KAUR v Minister for Immigration
[2020] FCCA 221
•6 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 221 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) visa – Matter remitted by consent to the Tribunal in 2015 – Applicants were invited to provide information to the Tribunal pursuant to section 359A of the Migration Act 1958 – Applicants did not provide information or respond within time – Applicants lost entitlement to appear before the Tribunal for a Hearing – whether the Tribunal fell into jurisdictional error on the basis that it failed to act on correct principle in that it thought it had no power to conduct a hearing whatsoever of any kind – ground of review not made out – application dismissed. |
| Legislation: Migration Act 1958, ss.359A, 359C, 360, 363, 363A |
| Cases cited: Hasran v Minister for Immigration and Citizenship and Another [2010] FCAFC 40 |
| First Applicant: | SUTANTAR KAUR |
| Second Applicant: | KUDEEP SINGH |
| Third Applicant: | SHABAD SINGH |
| Fourth Applicant: | SUKOON SUKOON |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number | MLG 1233 of 2017 |
| Judgment of: | Judge Blake |
| Hearing date: | 3 December 2019 |
| Date of Last Submission: | 3 December 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 6 February 2020 |
REPRESENTATION
| Counsel for the Applicants: | Mr Aleksov |
| Solicitors for the Applicants: | Carina Ford Immigration Lawyers |
| Counsel for the Respondents: | Mr Grant |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
Pursuant to r.11.11(1) of the Federal Circuit Court Rules 2001 (“the Rules”), the first applicant be appointed as litigation guardian for the third and fourth applicants.
Pursuant to r.1.06 of the Rules, the requirement in r.11.11(2) of the Rules for the filing of an affidavit of consent be dispensed with.
The Application filed on 13 June 2017 and amended on 6 November 2019 be dismissed.
The Applicants pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.
NOTATION
The Court notes that the Administrative Appeals Tribunal had no power to conduct a review in relation to the Third Applicant, however he retains a sufficient interest to remain a party to this proceeding.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1233 of 2017
| SUTANTAR KAUR |
First Applicant
| KUDEEP SINGH |
Second Applicant
| SHABAD SINGH |
Third Applicant
| SUKOON SUKOON |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 29 May 2017. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicants Skilled (Provisional) (Class VC) visas (‘visas’).
For the reasons that follow, I have decided to dismiss the application for review.
Background
The background to the present proceedings are set out in the Minister’s written submissions dated 19 November 2019. The Applicants did not take any issue with the background as summarised in the Minister’s written submissions. I set it out below:
‘5. On 10 June 2010, the First Applicant (the Applicant) applied for the Visa. The Second and Fourth Applicants were included in the Visa application as members of the Applicant’s family unit. In support of the Visa application, the Applicant provided a skills assessment from Trades Recognition Australia (TRA) for the occupation of “Pastry Cook” (the skills assessment).
6. On 4 May 2012, the delegate refused to grant the Applicant the Visa. The delegate found that the Applicant had obtained the skills assessment from TRA by supplying false or misleading information, with the result that the skills assessment was a bogus document as (then) defined by s 97(c) of the Act. The delegate found that the skills assessment was submitted in support of the Visa application, with the result that the Applicant did not meet Public Interest Criterion 4020(1) (PIC 4020), and did not satisfy the primary criterion for the grant of the Visa at cl 487.228 of Schedule Two of the Migration Regulations 1994 (the Regulations).
7. On 16 May 2012, the First, Second and Fourth Applicants applied to the (then) Migration Review Tribunal (the MRT) for review of the delegate’s decision.
8. On 25 June 2014, the MRT invited the Applicants to comment, pursuant to s 359A of the Act, on information that a Mr [A] had pleaded guilty to manufacturing and selling fraudulent work references similar to the Applicant’s. The Applicants were advised that the information was relevant to whether the Applicant had given, or caused to be given, a bogus document to the Minister in relation to her Visa application, for the purposes of PIC 4020. On 7 July 2014, the Applicants responded, advising that the Applicant had in fact completed the work experience at Pastry Art Design claimed in the work reference she submitted to obtain her skills assessment.
9. The Applicant attended a hearing before the MRT on 7 January 2015, and gave evidence and presented arguments with the assistance of her registered migration agent. The Tribunal also took oral evidence from a Mr Ploumidis (owner of Pastry Art Design).
10. On 30 June 2015, the MRT affirmed the delegate’s decision, finding that the Applicant did not meet Public Interest Criterion 4020(1) for the purposes of cl 487.228 of the Regulations.
11. The Applicants applied to the Federal Circuit Court for review of the MRT’s decision. On 8 December 2015, Judge Wilson made orders by consent setting aside the MRT’s decision and remitting the matter to the Tribunal. The orders were made on the basis that the MRT failed to comply with s 359A of the Act, because it did not invite the Applicant to comment on information that Mr Ploumidis was involved in the production and verification of fraudulent work references.
Proceedings before the Tribunal on remittal and the Tribunal’s decision
12. The matter was remitted to the Tribunal on or about 15 December 2015.
13. On 14 March 2017, the Tribunal wrote to the Applicants, inviting the Applicants’ comment pursuant to s 359A of the Act. The Tribunal gave particulars of information that:
a) Mr [A] had admitted being involved in the creation of fraudulent work reference letters used in support of applications to TRA to obtain skills assessments to support General Skilled Migration visa applications;
b) Pastry Art Design was one of the businesses involved in the fraud, and Mr Ploumidis had agreed for Mr [A] to sign work reference letters on his behalf;
c) the period Mr [A] was engaged in the fraud coincided with the time when the Applicant claimed to have undertaken work experience at Pastry Art Design; and
d) a work reference from Pastry Art Design, with the Applicant’s name and date of birth, was located at Mr [A]’s premises during the execution of a warrant by the Australian Federal Police on 29 September 2009.
14. The information was said to be relevant, as it undermined the Applicant’s claims to have worked 900 hours at Pastry Art Design, and that it might indicate that the Applicant’s work reference was false or misleading and that the skills assessment had been obtained because of a false and misleading statement. The Tribunal advised that the information may cause the Tribunal to find that the Applicant did not meet the requirements of PIC 4020, and therefore that she did not meet the criterion for the grant of the Visa at cl 487.228 of the Regulations.
15. The Applicants were given until 28 March 2017 to respond, and advised that if they did not they would lose any entitlement to appear before the Tribunal.
16. On 14 March 2017, the Tribunal invited the Applicants to attend a hearing before the Tribunal on 13 April 2017.
17. On 4 April 2017, the Applicants’ agent sought a copy of the Applicants’ hearing before the MRT, and the Tribunal provided the Applicants with a copy of the recording the same day.
18. On 5 April 2017, the Tribunal wrote to the Applicants advising that because they did not respond to the Tribunal’s s 359A invitation by the required date, they had lost their entitlement to appear before the Tribunal. The Tribunal advised that it would not in any case take any step prior to 14 April 2017, to permit the Applicants to provide further evidence or submissions. The Applicants’ agent responded the same day, claiming that the Applicants had already responded to the Tribunal’s s 359A invitation.
19. On 6 April 2017, the Applicants’ agent provided submissions to the Tribunal.
20. On 29 May 2017, the Tribunal affirmed the delegate’s decision.
21. The Tribunal noted that it had issued an invitation pursuant to s 359A of the Act on 14 March 2017, and that the Applicants did not respond by 28 March 2017. The Tribunal found that s 359C of the Act applied, and that pursuant to s 360(3) of the Act the Applicants had no entitlement to appear before the Tribunal, and the Tribunal no power to permit them to appear. The Tribunal in any case had regard to the recording of the Applicants hearing before the MRT.
22. The Tribunal found that the Applicant gave the skills assessment to the Minister, or caused it to be given to the Minister. The Tribunal noted that the Applicant acknowledged that the skills assessment was obtained on the basis of the work reference. The Tribunal found it reasonably suspected that the skills assessment was obtained because of a false or misleading statement about the Applicant’s work experience. It consequently found the Applicant did not meet PIC 4020.27. The Tribunal was therefore not satisfied that the requirements of PIC 4020 should be waived. The Tribunal found that the Applicants did not satisfy the criterion for the grant of the Visa at cl 487.228.29.’ (emphasis in original) (footnotes omitted).
The Application for Review
The Application for review as amended on 6 November 2019 (‘Application’) contains two grounds of review. At the hearing, the Applicants abandoned the second ground of review. The remaining single ground of review is as follows:
‘The Tribunal failed to act on correct principle, correctly applied, in that it wrongly thought it had no power to conduct a hearing whatsoever of any kind.’
The ground of review set out above takes issue with paragraph [7] of the Tribunal’s Decision Record dated 29 May 2017 (‘Decision’). Paragraph [7] of the Decision is as follows:
‘On 14 March 2017 the Tribunal issued a further invitation pursuant to s.359A. The relevant parts of the invitation are set out below. The invitation included particulars of information that were not included in the invitation issued by the MRT in June 2014. The deadline for the applicants to comment or respond was 28 March 2017. The invitation included a warning that if the Tribunal did not receive the applicants’ comments or response by the deadline the applicants would lose any entitlement they might otherwise have to appear before the Tribunal to give evidence and present arguments. There was no response to the s.359A invitation dated 14 March. In the circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Hasran v MIAC [2010] FCAFC 40. See also SZHKA v MIAC; SXGOD v MIAC [2008] FCAFC 138 in which cases the Court considered the Tribunal’s general obligations when a matter is remitted.’
The Applicants’ submission, in summary, is that the Tribunal fell into jurisdictional error for the following reasons:
a)the Tribunal found at paragraph [7] of the Decision that the Tribunal ‘has no power to permit [the Applicants] to appear’;
b)the finding above is wrong. The Tribunal did have the power to invite the Applicants to appear under section 363(3)(a) of the Migration Act 1958 (‘Act’). This is so because the ability to exercise the power under section 363(3)(a) of the Act is permitted by the exception contained within section 363A of the Act;
c)the power under section 363(3)(a) of the Act is available to be exercised irrespective of whether the Tribunal conducts a hearing as contemplated by section 360 of the Act;
d)the Tribunal’s misunderstanding of its powers had the consequence that the Applicants were denied a material opportunity to present their case before the Tribunal.
In advancing the submission above, the Applicants accepted that:
a)section 359C of the Act was engaged in this matter;
b)the Applicants were invited to provide information to the Tribunal under section 359A of the Act;
c)the Applicants did not provide information or a response within the required time period;
d)the Applicants lost the right to the hearing, contemplated under section 360 of the Act.
The Applicants’ submission raises, among other things, somewhat novel and complex issues of construction in relation to sections 359C, 360, 363 and 363A of the Act. The resolution of those issues however, will not advance the Applicants’ case unless the Applicants are able to demonstrate the Tribunal committed an error as to jurisdiction. It is to that matter that I now turn. If that question is answered affirmatively in the sense of an error being identified, then the next issue is whether the Applicants’ construction of the relevant statutory provisions ought to be accepted. I therefore turn to deal now with the first issue above.
The Applicant takes issue with the statement of the Tribunal at paragraph [7] of its Decision that the ‘Tribunal has no power to permit them to appear’ (‘the Statement’). The Applicants contend that the Statement constitutes a statement by the Tribunal that it does not have ‘any’ power to permit the Applicants to appear before it, including any power under section 363(3)(a) of the Act. The Statement is said to be an error in view of the Applicants’ submission that the Tribunal has a separate power under section 363(3)(a) of the Act to summon a person to appear before it. In contrast, the Minister says there is no error. The Minister contends that the Statement should be understood as saying that the Tribunal has no power to permit the Applicants to appear ‘at a hearing’ which follows from an invitation issued pursuant to section 360 of the Act.
I accept the Minister’s submission. I am of the view that the Statement the ‘Tribunal has no power to permit them to appear’ refers to the Tribunal not having any power to permit the Applicants to appear ‘at a hearing’ under section 360 of the Act. I have come to this view for the following reasons.
First, the Statement needs to be looked at in the context of paragraph [7] as a whole. Paragraph [7] deals with events that concern the hearing afforded to Applicants under section 360 of the Act. The paragraph begins with a reference to the invitation that was issued to the Applicants under section 359A of the Act. It records the warning given to the Applicants if they did not respond to the invitation i.e. that they would lose an entitlement to appear at the hearing. The paragraph then records the fact that a response was not received and that, therefore the Applicants ‘are not entitled to appear at the hearing’. It then sets out the Statement. The above makes it apparent that the focus of paragraph [7] is on the invitation to provide information, and the consequence for the Applicants ‘at the hearing’ of not taking up that invitation. Nowhere else in the paragraph, except for the contention now advanced by the Applicants, is there any evidence of the Tribunal considering alternative sources of power. The focus is squarely on the hearing.
Secondly, in trying to give meaning to the Statement, paragraph [7] needs to be considered in the context of the broader reasons of the Tribunal and the paragraphs that surround it. Of particular relevance is paragraph [8]. That paragraph commences with the Tribunal recording that it did not receive any correspondence to the invitation to provide information sent by the Tribunal after 14 March 2017. It then records that a response was finally received (outside the specified time period) on 4 April. It is then noted that the Tribunal sent correspondence to the Applicants on 5 April to advise them that they had lost their entitlement to hearing.
It can be seen that the statements by the Tribunal that precede the Statement and that follow the Statement (in paragraph [8]) are concerned with the Tribunal’s finding that the Applicants have lost the right to a hearing. In my view, this points to the fact that the Statement is intended to refer to the hearing, and not some separate head of power.
Thirdly, the Statement itself bears examination. It is not simply a statement that the ‘Tribunal has no power to permit them to appear’. The full statement is as follows: ‘The Tribunal has no power to permit them to appear: see Hasran v MIAC [2010] FCAFC 40’. The reference to the decision in Hasran is instructive for two reasons. That is a decision that followed the decision of Tracey J in M v Minister for Immigration and Multicultural Affairs [2006] FCA 1247. It is a decision that is concerned with the power of the Tribunal to permit an appellant to appear at an oral hearing conducted under section 360 of the Act.
Further, when paragraphs [26] to [29] of Hasran are examined, it becomes apparent that the structure of the Tribunal’s reasoning in the present matter follows closely in form and structure the Full Court’s reasoning in Hasran. Relevantly, it can be seen in Hasran that at [28], the Full Court makes reference to the appellants not being ‘entitled to appear before the Tribunal’, before stating in paragraph [30], having referred to the relevant sections of the Act, that the Tribunal ‘did not have the power to permit the appellant to appear at a oral hearing’. The Tribunal here has followed that approach, notwithstanding it has omitted the reference to the oral hearing.
The Applicants contended at the hearing that the Statement must refer to other powers available to the Tribunal (including those under section 363(3) of the Act) because it would make little sense to repeat the conclusion that appeared in the preceding sentence. This construction must be rejected for the reasons I have advanced above.
Finally, it is relevant that there was not any request made by the Applicants that the Tribunal exercise the power to summons under section 363(3)(a) of the Act. There is, in my view, no reason to infer the Tribunal was considering the exercise of other powers when it made the Statement in circumstances where a request was not put to it.
Accordingly, for the reasons set out above, in my view, the construction of paragraph [7] advanced by the Applicants should be rejected.
In light of my conclusion above, it is unnecessary for me to deal with the argument advanced by the Applicants that section 363(3)(a) of the Act reposes in the Tribunal a separate head of power that the Tribunal is able to exercise independently of any hearing conducted under section 360 of the Act.
For the above reasons, the Application is dismissed.
The Applicants agreed with the Minister’s written submission that the Tribunal did not have jurisdiction with respect to the Third Applicant as he was born after the delegate’s decision was made. The Applicant submitted that the Third Applicant still had a sufficient interest in the proceedings and should remain a party. The Minister submitted that if I was to allow the Application, it would be futile to remit the matter for reconsideration, in regards to the Third Applicant, where there is no decision for the Tribunal to review. As I have not granted the Application, I have noted on the order the circumstances surrounding the Third Applicant.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 6 February 2020
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