evidence or information or serves as a record”.
…
60. … In my view it is plain in the present case that the Skills Assessment was obtained because of the false work reference. The Skills Assessment simply picked up the 900 hours of work experience which the appellant falsely claimed to have. That the Skills Assessment is of no legal effect for its specific purpose is immaterial as to whether or not it falls within this definition….
Mr Dobbie took the Court to the Highlights reference letter (CB 182) dated 19 October 2009. Mr Dobbie notes that the date stamp of the Tribunal receiving the letter is 30 November 2012. Mr Dobbie pointed out that the Tribunal hearing was conducted on 16 August 2012. Mr Dobbie submits that this document, which was given to the Tribunal some three months after the hearing, was found to be false or misleading in a material particular. Mr Dobbie argues that by virtue of PIC 4020(1) the Tribunal found that the applicant had transgressed those provisions and, as there was no discretionary element, there was no waiver, and the Tribunal affirmed the decision.
Mr Dobbie took the Court to [112]-[113] at CB 200 (reproduced at [25] and [26] above). Mr Dobbie argues that the Tribunal did not have the 19 October 2009 reference letter at the hearing, yet in the Decision Record, it purports that it did. Mr Dobbie contends that the genesis for this error was that the Department performed an investigation, where the Department investigated whether or not various visa applicants had actually worked at the hairdressing salon. Mr Dobbie submits that the Tribunal found that the various visa applicants did work there. Mr Dobbie submits that the Tribunal carried on the theme of investigating, which ultimately ended in the Tribunal requesting the applicant’s adviser to provide a copy of the letter, because the Department did not have it. Although the Tribunal talks about a concern it had, in effect, it could not have had those concerns as at that time it did not have a copy of the 19 October 2009 reference letter.
Minister’s Submissions
Mr Reilly, appearing for the Minister submits that Ground 1(iii), when read with the applicant’s submissions, claims that the Tribunal erred in law because TRA was not a relevant assessing authority as at 19 October 2009 (as acknowledged by the Tribunal at CB 201 at [116]), and so it is said to follow that the Highlights 19 October 2009 reference letter of that date could not have been false or misleading in a material particular. However, the Tribunal was entitled, in applying PIC 4020, to have regard to whether the applicant had in fact submitted false or misleading information to TRA, regardless of whether TRA was validly appointed at the time: Batra FCA per Murphy J at [54]-[61]; Rafi v Minister for Immigration & Anor [2012] FMCA 1002 per Hartnett FM (as she then was) at [30]; Mudiyanselage v Minister for Immigration and Citizenship & Anor (2012) 134 ALD 199 (“Mudiyanselage FMCA”) per Emmett FM (as she then was) at [20] and affirmed in Mudiyanselage v Minister for Immigration and Citizenship & Anor (2013) 211 FCR 27 (“Mudiyanselage FCA”) per Tracey J; Singh v Minister for Immigration & Anor [2013] FMCA 243 per Driver FM (as he then was) at [10]-[12]. The comments in Batra FCA at [72], relied upon by the applicant do not suggest to the contrary and are made in a different context, concerning s.109 of the Migration Act and Reg. 2.41 of the Migration Regulations: see Kaur FCCA per Judge Driver at [68]-[72]. Nothing said in Batra FCA at [72] suggests that information given to TRA cannot be “false or misleading in a material particular” simply because TRA is not validly appointed at the time as this ground suggests.
The Minister submits that it may also be noted that cl.485.224 is a “time of decision” criterion, so the relevant date for determining whether cl.485.224 is applicable to the applicant is that of the Tribunal’s decision on 10 December 2012. As at that date, TRA had been validly specified as a relevant assessing authority for the purposes of reg.2.26B of the Migration Regulations in relation to persons, such as the applicant, who applied for a visa before 1 July 2010 by Legislative Instrument IMMI 11/068: see Singh v Minister for Immigration & Anor [2012] FMCA 145 per Driver FM (as he then was) at [40], [69]; Zhang v Minister for Immigration and Citizenship (2012) 271 FLR 65 per Barnes FM (as she was then); Singh v Minister for Immigration & Anor [2013] FMCA 243 at [10]. The Tribunal notes that these cases at [116] of the Decision Record (CB 201). This was relied upon in Kaur FCCA at [71] to find that because TRA was validly specified as an assessing authority at the time of the Tribunal’s decision; false representations were “material” within PIC 4020(1).
The Minister submits that Ground 2 claims that the Tribunal did not take into account to have “proper regard” to the 19 October 2009 reference letter and the applicant‘s evidence. The Minister submits that this ground is difficult to understand. The Tribunal plainly took the 19 October 2009 reference letter and the applicant’s evidence into account because it discusses them in detail at CB 200-201 at [107]-[115]. The suggestion that the Tribunal did not give “proper regard” to that evidence is just a disguised assertion that the Tribunal came to a wrong finding of fact that the letter contained information that was false or misleading. However, it is trite law that there is no error of law in the Tribunal making a wrong finding of fact: Waterford v Commonwealth of Australia (1987) 163 CLR 54 at 77. Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303; Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [137]; and the Court cannot review the merits of the Tribunal’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [56]. Nor following Minister for Immigration and Citizenship v SZJSS & Ors (2010) 243 CLR 164 at [29]-[37] can the requirement that the Tribunal give “proper, genuine and realistic consideration” to the evidence before it found a jurisdictional error simply because the Tribunal made an allegedly wrong finding of fact, or give what is alleged to be insufficient weight to some evidence before it: Minister for Immigration and Citizenship v MZYHS & Anor (2010) 119 ALD 534 per Kenny J at [36]-[43].
The Minister submits that Ground 3 complains that the Tribunal’s decision was arbitrary or irrational, apparently because the Tribunal had at the hearing accepted that the applicant had answered some questions truthfully, and the Tribunal at that time did not have the Highlights reference letter. However, as pointed out above, the Tribunal did at that time have a similar document from Highlights describing the applicant’s duties (CB 157-158). The Transcript at p.33-36 makes it perfectly clear that the Tribunal was concerned that the applicant’s evidence about her duties at Highlights suggested she was not performing the full range of hair dressing duties there. The Tribunal ultimately preferred the applicant’s oral evidence about her duties to that in the Highlights letter. As reasonable minds could differ about the Tribunal’s reasoning it cannot be said to be illogical or irrational: SZMDS (supra) at [78] per Heydon J; [130]-[131] per Crennan and Bell JJ; SZOOR v Minister for Immigration and Citizenship & Anor (2012) 202 FCR 1 at [15] per Rares J; [85] per McKerracher J.
Consideration
Ground 1
Ground 1 (iii) was advanced by Mr Dobbie, appearing for the applicant, on the basis that it was not possible in the circumstances for the Tribunal to find that the Highlights reference letter given to TRA was false or misleading in a material particular because at the time it was given to TRA, it was not validly specified as an assessing authority.
Mr Dobbie argues that the Tribunal misapplied the law in relation to the PIC 4020(5) in what he describes as the Batra FCA line. This line of authority is discussed below.
The Tribunal addressed the issue of TRA being an approved assessing authority in its Findings and Reasons at [116]-[117] of the Decision Record where it stated:
116. In reaching this conclusion, the Tribunal has had regard to the fact that TRA had not been approved as a relevant assessing authority at the time the information was provided to TRA and at that time TRA provided the skills assessment and the judgments in Singh v MIAC [2012] FMCA 145, Zhang v MIAC [2012] FMCA 1011 and Singh v MIAC [2012] FMCA 1101.
117. In considering whether the letter from Highlights Hair and Makeup Salon contains information that is false or misleading in a material particular, the Tribunal must be satisfied that the information is “of moment or of significance, not merely trivial or inconsequential” and “relevant to the purpose for which it is made.” (MILGEA v Dela Cruz (1992) 34 FCR 348 at 352).
(CB 201)
The issue of TRA not being approved for skills assessment for the purposes of a visa application was raised in the decision of his Honour Driver FM (as he was then) in Singh v Minister for Immigration & Anor [2012] FMCA 145 (24 April 2012). The argument advanced on behalf of Mr Singh was set out in the judgment at [8]-[16], where his Honour stated:
8. There are two bases for the findings and reasons given by the Tribunal in its decision to affirm the decision not to grant Mr Singh a subclass 485 visa.
9. First, the Tribunal found that information provided by Mr Singh in his subclass 485 visa application form about his employment as a cook was incorrect. This Mr Singh conceded. Accordingly, the Tribunal found, on this basis alone, that there was evidence that the applicant had given, or caused to be given, to the Minister, an officer, and the Tribunal, information that was false or misleading in a material particular in relation to the application for the visa (“Finding 1”).
10. Secondly, the Tribunal concluded that Mr Singh had not been employed at two restaurants, namely Indioz Café and New Bombay Fusion, at which he had claimed to have worked as a cook. Consequently, the Tribunal found the information relating to the claimed employment to be false or misleading in a material particular. Accordingly, the Tribunal concluded there was evidence that Mr Singh had given, or caused to be given, to the Minister, an officer, the Tribunal and a relevant assessing authority, information that was false or misleading in a material particular in relation to the application for the visa (“Finding 2”).
The present application
11. These proceedings began with a show cause application filed on 20 September 2011. The applicant now relies upon an amended application filed in court by leave on 1 March 2012. There are two grounds in that application:
1. The Tribunal erred in concluding that Trade Recognition Australia is the relevant assessing authority for the occupation of Cook.
Particulars
(a) There is no evidence that Trade Recognition Australia or any other person or body has been approved in writing by the Education Minister or the Employment Minister for the purpose of reg. 2.26B(1A), to be the relevant assessing authority for the occupation of Cook.
(b) The Tribunal erred in determining that instrument IMMI 11/068 for the purpose of reg. 2.26B(1), relevantly specifying Trade Recognition Australia to be the relevant assessing authority for the occupation of Cook, is valid.
(c) Without a validly approved and specified (reg. 2.26B(1) and (1A)) relevant assessing authority for the occupation of Cook, cl. 880.230(1) is not capable of being met by the Applicant. Thus in the circumstances, cl. 880.230(1) is not applicable to this application.
12. The Tribunal erred in law in finding the Applicant did not meet Public Interest Criterion (PIC) 4020(1) in Schedule 4 to the Migration Regulations 1994 (Regulations).
Particulars
(a) The Tribunal erred in construing that information given to Trade Recognition Australia were information given to a relevant assessing authority for the purposes of determining whether the applicant [met] PIC 4020(1).
(b) The Tribunal misconstrued or misapplied the definition of “information that is false or misleading in a material particular” as defined in PIC 4020(5). The Tribunal did not consider whether the ‘employment dates’ provided by the Applicant in the application was relevant to any of the criteria the Minister may consider when making a decision on an application (PIC 4020(5)(b)). Thus [the Tribunal] failed to consider, from the outset, whether that information was capable of being information that is false or misleading in a material particular, for the purposes of the applicant’s application.
12. I received as evidence the court book filed on 26 October 2011 and the affidavit of Da Wei David Gu made on 5 December 2011, to which is annexed a transcript of the hearing conducted by the Tribunal on 29 August 2011 as well as other documents. I also received the following exhibits:
Exhibit R1 – Instrument of Approval signed 15 September 2011;
Exhibit R2 – Instrument IMMI 11/068 dated 28 September 2011.
13. Mr Singh contends that the Tribunal failed to consider the jurisdictional basis of subclause 4020(1) in Part 1 of Schedule 4 to the Migration Regulations 1994 (Cth) (“the Regulations”).
14. Mr Singh submits that subclause 4020(1) does not to apply to all information that may be false or misleading. It only applies in specified circumstances.
15. Of particular relevance are the words of limitation “information that is false or misleading in a material particular”. Subclause 4020(5) defines this requirement. It applies to information that is relevant to any of the criteria that the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
16. Mr Singh submits that the phrase “relevant to any of the criteria” does not apply to the criteria of clause 4020 itself. If the contrary was intended, it would render subclause (5) to have no operative effect.
(footnotes omitted)
This argument has been advanced unsuccessfully in a number of cases brought before this Court. In Rafi (supra) (7 November 2012) per Hartnett FM (as she was then), the headnote of her Honour’s reasons stated:
Judicial review of decision of the Migration Review Tribunal – cancellation of Subclass 880 (Skilled – Independent Overseas Student (Residence)) visa – skills assessment undertaken by Trades Recognition Australia – not approved and specified as an assessing body – whether Trades Recognition Australia skills assessment can be relied on as a bogus document – Tribunal finding that if correct information provided by applicant no visa would have been granted – application dismissed.
In Rafi (supra) at [30] Hartnett FM stated:
30. The central premise of each of the grounds relied upon by the applicant is that because the TRA was not a relevant assessing authority, the TRA assessment could not have been material to the decision to grant the visa and therefore was not a bogus document for the purposes of s.103 of the Act. This premise was squarely rejected by Riley FM in Batra v Minister for Immigration and Citizenship [2012] FMCA 544 (at paragraph 48) where the learned Federal Magistrate said;
“I accept absolutely that the TRA skills assessment of the applicant had no legal effect, as a skills assessment. However, that does not mean that the skills assessment should be treated as never having existed, or as never having been sent to an officer or an authorised system.”
Accordingly, I find the applicant’s submissions that the TRA assessment should be treated as a ‘nullity,’ and therefore is incapable of being a ‘bogus document’ for the purpose of ss.97 and 103 of the Act is misconceived. The non-compliance with s.103 of the Act did not depend on whether the TRA was a ‘relevant assessing authority’ under regulation 2.26B of the Regulations, nor on whether the TRA assessment was material to the decision to grant the visa. The only facts necessary to establish non-compliance with s.103 are that the applicant provided to an officer or an authorised system a document that was obtained because of a false or misleading statement.
Mr Reilly acknowledged that the above decisions were considered in the context of a bogus document and argues that the same reasoning applies to whether that document is false or misleading in the material particular.
In Mudiyanselage FMCA (21 September 2012) per Emmett FM (as she was then), the headnote to her Honour’s reasons stated:
Review of decision of Migration Review Tribunal – whether a skills assessment provided by the applicant was a bogus document within the meaning of section 97of the Migration Act 1958 (Cth) or contained information that was false or misleading in a material particular in relation to the applicant’s application for a visa – whether the Minister for Immigration and Citizenship should have waived the requirements of a criterion of the applicant’s visa because of compassionate or compelling circumstances that affect the interests of Australia or compelling and compassionate circumstances that affect the interests of an Australian citizen or Australian permanent resident.
In Emmett FM’s decision in Mudiyanselage FMCA she stated at [20]:
20. At the commencement of the hearing, counsel for the applicant conceded that the First Skills Assessment was based on inaccurate information provided by the applicant to the first respondent. Counsel for the respondent conceded that the TRA was not the approved skills assessment authority for the purposes of the visa criterion at the time of the Tribunal decision because it had not been validly appointed as an assessing authority for the occupation nominated by the applicant. However, that is not relevant to the issue of whether the applicant gave to the Minister a “bogus document” obtained because of a false or misleading statement, whether or not made knowingly, being the First Skills Assessment (see Batra v Minister for Immigration & Anor [2012] FMCA 544 at [50] - [51] per Riley FM).
On appeal, the Mudiyanselage FCA proceedings came before his Honour Tracey J who handed down his judgment on 27 March 2013. The main thrust of the appeal was whether the Emmett FM erred in the construction of certain aspects of the public interest criterion and focused on the consideration of the appropriate construction of the criterion, but the appeal was ultimately dismissed. Tracey J stated in his reasons at [38]-[39]:
38. Having regard to the view which I have formed about the proper construction of PIC4020(1) it is not necessary that I express any concluded opinion about the reasoning in Singh. Although the Minister submitted that Singh was wrongly decided he did not seek to develop submissions in support of that proposition unless I considered that the construction of PIC4020 for which he contended was wrong. Furthermore, Singh was a case relating to information rather than a bogus document and was distinguishable on that basis.
39. Had it been necessary to rule on the issue I would not easily have been persuaded that the failure to approve a relevant assessing authority for the purposes of one criterion would have rendered all of the criteria for a particular visa inoperative or, more particularly, rendered any information supplied to the Minister in support of an application for such a visa immaterial.
In Batra v Minister for Immigration & Anor (2012) 265 FLR 461 (24 June 2012) (“Batra FMCA”) per Riley FM (as she was then), the headnote to her Honour’s reasons stated:
Migration Review Tribunal – cancellation of subclass 885 (Skilled – Residence) visa – skills assessment undertaken by Trades Recognition Australia (“TRA”) – TRA not approved and specified as an assessing body – TRA skills assessment of no effect – whether TRA skills assessment can be relied on as a bogus document for purposes of cancellation.
In Batra FMCA (supra) Riley FM stated at [48]:
48. I accept absolutely that the TRA skills assessment of the applicant had no legal effect, as a skills assessment. However, that does not mean that the skills assessment should be treated as never having existed, or as never having been sent to an officer or an authorised system.
The argument advanced in the matter before this Court by Mr Dobbie relies on a passage of the decision of Batra FCA, a decision of his Honour Murphy J which was an appeal from the decision of Riley FM in Batra FMCA which is referred to above. The headnote in Murphy J’s decision states:
Whether Migration Review Tribunal’s decision affected by jurisdictional error – cancellation of skilled migration visa – subclass 885 visa – criteria relevant to consideration prior to cancellation – bogus document – improperly specified skills assessment authority – whether visa application assessment criteria not applicable.
In argument advanced on behalf of the applicant, Mr Dobbie, relies on the contents of [72] of his Murphy J’s decision in Batra FCA where his honour stated:
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.
It is not in dispute that TRA was not empowered at the relevant time of the Tribunal decision to set any standard for work experience of a particular occupation because TRA was not properly accredited. However, an individual can still give false or misleading information to TRA whether or not it is properly accredited. This was addressed by his Honour Murphy J at [54]-[61] in Batra FCA, where he stated:
54. The appellant submits that, because TRA was not properly specified as an assessing authority under reg 2.26B, the relevant TRA assessment is a nullity and cannot be treated as a “bogus document” for the purpose of s103. He draws upon the provisions of the Act which contain the power under which TRA was to carry out its tasks, and submits that on a proper reading of the Act the lack of power in TRA resulted in there being no skills assessment being made at all.
55. I accept the appellant’s submissions that:
(a) TRA had not properly set a skills standard applicable to the occupation of “Pastry Cook”;
(b) TRA did not properly assess the appellant’s skills against a standard; and
(c) the Skills Assessment was not effective as a skills assessment for the purpose for which it was made by TRA.
However, I do not accept the appellant’s argument that this means that the Skills Assessment is not a “bogus document” within the meaning of s 103.
56. In construing the term “bogus document” I must consider both the context and purpose of ss 97 and 103: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (“Project Blue Sky”) per McHugh, Gummow, Kirby and Hayne JJ at [69]. There is nothing in ss 97(c) and 103, or elsewhere in the Act, to indicate that Parliament intended the word “document” to be given anything other than its ordinary and natural meaning. The Shorter Oxford English Dictionary defines “document” as “evidence” or “proof” and “something written, inscribed, engraved, etc, which provides evidence or information or serves as a record”.
57. The Regulations indicate that those who wish to obtain visas in one of the visa classes available must provide documents of various types to the Minister. Cases involving similar circumstances to those in the present case illustrate that the Minister has previously sought to apply s 103 in relation to incorrect employment testimonials, education attendance records, and award certificates: see McDade v Minister for Immigration and Multicultural Affairs [2000] FCA 528 at [15], VKAW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 25 at [9], Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167 at [10].
58. The use of bogus documents is prohibited by s 103. The evident purpose of the prohibition is the maintenance of an effective migration system whereby classes of visa are given to those who have certain skills or characteristics. The section, considered in the context of other provisions such as ss 100, 101, 102, 104, 105, 107, 108 and 109, promotes honesty, order and reliability within the Australian migration system. Together, the provisions emphasise the importance of honesty and accuracy in an application for a visa.
59. When considered in light of its purpose and context, the correct construction of s 103 is the construction that focuses attention on the substance of any ordinary document as given to “an officer, an authorised system, the Minister, or a tribunal.”
60. The definition of “bogus document” in s 97(c) includes a document that “was obtained because of a false or misleading statement”. In my view it is plain in the present case that the Skills Assessment was obtained because of the false work reference. The Skills Assessment simply picked up the 900 hours of work experience which the appellant falsely claimed to have. That the Skills Assessment is of no legal effect for its specific purpose is immaterial as to whether or not it falls within this definition. I respectfully agree with the learned Federal Magistrate’s observation at [49]:
The fact is that the applicant’s TRA skills assessment was obtained “because of a false or misleading statement”, being the statement that the applicant had 900 hours of work experience with O’Hea’s Bakery & Deli. Consequently, the skills assessment was a bogus document within the meaning of s.97(c) of the Act. The applicant sent his TRA skills assessment to an officer or an authorised system. He thus breached s.103 of the Act and triggered the cancellation provisions.
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.
(emphasis added)
I agree with the submissions made on behalf of the Minister that the above passages do not support the argument advanced on behalf of the applicant in this case, being that, the fact that TRA was not validly specified at the time has some conclusive effect as to whether someone can submit a bogus document or give false or misleading information.
The Tribunal had before it a letter from C. Mercado, the salon proprietor of Highlights (CB 182-183) and in the Tribunal’s Decision Record it made the following observations in respect of that letter at [115]-[116], where it stated:
115. 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 during the period 3 May 2008 to 22 June 2009 as she did not perform the full range of duties of a Hairdresser as claimed. The letter conveys a false or misleading impression of the first named applicant’s capabilities, skills and experience as a hairdresser. 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.
116. In reaching this conclusion, the Tribunal has had regard to the fact that TRA had not been approved as a relevant assessing authority at the time the information was provided to TRA and at the time TRA provided the skills assessment and the judgments in Singh v MIAC [2012] FMCA 145, Zhang v MIAC [2012] FMCA 1011 and Singh v MIAC [2012] FMCA 1101.
117. In considering whether the letter from Highlights Hair and Makeup Salon contains information that is false or misleading in a material particular, the Tribunal must be satisfied that the information is “of moment or of significance, not merely trivial or inconsequential” and “relevant to the purpose for which it is made.” (MILGEA v Dela Cruz (1992) 34 FCR 348 at 352).
(CB 201)
It is submitted on behalf of the Minister that if it is accepted that the contents of the letter was false or misleading because it makes factual claims which are not true concerning the applicant’s work experience at the hairdressing salon, then there is no reason why it cannot be “information that is false or misleading in a material particular” as is defined in PIC 4020. There is no dispute that information must be false or misleading at the time it is given because of the definition in PIC 4020(5). However, if the applicant’s work experience was not in fact as she described it at the time that the document was written, then that document is false or misleading in a material particular. Mr Reilly also argued that whether TRA was validly specified as an assessing authority under Regulation 2.26B is not relevant.
Mr Dobbie informed the Court that he had argued this issue before his Honour Judge Driver in Kaur FCCA (23 August 2013). The issue which he identified as the Batra FCA point and acknowledged that he was unsuccessful, however, Mr Dobbie submits that his Honour was not correct in his decision and should not be followed. The facts in the matter before his Honour Judge Driver are strikingly similar to the matters currently being argued in the matter before this Court. In Kaur FCCA Driver FM stated at [3]-[5]:
3…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) for the skilled occupation of “hairdresser”.
4. 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.
5. The work reference confirmed that Ms Kaur worked as an assistant hairdresser for more than 1046 hours. It also confirmed various skills and techniques that she could demonstrate independently.
(footnotes omitted)
His Honour Judge Driver indicated that the matter was before the Tribunal on 7 August 2012 and he recorded the observations of the Tribunal in his decision in Kaur FCCA at [17]-[21] where he stated:
17. The issue for the Tribunal was whether Ms Kaur met PIC 4020.
18. The Tribunal found that TRA was a relevant assessing authority for the purposes of this criterion 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. The critical question, then, was whether that information was false or misleading in a material particular.
…
20. The Tribunal found that the:
...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.
21. The Tribunal therefore concluded that Ms Kaur was caught by PIC 4020(1). 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.
(footnotes omitted)
The arguments advanced by Mr Dobbie in Kaur FCCA before Judge Driver were recorded at [26]-[29] of Judge Driver’s reasons where he stated:
26. The applicants’ submissions address Ground 1(iii) first. In Ankit Batra v Minister for Immigration (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.
27. 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.
28. Justice Murphy, sitting in the appellate jurisdiction of the Federal Court, stated at [72] 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.
29. 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.
(footnotes omitted)
The submissions made on behalf of the Minister in Kaur FCCA before Judge Driver in respect of the equivalent ground (being Ground 1(iii)), were recorded at [40]-[44] of his Honour’s reasons where he stated:
40. 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.
41. 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. Regulation 2.26B provides:
(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.
42. 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). 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. 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.
44. 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.
(footnotes omitted)
In Judge Driver’s decision in Kaur FCCA under the heading Resolution, his Honour stated at [68]-[72]:
68. 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.
69. In its decision at [114]-[117] 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).
70. 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”.
71. 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.
72. It follows that I reject Ground 1(iii).
(footnotes omitted)
Judge Driver’s decision in Kaur FCCA was appealed in the Federal Court before Wigney J; Kaur v Minister for Immigration and Border Protection [2014] FCA 281 (“Kaur FCA”) which was handed down on 27 March 2014. His Honour dismissed the appeal, and stated at [6-[8]:
6. Ms Kaur’s appeal turns to an extent on the proper construction of criterion 4020. That question of construction largely relates to timing issues that assume importance given the particular facts of Ms Kaur’s case. Criterion 4020 concerns the giving of information that is false or misleading in a material particular to, inter alia, a “relevant assessing authority”. At the time Ms Kaur provided the work reference to TRA, TRA was not a “relevant assessing authority” for the purposes of the Migration Regulations 1994 (Migration Regulations). By the time the delegate and the Tribunal made their decisions it was. The question is whether that matters in determining whether, for the purposes of criterion 4020, there was evidence at the time of the decision that Ms Kaur gave a relevant assessing authority information that was false or misleading in a material particular in relation to her visa application.
7. Both the Tribunal and the primary judge effectively resolved that issue against Ms Kaur and concluded that because TRA was a relevant assessing authority at the time of the Tribunal’s decision, the false information in the work reference was material to her visa application. It did not matter that TRA was not a relevant assessing authority at the time Ms Kaur gave it the information.
8. For the reasons that follow, neither the Tribunal nor the primary judge erred in so finding. Accordingly, Ms Kaur’s appeal must be dismissed.
In resolving the matter, his Honour Wigney J made the following observations in Kaur FCA at [36]-[51]:
36. Ultimately the key question for resolution in this appeal is whether, on the facts as found by the Tribunal, it was open to the Tribunal to find (as it did) that Ms Kaur did not satisfy criterion 4020 (and therefore did not satisfy clause 485.224). The parties contend that the answer to this question turns solely on the construction of criterion 4020 and, in particular, paragraph (5) of criterion 4020. Ms Kaur contends that the proper construction of paragraph (5) is that the question whether certain information is false or misleading in a material particular is to be tested at the time the information is given. If that is right, Ms Kaur submits, in effect, that the information here could not have been false or misleading in a material particular because it could not have been relevant to any of the visa criteria. That is because TRA was not a relevant assessing authority at the time the information was given to it by Ms Kaur.
37. The Minister contends that the materiality element which is in subparagraph (5)(b) of criterion 4020 is to be addressed at the time of the Minister’s decision. If that is right, the Minister says that the information was relevant to clause 485.221 because by the time the Minister made his decision TRA was a relevant assessing authority.
38. In my opinion, however, Ms Kaur’s appeal must fail whichever is the correct construction of criterion 4020. On any view of criterion 4020 it was open to the Tribunal to find that Ms Kaur had failed to satisfy criterion 4020, that being a criterion to be satisfied at the time of decision.
39. The Tribunal found that the information in the work reference was false or misleading. Ms Kaur does not challenge that factual finding in this appeal. Even if the materiality element (whether the information was false or misleading in a material respect) is required to be strictly addressed at the time Ms Kaur gave the work reference to TRA, it was open to the Tribunal to conclude that the information in the work reference was relevant to a criterion that the Minister may consider when he came to decide Ms Kaur’s visa application. That criterion was clause 485.221.
40. Ms Kaur does not dispute that she gave the work reference to TRA so she could obtain a skills assessment from it, believing at the time that TRA was a relevant assessing authority. She did this so that, when the Minister came to decide her visa application, she would meet clause 485.221, a criterion Ms Kaur was required to satisfy at the time of the decision. In these circumstances, it is open to conclude that at the time she gave the relevant false or misleading information to TRA, it was relevant to clause 485.221. It was relevant because in considering whether to grant the visa, the Minister would have had to consider whether the skills assessment was such that Ms Kaur satisfied clause 485.221. It is immaterial that, unbeknownst to anyone at the time, TRA had not been validly specified as a relevant assessing authority and that, as a result, clause 485.221 could not in fact have been satisfied by the TRA skills assessment at that time.
41. It follows that it was open to the Tribunal to conclude that the information in the work reference was false or misleading in a material particular, as defined in paragraph (5) of criterion 4020, however that paragraph is construed.
42. In any event, criterion 4020 should not be construed in the narrow and restrictive way contended by Ms Kaur. Information can be false or misleading in a material particular within the meaning of criterion 4020 even if its relevance to criteria the Minister may consider when making a decision on the application only arises or becomes apparent when the Minister makes the decision. There is no requirement that the relevance and materiality of the information to the criteria must be tested at the time the information is given by the visa applicant and at no later time. Rather, relevance and materiality may be considered at any time up to the time the Minister makes his decision. This construction of criterion 4020 is supported by the text of criterion 4020, as well as the subject matter, scope and purpose of the relevant provisions: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28;(1998) 194 CLR 355 at [69]; Cooper Brookes (Wollongong) v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 320.
43. The expression “false or misleading in a material particular” appears in many statutes. Its meaning has been considered by this Court in the context of other provisions of the Act, albeit provisions which do not contain a definition like paragraph (5) of criterion 4020. In Dela Cruz, this Court considered the meaning of the expression in the context of section 20 of the Act, which at that time provided that a person who made a statement to an immigration officer that was false or misleading in a material particular was an illegal entrant. In relation to the meaning of the expression “false or misleading in a material particular” the Court said (at 352):
The expression “false in a material particular” appears in many statutes, both in this country and overseas. It has been discussed in R v Lord Kylsant [1932] 1 KB 442; Murphy v Griffiths [1967] 1 WLR 333; [1967] 1 All ER 424; R v Mallett [1978] 1 WLR 820; R v M [1980] 2 NSWLR 195; R v Brott [1988] VicRp 1; [1988] VR 1.In the last mentioned case, Brooking J pointed out that the concept is well understood. As his Honour said (at 11): “an assertion that a document is false is to be taken as an assertion that is [sic] is false in a material particular.” The term “material” requires no more and no less than that; the false particular must be of moment or of significance, not merely trivial or inconsequential.
Section 20(1) does not apply to statements that are merely false or misleading; there is the added requirement that the statement must be false or misleading in a material particular. In the context of s 20(1), a statement will be false or misleading in a material particular if it is relevant to the purpose for which it is made: see Jovcevski v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, Lockhart J, 12 October 1989). A statement will be relevant to that purpose if it may - not only if it must or if it will - be taken into account in making a decision under the Act as to the grant of the visa or entry permit in respect of which the statement is made.44. The text of paragraph (5) of criterion 4020 is not dissimilar to the meaning given to the relevant expression in Dela Cruz. Nothing in Dela Cruz suggests that the question of whether a false statement “may be taken into account in making a decision under the Act” is only to be tested having regard to the circumstances that existed at the time the statement was made.
45. The text of paragraph (5) of criterion 4020 tends to suggest that the question of materiality, which turns on the relevance of the information to any visa criteria, is not tied to any particular time. Paragraph (5) effectively divides the expression “false or misleading in a material particular” into two elements. The first element, addressed in subparagraph (5)(a), is whether the information is false or misleading. It is clear from the express terms of subparagraph (5)(a) that this element must be addressed at the time the information is given. The second element, addressed in subparagraph (5)(b), relates to the materiality of the information. The only requirement in subparagraph (5)(b) is that the information is “relevant to any of the criteria the Minister may consider when making a decision on the application, whether or not the decision is made because of that information.” Unlike subparagraph (5)(a) there is no express statement in subparagraph (5)(b) that the question of relevance must be tested or addressed at any particular time. The division of the definition of the expression into two elements, one expressly tied to a particular time and the other, the materiality element, not tied to a particular time, suggests that the materiality element can be addressed or tested at any time up to and including the time the Minister makes his decision.
46. This interpretation of the text of the criterion 4020 is also supported by the context and apparent purposes of criterion 4020. The most significant contextual consideration is that criterion 4020 is a criterion to be satisfied at the time of the Minister’s decision. Given that compliance with criterion 4020 is to be considered at the time of decision, it would be odd if the Minister was constrained to consider the circumstances as they existed at some earlier time. Here, it would be a strange result if the Minister was constrained to consider the materiality of the false information having regard to the circumstances as they existed at the time the information was given.
47. The apparent statutory purpose of criterion 4020 also supports a broad construction, not a construction restricting consideration of the relevance of the false or misleading information to a particular time. Criterion 4020 is one of a number of criteria in Schedule 4 of the Regulations that permit the Minister to grant or refuse visas having regard to considerations of the public interest. In relation to criterion 4020, it is obviously considered to be in the public interest for the Minister to be able to refuse a visa if there is evidence that the applicant has furnished false or misleading information that is relevant to a criterion for the visa. That is not just because applicants should be dissuaded from providing false information. It is also because visa decisions should be made on the basis of truthful and accurate information. In this case, for example, in broad terms a criterion for the grant of a skilled graduate visa is that the applicant does in fact possess the requisite skills. It is obviously in the public interest for the Minister to refuse such a visa if it appears, at the time of decision, that information relevant to the criterion that is intended to ensure that the applicant has those skills (clause 485.221) is false or misleading. That statutory purpose would be stymied, and certainly not advanced, if the Minister could only consider whether the information was relevant in that sense at time that it was provided by the visa applicant.
48. Contrary to Ms Kaur’s submissions, there is nothing in the text, context or legislative history to suggest that the purpose of criterion 4020 is to prevent a visa applicant who has provided false or misleading information from later withdrawing or disavowing reliance on the information. In any event, if materiality can be tested at any time up to the point of decision, an applicant who tries to withdraw or not rely on false information could still be found to have failed to satisfy criterion 4020. Nor is there any indication of a legislative intention to impose a temporal limitation to protect a visa applicant from the situation where false information provided by the applicant only becomes relevant to a visa criterion as a result of a change in the law after the information is provided. The apparent purpose of criterion 4020 is to allow for refusal even in such a situation. It is not in the public interest for a visa to be granted in circumstances where information provided by an applicant is found to be false or misleading at the time of decision.
49. Ms Kaur’s reliance on Batra is also misconceived. No finding in Batra assists her case. The observations by Murphy J that TRA did not have the power to set a precondition for a skills assessment because it was not a relevant assessing authority at the time were plainly obiter. More significantly, the facts and circumstances in Batra were different to the facts and circumstances here. First, the anomaly concerning TRA’s specification as a relevant assessing authority had not been rectified by the time of the decision of the Tribunal in Batra. Second, the issue in Batra was whether a TRA skills assessment was a bogus document for the purposes of criterion 4020. Murphy J accepted, on the facts, that the TRA assessment was not an effective skills assessment because TRA was not a relevant assessing authority. His Honour nevertheless found that it was a bogus document. Here, Ms Kaur never submitted that the TRA assessment was a nullity and there is no issue about whether it is a bogus document. By the time of the Tribunal’s decision, TRA was a relevant assessing authority for the purposes of Ms Kaur’s visa application.
50. On the proper construction of criterion 4020, it was open to the Tribunal to find that, on the facts as found, Ms Kaur did not satisfy that criterion (and therefore did not satisfy clause 485.224). At the time the Tribunal made its decision, the false or misleading information in the work reference was relevant to a criterion for the grant of a visa to Ms Kaur, namely clause 485.221. It was relevant to that criterion because it provided the basis for the skills assessment that the Minister was required to consider in deciding if the criterion was satisfied. That was the case even though TRA was not a relevant assessment authority at the time Ms Kaur provided the information to it. The information was therefore false or misleading in a material particular within the meaning of criterion 4020. Accordingly, it was open to conclude that Ms Kaur did not satisfy criterion 4020. The primary judge was correct to reject Ms Kaur’s contention to the contrary.
51. Ms Kaur’s appeal must therefore be dismissed with costs.
In light of the outcome of the appeal decision before his Honour Wigney J, the argument being advanced in this matter by Mr Dobbie cannot be sustained.
More recently, the Full Federal Court in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 (4 April 2014) per Allsop CJ, Buchanan and Rangiah JJ handed down a decision addressing the issue of revision of information that is false or misleading in a material particular, whether the information must be provided knowingly in respect of PIC 4020. In the reasons of Buchanan J (with whom Allsop CJ and Rangiah J agreed) his Honour set out at [19] the background to the proceeding in the Federal Circuit Court as follows:
19. The appellants then applied to the Federal Magistrates Court of Australia (“the FMCA”) – now the Federal Circuit Court of Australia (“the FCCA”) – for judicial review of the decision of the MRT. The central issue agitated before the FCCA was the contention that PIC 4020 only applied if the first appellant intended to mislead the Minister’s Department. That contention was rejected by the FCCA. On 17 July 2013 the application was dismissed (Trivedi & Ors v Minister for Immigration, Multicultural Affairs & Citizenship & Anor [2013] FCCA 578). It is against that judgment and orders that the present appeal has been brought.
The issues on appeal, which are set out at [21] of Buchanan J’s reasons, were:
The issues on the appeal
21. Two questions were argued on the present appeal. The appellants argued that it was necessary that the first appellant be knowingly involved in the giving of false information for PIC 4020 to apply. I would not accept that contention. Conversely, the respondent argued first that no element of knowledge by a visa applicant was necessary, and secondly that information did not need to be purposely untrue for PIC 4020 to apply, because PIC 4020 was directed to any incorrect information that was relevant to a visa criterion. I would accept the first of those arguments but not the second.
These issues are further described at [50] in Trivedi (supra), where Buchanan J stated:
50. There was no doubt in the present case (and in Vyas) that the IELTS test result form provided by the first appellant contained false information. It was clearly open to the MRT, on the other facts found by it, to conclude that it was bogus. It was a counterfeit. It was not the real thing. The fact that a formal declaration to that effect was not made in the present case does not alter the character of the document, or the information it contained. It was also open to the MRT to find, as it did, that the information thereby given by the first appellant was false or misleading in a material particular. It was not necessary to prove that the first appellant knew the contents of the document were false or misleading when she proffered it.
His Honour then set out the grounds of the appeal at [51]-[52] where he stated:
51. The grounds of appeal relied upon by the appellants are as follows:
Grounds of appeal
1. The Federal Circuit Court erred in failing to find that the decision of the Migration Review Tribunal dated 30 November 2012 was affected by jurisdictional error by reason that the Tribunal failed to determine whether the first appellant knowingly provided false or misleading information in relation to her visa application.
2. The Federal Circuit Court erred in failing to find that the decision of the Migration Review Tribunal dated 30 November 2012 was affected by jurisdictional error by reason that the Tribunal asked itself the wrong question and/or failed to consider a relevant matter by finding that PIC 4020(1) was satisfied whether or not the first appellant knowingly provided false or misleading information in relation to her visa application.
52. As to Ground 1 of the appeal, for the reasons I have given, it was not necessary for the MRT to find that the first appellant knowingly provided false information, or to determine whether she knew or did not know that the information was false when she gave it.
53. As to Ground 2 of the appeal, in my respectful view the FCCA was correct to conclude that no mental element on the part of a visa applicant is required to engage PIC 4020. The information provided by the first appellant to the Minister’s Department was misleading and false. That information was provided both in the body of the application and in the form of the document which falsely stated the IELTS scores.
It should be noted that cl.485.224 is a “timely decision” criterion, so the relevant date for determining whether cl.485.224 is applicable to the applicant in this matter is that of the Tribunal decision made on 10 December 2012. Prior to that decision, TRA had been validly specified as a relevant assessing authority for the purposes of reg.2.26B in relation to persons (such as the applicant) who applied for a visa before 1 July 2010 by legislative instrument IMMI 11/068. This has been stated in a number of decisions referred to above, particularly Singh v Minister for Immigration & Anor [2012] FMCA 145 (see [50] above; see also [40] and [69] of that decision).
Similarly, in Zhang (supra) per Barnes FM (as she was then) at [15], her Honour stated:
15. The Tribunal found that the relevant instrument specifying an assessing authority for the purposes of reg.2.26B was that in force at the time of decision. As the applicant had applied for this visa before 1 July 2010, that instrument was said to be IMMI 11/068. Under IMMI 11/068 the relevant assessing authority for the nominated skilled occupation of Cook was specified as TRA.
The Tribunal, in its Decision Record, identifies the above cases at [116] (CB 102 extracted at [49] above). This was relied upon in Kaur FCCA at [71] where it was found that because TRA was validly specified as an assessing authority at the time of that Tribunal decision, false representations were material both within PIC 4020(1) and TRA assessment.
For the above reasons, I am satisfied that Ground 1(iii) cannot be sustained and should be dismissed.
Ground 2
It is acknowledged by the parties and there is no dispute that the 19 October 2009 reference letter was not before the Tribunal at the time of the hearing held on 16 August 2012 (CB 182-183). This is clearly stated in the Claims and Evidence section of the Decision Record at [95] as follows:
95. On 30 November 2012, the Tribunal received a letter from the applicants’ migration agent enclosing a copy of a letter dated 19 October 2009 from Highlights Hair and Makeup Salon provided by the first named applicant to Trade Recognition Australia in support of her application for a skills assessment.
(CB 198)
Mr Reilly, in his submissions, draws the Court’s attention to the existence of another letter, the Reference Letter, certifying that the applicant, Gurpreet Kaur, was employed by Highlights from 3 May 2008 to 22 June 2008 as a volunteer hairdresser (CB 157-158). The Reference Letter was not in identical terms to the 19 October 2009 letter. The opening paragraphs of the Reference Letter make the following statements:
This is to certify that Gurpreet Kaur has been employed by Highlights salon from May 03, 2008 up to June 22, 2008 volunteer Hairdresser With her Volunteer with us I am happy to supply this reference for the MRT case number 1110452.
She has worked 20 hours a week whilst she was studying. But she worked more than 20 hours during her college holidays. To date she has worked more than 900 hours of work experience.
She has worked in all different areas of the salon showing great skill and knowledge in various areas. She has proven herself to a competent hairdresser. She understands and follows instructions well and uses all the equipment in the salon in a correct and safe professional manner.
(CB 157)
This is followed in the Reference Letter by a list of duties and responsibilities purported to have been undertaken by the applicant on handling clients that appear to contain a number of tasks which do not directly involve the skill of hairdressing, but rather, a range of duties that are more relevant to the clerical and maintenance duties within a salon and could be undertaken by someone not seeking to train for hairdressing skills or ability.
This submission is advanced on behalf of the Minister to counter the applicant’s claim that the Tribunal was not in the position to question the applicant about the nature of her duties, responsibilities and experience when it was not it the possession of the 19 October 2009 letter (CB 182-183), which was not provided to the Tribunal until 30 November 2012, being approximately three and a half months after the Tribunal hearing.
The argument advanced on behalf of the Minister was that the Tribunal did have in its possession the information contained in the letter dated 13 July 2012 and the applicant’s own oral evidence, given during the hearing on 16 August 2012 and this is recorded in the Claims and Evidence section of the Decision Record at [35]-[65] (CB 192-195). Further, the argument is that the Tribunal had an adequate opportunity to question the applicant on the nature and range of the duties that were claimed that she had undertaken. The Tribunal had the opportunity to hold another hearing after the receipt of the 19 October 2009 correspondence, but it did not, probably on the basis that it had formed its view, having had regard to the applicant’s oral evidence in relation to her duties and experience which was not consistent with the description provided in the 19 October 2009 letter.
The claim that the Tribunal did not give “proper regard” to the original Highlights letter in the applicant’s oral evidence, may be seen as a suggestion that the Tribunal came to a wrong finding of fact that the Highlights letter of 19 October 2009 contained information that was false or misleading. However, there is no error of law in a Tribunal making a wrong finding of fact. In Waterford (supra) at 77 Brennan J stated:
There is no error of law simply in making a wrong finding of fact. Therefore an appellant cannot supplement the record by adducing fresh evidence merely in order to demonstrate an error of fact.
In Australian Heritage Commission v Mount Isa Mines Ltd (supra) at 303 their Honours Dawson, Gaudron, McHugh, Gummow and Kirby JJ stated:
There is no reviewable error simply in making a wrong finding of fact (see Waterford v Commonwealth of Australia [1987] HCA 25 at 77; Australian Broadcasting Tribunal v Bond [1990] HCA 33 at 356).
In Abebe (supra) at [137] Gummow and Hayne JJ stated:
The issues at stake in this litigation involve more than what might be seen as technical questions respecting federal jurisdiction. We turn to explain why this is so. The Constitution, as Dixon J put it in Australian Communist Party v The Commonwealth, is an instrument framed on the assumption of the rule of law. In the conduct of government under the Constitution, this means at least that, while there is no error of law simply in making a wrong finding of fact, (a) “[i]t is, emphatically, the province and duty of the judicial department, to say what the law is” the terms used by Marshall CJ in Marbury v Madison, and (b) to adopt remarks of Isaacs J in R v Macfarlane; Ex parte O'Flanagan and O'Kelly, every person “is entitled to his personal liberty except so far as that is abridged by a due administration of the law.”
(footnotes removed)
Nor is it the role of this Court to review the merits of the Tribunal decision: Wu Shan Liang (supra) at 272; Eshetu (supra) at [55]-[57], where Gleeson CJ and McHugh J stated:
55. These may or may not be valid criticisms of the Tribunal. The Tribunal concentrated its attention on Mr Eshetu's explanation of his fears. Having rejected that explanation, it did not embark upon a search for some alternative explanation which he did not advance. Once again, different minds could form different views about the reasonableness of that approach. However, it involves no error of law. The ultimate question was whether the Tribunal was satisfied about something. The approach adopted by the Tribunal does not manifest a legally erroneous view as to what it was about which it needed to be satisfied. For the Tribunal to conclude that, although it was satisfied that Mr Eshetu feared persecution, an examination of the reasons he advanced as to why he held that fear failed to satisfy the Tribunal that the fear was well-founded, does not reflect any misunderstanding as to the meaning of the concept of a well-founded fear.
56. No error of law was shown. What emerged was nothing more than a number of reasons for disagreeing with the Tribunal's views of the merits of the case. The merits were for the Tribunal to determine, not for the Federal Court.
Conclusion
57. appeal should be allowed. The order made by the Full Court of the Federal Court should be set aside, and the orders of Hill J restored. The application under s 75(v) of the Constitution should be dismissed. Mr Eshetumust pay the Minister's costs of the appeal to the Full Court of the Federal Court and to this Court, and of the application under s 75(v).
Further, jurisdictional error does not occur simply because the Tribunal gives what is alleged to be insufficient weight to some of the evidence before it: Minister for Immigration and Citizenship v MZYHS (supra) per Kenny J at [36]-[43]. At [43] of that decision, her Honour stated:
43. Here, in so far as the first respondent’s “proper, genuine and realistic consideration” argument invited a second-guessing of the merits of the Tribunal’s decision, it must be rejected on the basis that judicial review of administrative decisions does not permit merits review. In so far as this argument encompassed an accepted ground of failure to take into account a relevant consideration, it must be rejected for the reasons already stated. The recent decision of the High Court in SZJSS apparently rules out any other basis for review of the Tribunal’s decision in this case.
Mr Dobbie, in his oral submissions, acknowledged that it may be inferred that the pleadings in this ground were not intended to transgress into a merits review, however, I have formed the view on the basis of the authorities above, that this ground cannot be sustained and should be dismissed.
Ground 3
Mr Dobbie informed the Court that the gravamen of the complaint in Ground 3 is that when there is a hearing and oral evidence is given, the Tribunal is permitted under s.359 of the Migration Act to obtain evidence or information in the way it feels fit and that this can include oral evidence. It is submitted that if the Tribunal elects to follow this course it has to have regard to that evidence. Section 359(1) of the Migration Act states:
Tribunal may seek information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
Written and oral evidence was given at the hearing. Mr Dobbie referred the Court to the Transcript attached to the Devine Affidavit to advance an argument that the Tribunal failed to give genuine and realistic consideration to the oral evidence. The relevant material commences at Question 220 and is extracted at [28] above.
It is a factual issue as to whether the applicant’s descriptions of her duties at Highlights actually correspond to the contents of the 19 October 2012 letter (CB 182-183). It is not in dispute that the applicant did not claim in her oral evidence to do all the things contained in the 19 October 2012 letter. Mr Dobbie contends that she was not specifically asked if she did all of the duties mentioned, but that it would not be necessary for the Tribunal to adopt that approach as it does not have the role of a contradictor: Abebe (supra) per Gummow and Hayne JJ at [187].
The principal obligation of the Tribunal to make inquiries is imposed by s.348 of the Migration Act and that the Tribunal must “review” the decision which is the subject of the application before it. That is the duty to inquire into the existence or non-existence of facts relevant to the Tribunal determining whether to affirm or set aside the decision under review. It is noted by the majority in Minister for Immigration and Citizenship v SZIAI & Anor (2009) 111 ALD 15, however, the extent to which the Tribunal is required to inquire before it can be said that the Tribunal has properly reviewed the decision is qualified. At [18] of SZIAI(supra) their Honours French CJ, Gummow Hayne, Crennan, Kiefel and Bell JJ stated:
18. It has been said in this Court on more than one occasion that proceedings before the Tribunal are inquisitorial, rather than adversarial in their general character. There is no joinder of issues as understood between parties to adversarial litigation. The word "inquisitorial" has been used to indicate that the Tribunal, which can exerciseall the powers and discretions of the primary decision-maker, is not itself a contradictor to the cause of the applicant for review. Nor does the primary decision-maker appear before the Tribunal as a contradictor. The relevant ordinary meaning of "inquisitorial" is "having or exercising the function of an inquisitor", that is to say "one whose official duty it is to inquire, examine or investigate". As applied to the Tribunal "inquisitorial" does not carry that full ordinary meaning. It merely delimits the nature of the Tribunal's functions. They are to be found in the provisions of the Migration Act. The core function, in the words of s 414 of the Act, is to "review the decision" which is the subject of a valid application made to the Tribunal under s 412 of the Act.
(footnotes omitted)
These limits on the Tribunal’s obligation to inquire flow from cases that have held that, although the Tribunal reviews decision by making inquiries, it is for the applicant to satisfy the Tribunal that the criteria for the granting of the relevant visa are met. This feature of the nature of the review the Migration Act requires that the Tribunal carry out has been stated in the different ways in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [40]; Abebe (supra) per Gummow and Hayne JJ at 576; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 per Kirby J at [78] where he stated:
78. … The function of the Tribunal… is to respond to the case that the applicant advances.
It is noted that these decisions predominately arise in Refugee Review Tribunal decisions concerning Protection visa applications.
There are circumstances may arise where the Tribunal may constructively fail to review the decision because it failed to make inquiries. By way of example, the Tribunal, after inviting the applicant to a hearing to present evidence, may not have questioned the applicant or may have done so in such a perfunctory manner that the inference arises that the Tribunal did not undertake the review they were required to undertake. In the matter before this Court the claim that is being advanced on behalf of the applicant is that the Tribunal failed to make inquiries of the applicant about an essential element of the applicant’s claim. Subsequently, from that failure it could be inferred that the Tribunal failed to properly consider the applicant’s claim or assess the applicant’s claim on a mistaken view of what the Migration Act required the Tribunal to consider when reviewing the decision in question.
On the material before the Court, it is difficult to accept the argument that the Tribunal failed to carry out its role to inquire. There is a detailed transcript of the Tribunal hearing with the relevant parts having been referred to by Mr Dobbie in his oral submissions (been reproduced above). I am not satisfied that this ground of review can be sustained and should be dismissed.
Conclusion
I am satisfied that the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of the review. Accordingly, the proceedings should be dismissed with costs awarded to the Minister.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 23 September 2014
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