Kaur v Minister for Immigration

[2017] FCCA 50

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 50

Catchwords:
MIGRATION – Application for judicial review – skilled (Provisional) (Class VC) visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.79, 97

Migration Regulations 1994, reg.1.03, cl. 485.224

Cases cited:

Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

First Applicant: JASPREET KAUR

Second Applicant: LAKHMAN SINGH

Third Applicant: GURSAMARVEER SINGH VIRK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 158 of 2015

Judgment of: Judge Riethmuller

Hearing date: 16 December 2016

Date of Last Submission: 16 December 2016

Delivered at: Melbourne

Delivered on: 1 February 2017

REPRESENTATION

The First Applicant appeared In Person

Counsel for the First Respondent: Mr Yuile

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 158 of 2015

JASPREET KAUR

First Applicant

LAKHMAN SINGH

Second Applicant

GURSAMARVEER SINGH VIRK

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applies to judicially review a decision of the Migration Review Tribunal (as it was then known) made on 6 January 2015. That decision affirmed a decision of a delegate refusing a Skilled (Provisional) (Class VC) visa. The basis of the refusal was that the applicant had provided a bogus document and therefore did not meet the requirements of clause 485.224 of the Migration Regulations 1994 (“the Regulations”) as she failed to meet the Public Interest Criteria, PIC4020.

2. In this case, the delegate had concluded that the applicant relied upon a Trades Recognition Australia (“TRA”) skills assessment, reference number 08/106215224, which was a bogus document as defined in section 79 of the Migration Act 1958 (the “Act”).  The skills assessment was based upon a document supplied to the TRA, being a work reference from Spiro Kavadias (who operated Enigma Hair Studio) stating that the applicant had engaged in 922 hours of work experience at Enigma Hair Studio.

3. Whilst the TRA assessment document was not a bogus document in the sense that it was, in fact, a document issued by the TRA, it was alleged to be obtained because of a false or misleading statement with respect to the work experience of the applicant and therefore also fell within the definition of bogus document in section 97 of the Act.

4. The applicant maintained that she did, in fact, work at Enigma Hair Studios between 6 December 2006 and 27 November 2007.  The applicant said that throughout this time, she performed 922 hours work as a volunteer, which was entirely unpaid. 

5. The department became aware of the potential difficulties with the work reference document when investigating a third party, Mr X.  Mr X ultimately made full admissions to having produced hundreds of fraudulent documents with respect to skills assessments. During the investigations the document relied upon by the applicant was located in electronic form on a USB stick in the possession of Mr X.  That is, the work reference stating that she had engaged in 922 hours work experience with her full name and date of birth was in possession of Mr X in electronic form.  Mr X maintained that all of the documents in his possession were fraudulent and that one of the employers engaged in this fraud was Spiro Kavadias from Enigma Hair Studios.

6. The Tribunal also heard evidence from the applicant that her migration agent had advised her she would need such a reference to obtain a skills assessment in 2007.  The applicant said that she contacted her employer and obtained the reference two to three weeks later.  Mr Kavadias also gave a statutory declaration saying that the reference was given 15 days after he was requested to produce it. 

7. There were inconsistencies with respect to the dates on which the applicant worked.  The applicant’s evidence was that she worked between 6 December 2006 and 27 November 2007.  Mr Kavadias’ evidence was that she worked between 9 December 2006 and 27 November 2007.  Departmental records showed that the applicant left Australia on 15 November 2007, which the applicant later confirmed, as her father-in-law had passed away in India.

8. In support of her position, the applicant provided evidence from witnesses by way of statutory declaration, such as that of a customer who said that she had seen the applicant twice at Enigma Hair Salon, as well as statutory declarations from her husband and the hair studio owner, Mr Kavadias.

9. A further inconsistency that appeared in the applicant’s statement was her claim that she was working four to five hours per week, other than in term breaks, whereas a later statement said that she was working 20 hours per week.

10. Ultimately, the Tribunal did not accept the evidence of the applicant and concluded that the reference was false and therefore the TRA skills assessment was a bogus document within the meaning of the statutory provisions.

11. The Tribunal then went on to consider whether or not the requirements of PIC4020 should be waived in the circumstances of this particular case. The wavier provisions provide for a waiver if there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen as defined in reg.1.03 that justify the granting of the visa. The Tribunal declined to exercise the waiver provisions.

The Grounds for this Application

1. The applicant’s grounds for review, as stated in her application, are as follows:

   (1)My work experience was genuine.

   (2)My documentation was not considered in depth by MRT.

   (3)I can contribute positively by working in my field of hairdressing.

2. In substance, the applicant seeks to review the decision of the Tribunal on its merits.

3. The applicant, in her oral submissions, raised concerns that her witnesses, who provided statutory declarations and were able to give evidence, were not cross-examined in person.  There is no evidence that these witnesses were brought by her to the hearing, nor does it appear that the Tribunal member sought to hear from these witnesses in person.  Whether or not a Tribunal member assesses the evidence in person or by way of documentary material is ultimately a question for the Tribunal member.  Whilst there may be a small category of cases where the factual dispute is entirely one person’s oral and written evidence against another, which may require an assessment of the witnesses personally, this does not appear to be such a case. 

4. The evidence other than the witnesses’ testimony was strongly against the veracity of the work reference:

   (a)The relevant reference was found on a memory stick in the possession of Mr X, with the applicant’s full name and date of birth.  This is compelling evidence that the reference had been generated by Mr X as it is difficult to see any other rational basis for explaining why he would have the reference, nor how he would have the applicant’s personal details.

   (b)The work reference alleges a larger number of hours than she worked each week.  

   (c)Less compelling, however, but still significant, is the fact that the applicant left the country during the period at the end of the year when she was said to be working in the reference. 

   (d)Again, less compelling, as it may be a typographical error, is the difference in start dates between the reference and the applicant’s statement. 

5. The applicant did not produce any extrinsic evidence, such as the diary from the hairdressing salon, or telephone records showing that her mobile phone was utilised in the area of the salon on a regular basis.  Whether this evidence was available and would have made a difference is sheer speculation. Such evidence was not produced on this hearing, but would not be admissible now as this application is not one of merits review, but judicial review.  The applicant is left with the evidence that she chose to present to the tribunal at the Tribunal hearing, rather than being able to rely upon additional evidence that she might now gather.

6. The likelihood that some form of work diary existed in the hairdressing salon leads to a further consideration.  Should the Tribunal have made enquiries of the department as to whether or not the Tribunal had all of the documents that the department and/or police had obtained in the investigations with respect to this employer?  If the department had obtained other documents from the employer, then it would have been a simple thing for the Tribunal member to have viewed those documents to ascertain whether they were in favour of, or against the applicant. 

7. It is not clear on the face of the decision whether or not the Tribunal member sought all of the documents relating to the applicant rather than simply relying upon documents that departmental officers had provided.  Paragraph [35] of the decision states:

   35. The Department provided various documents to the Tribunal pertaining to the criminal investigation as described below. The Tribunal reviewed the documentary material and noted the following critical parts of the evidence relevant to whether Mrs Kaur worked at Enigma Hair Studio and the hours that Mrs Kaur worked at Enigma Hair Studio, in considering whether the work reference provided by Mrs Kaur to the TRA contained false or misleading statements.

8. Arguably, this becomes relevant as it may be that even though there were hundreds of fraudulent references found in Mr X’s possession, there is the possibility that at least one or two people would have been genuinely employed in the various businesses at the relevant times.  Those references providing a template for the fraud. Whilst this may represent less than one or two per cent of the people that have references, it is still important to ensure that those persons are not treated as having provided bogus documents if they had, in fact, carried out the work.

9. When considering judicial review on the basis that the Tribunal failed to make enquiries, the High Court has said in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 that:

   [25] Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

10. In this case there is no evidence or inquiry that was likely to easily ascertain a fact that would make a significant impact upon the outcome of the case.  At best there was a line of enquiry that may have led to more evidence.

11. The real difficulty for the applicant was the impact of the evidence that her work reference was found in the possession of Mr X coupled with the errors referred to above.  As a result I am not persuaded that this argument provides a basis for judicial review on the facts of this particular case.

12. I therefore refuse the application for judicial review.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Date: 1 February 2017