Kaur v Minister for Immigration
[2016] FCCA 1030
•14 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ORS v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1030 |
| Catchwords: MIGRATION – Review of a decision by the Migration Review Tribunal – application for Skilled (Provisional) (Class VC) visas – bogus document – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.97, 359A(1), 360, 362B(1) Migration Regulations 1994 (Cth), Sch 2: cl.485.224, Sch 4. Criterion 4020, 4020(1) |
| Cases cited: Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240 |
| First Applicant: | KANWALJIT KAUR |
| Second Applicant: | GURPREET SINGH |
| Third Applicant: | RUHAN CHAHAL |
| First Respondent: | MINISTER OF IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1722 of 2014 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 14 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 14 April 2016 |
REPRESENTATION
| The First Applicant: | In Person |
| Counsel for the First Respondent: | Mr Wood |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The application for an adjournment is refused.
The application is dismissed.
The Applicants pay the costs of the First Respondent fixed in the sum of $8,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1772 of 2014
| KANWALJIT KAUR |
First Applicant
| GURPREET SINGH |
Second Applicant
| RUHAN CHAHAL |
Third Applicant
And
| MINISTER OF IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
The Applicants have applied for judicial review of a decision of the Second Respondent (‘the Tribunal’) on 25 August 2014 to affirm an earlier decision of a delegate of the First Respondent to refuse to grant them Skilled (Provisional) (Class VC) visas (‘the visas’). The Tribunal was not satisfied that the First Applicant satisfied the criterion in cl.485.224 on Sch.2 to the Migration Regulations 1994 (Cth) (‘the Regulations’) which imports Public Interest Criterion (PIC) 4020 in Sch.4.
Clause 485.224 of Sch.2 to the Regulations is as follows:-
“(1) The skills of the applicant for the applicant's nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.
(1A) If the assessment is expressed to be valid for a particular period, that period has not ended.
(2) If the applicant's skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.”
Public Interest Criterion 4020 in Sch.4 of the Regulations is as follows:-
“(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, 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 to grant the visa;
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).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A) The applicant satisfies the Minister as to the applicant's identity.
(2B) The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(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: For the definition of bogus document, see subsection 5(1) of the Act.”
The grounds of application as set out in the application dated 25 August 2014 and filed that same date are as follows:-
“(1) I have applied for a skilled (Provisional) (Class VC) visa under s.65 of Migration Act 1958 (the Act) on 21.08.2011 with my husband Mr Gurpreet Singh and son Master Ruhan Chahal, with relevant documents. The delegate refused to grant the visa on 21 Jan 2013 on the basis that I did not satisfy the requirements of cl.485.224 of schedule 2 to the migration regulations 1994 (the Regulations). The delegate was not satisfied that I did not meet Public Interest Criterion (PIC)4020.
(2) I have applied to MRT to reconsider the decision made by the delegate, at the time of making application I had IELTS exam result as well but I don’t know what happened exactly and delegate said that there was no result contained within the IELTS verification system for me for the test.
(3) I have given IELTS exam through IDP but I don’t know what happened and they says photo mismatch. Please allow me some time so I can arrange documents.
(4) I request honourable authority to please consider my application and grant me time so that I can collect the documents and can present documents before honourable justice.”
History of Listing
These proceedings came first before Registrar Caporale on 19 November 2014. On that day, the Court ordered by consent, amongst other orders, that:-
“(1) Pursuant to Rule 44.11(c), a hearing under rule 44.12 of the Federal Circuit Court Rules 2011 (Cth) be dispensed with and the application be listed for final hearing.
…
(3) The applicant file and serve by 30 June 2015:
(3.1) any amended application including any additional grounds of review with complete particulars of each ground; and
(3.2) any affidavits.
…
(7) The applicant file and serve written submissions and a list of authorities 14 days before the final hearing.”
When the matter was earlier returnable for final hearing on 26 August 2015, the Applicants sought an adjournment of the proceedings. The First Respondent opposed that adjournment. The Court granted to the Applicants the adjournment sought. The orders made on 26 August 2015 are as follows:-
“(1) The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
(2) All extent applications are adjourned for final hearing on 28 September 2015 at 10 am.
(3) The First Respondent’s costs of this day are reserved.”
When the matter next returned before the Court for final hearing on 28 September 2015, the Applicants had a solicitor appearing on their behalf. That solicitor, Mr Godson, sought an adjournment of the proceedings on behalf of the Applicants to enable them to be adequately legally represented. The Court granted the adjournment, listing the matter to 28 October 2015 at 10 am. The Court ordered further that the First Applicant pay the costs of the First Respondent to be fixed on 28 October 2015.
Thereafter, and by notice of withdrawal as lawyer dated 20 October 2015, the Applicant’s lawyer withdrew from the record and indicated he was no longer acting for the Applicants in the proceedings.
In respect of the further final hearing listing, the Applicants sought yet a further adjournment. In an affidavit affirmed by the First Applicant, Ms Kaur, of 26 October 2015 Ms Kaur deposed to having elective surgery on 27 October 2015 at Werribee Mercy Hospital and as a consequence deposed to being unable to attend the hearing of 28 October 2015. Ms Kaur annexed to that affidavit a medical certificate and report from the Werribee Mercy Hospital. The adjournment request was granted, and the proceedings were adjourned to February 2016, in relation to which the First Respondent submits there was a further request from the Applicants to adjourn the proceedings, as they were overseas, and the proceedings were administratively adjourned to the hearing this day, being 14 April 2016.
In respect of the final hearing of 14 April 2016, the Applicants again requested an adjournment. That request was first notified to the Court by correspondence from the First Applicant of 12 April 2016, which said, relevantly, as follows:-
“I am due to appear at Federal Circuit Court on 14 April 2016 regarding my Application to Appeal a Decision by the Department of Immigration & Border Protection (DIBP).
I am unable to attend court on this date as I am currently seeking legal representation and advice in regards to my matter and thus I kindly request the Court to adjourn my case to another date.”
The First Applicant was advised that any request for an adjournment needed to be copied to the Solicitor for the First Respondent. The Applicants were advised that the matter remained listed for hearing this day.
As at this day, 14 April 2016, the Applicants have not filed and served any amended application nor any written submissions.
The First and Second Applicants attended the hearing on 14 April 2016. Although they had not sought an interpreter in the Punjabi and English languages, they indicated at commencement of the hearing, that the matter could not proceed without an interpreter. Accordingly, the proceedings were stood down and a qualified interpreter’s services obtained. The matter was then able to proceed. The Applicants sought a further adjournment of the proceedings on the basis that they wished to obtain the services of a lawyer. They submitted that their previous lawyer had to withdraw as they were without funds to pay him at the time. They were without funds at the time because they had to expend moneys on the First Applicant’s medical needs, and on their children, who are living in India.
The communication forwarded by the First Applicant to the Court of 12 April 2016 was clearly deficient in its lack of any particulars as to why the Court should grant a further adjournment to the Applicants in respect of this matter. The oral submissions of the Applicants on the hearing did little to advance their case. There was no evidence or sufficient evidence before the Court that the Applicants were presently, or in the recent past, unable to afford a lawyer and no evidence as to what it was they had done to obtain the services of a lawyer in respect of the hearing. The only submissions they made in that regard were that they had earlier sought legal advice and been told that their case was very weak. The solicitor who filed the notice of address for service on the Applicants’ behalf and whom subsequently withdrew had agreed to fight the case for them, they claimed, and the reason for his withdrawal was their lack of ability to make payments to him.
These proceedings commenced in August 2014. It is now April 2016. They have been adjourned on numerous occasions at the request of the Applicants. It is not procedurally unfair for the Applicants to appear as litigants in person. The evidence provided by the Applicants as to the basis for their adjournment this day is vague and limited, and they have had ample opportunity to obtain legal representation in these proceedings. The First Respondent is now prejudiced by the repeated adjournments, and the Court cannot be confident that any legal representation would be obtained by the Applicants should the matter be adjourned.
There is also the appropriate use of public resources. These proceedings have been sufficiently protracted. In the exercise of its discretion the Court determines that the adjournment application is refused. Those principles as set out in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 per French CJ and 213 to 215 per Gummow, Hayne, Crennan, Kiefel and Bell JJ have been considered by the Court. It is necessary to avoid the further undue delay of these proceedings; the wastage of public resources; and proceed with appropriate case management of this proceeding and do justice between the parties. The adjournment application is refused.
History
On 12 August 2011, the First Applicant applied for subclass 485 visas. The delegate refused to grant the visas on the basis that the First Applicant (‘the Applicant’) did not satisfy the requirements of cl.485.224 of Schedule 2 to the Regulations because the delegate was not satisfied the Applicant met Public Interest Criterion (PIC 4020).
In applying for the subclass 485 visa, the Applicant had indicated to the Department that she had undertaken an International English Language Testing System (IELTS) test on 14 May 2011 with the reference number “11IN009938TK855A” and that her language ability had been assessed as “competent”. She enclosed a copy of the IELTS test report form including a photograph. She enclosed a copy of a passport-sized photograph and enclosed a copy of the photograph page of a passport.
The IELTS test report form:-
a)Identified the Applicant and referred to the Applicant’s nominated IELTS reference number;
b)Indicated that the Applicant had been attributed scores of 9.0 for the listening test, 6.5 for the reading test, 6.0 for the writing test, 6.0 for the speaking test and an overall band score of 7.0; and
c)Indicated that “the validity of this IELTS test report form can be verified online by recognising organisations at >
By letter dated 17 July 2012, the delegate had written to the Applicant inviting her to comment on certain information indicating that the IELTS test report form was a bogus document. A bogus document is defined in s.97 of the Migration Act 1958 (Cth) (‘the Act’) and that definition is as follows:-
““bogus document” in relation to a person means a document that the Minister reasonably suspects is a document that:
a) purports to have been, but was not, issued in respect of the person; or
b) is counterfeit or has been altered by a person who does not have authority to do so; or
c) was obtained because of a false or misleading statement, whether or not made knowingly.”
The delegate’s letter to the Applicant relevantly stated:-
“On 12 August 2011, in support of your application for a Skilled (Provisional) (Class VC) subclass 485 (Skilled - Graduate) visa, you provided to the Department an IELTS English test result number 11IN009938TK855A dated 14 May 2011.
On 09 September 2012, using the IELTS English test number you provided, the Department conducted checks to verify your claims. The photo displayed against this IELTS English test number does not match the passport photo you provided of yourself when you lodged your application, suggesting that another person, not you, undertook the test with test result number 11IN009938TK855A .
On 05 August 2011 the Department received information from International Development Program Education Pty Ltd (IDP) Audit and Investigation Unit (IDP) for IELTS that following a review of the test it appears another person, not you, undertook the test. In light of this information your test result of 14 May 2011 has been cancelled by IDP.
The Applicant did not respond to this letter of the delegate.
Tribunal’s Decision
The Applicant sought review of the delegate’s decision on 11 February 2013 in the Migration Review Tribunal (as it then was) (‘the Tribunal’). The Applicant identified a registered migration agent as her representative and authorised recipient.
By letter dated 13 May 2014, the Tribunal invited the Applicants to appear before it to give evidence and present arguments in relation to the issues in their case. On 21 May 2014, the Tribunal received a request for a hearing postponement from the Applicant’s representative because the Applicant was overseas. The Tribunal granted the request and scheduled a new hearing for 10:30 am on 30 July 2014. The representative was advised of such in a letter dated 29 May 2014 and by telephone on 22 May 2014.
On 30 July 2014, neither the Applicants nor their agent appeared at the rescheduled hearing. As the Applicants’ agent had advised the Tribunal that he had changed his address on 29 July 2014, a Tribunal officer telephoned the Applicant’s agent on 30 July 2014 to confirm that he had received the rescheduled hearing invitation. The Applicant’s agent told the officer that he had received the hearing invitation and explained that the Applicant had indicated that she did not intend to attend the hearing.
In those circumstances, the Tribunal exercised its discretion under s.362B(1) of the Act to make a decision on the review without taking any further action to allow or enable the Applicants to appear before it. On 30 July 2014, the Tribunal determined to affirm the delegate’s decision to refuse to grant subclass 485 visa to the Applicants. The Tribunal was not satisfied that the Applicant satisfied PIC 4020.
The Tribunal explained its reasoning as follows:-
“10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that in this case, the delegate determined that the applicant had provided a ‘bogus document’ in relation to the visa application in the form of an IELTS Test Report Form (TRF) for a test the applicant sat on 14 May 2011. The delegate reached this conclusion after noticing that the photograph on the IELTS TRF provided did not match the passport photograph the applicant had provided when she applied for the visa. Also, after receiving information from the International Development Program Education Pty Ltd (IDP) Audit and Investigation Unit (IDP) for IELTS on 5 August 2011 that, following a review of the test, it appears another person undertook the test. Furthermore, in light of that information, IDP cancelled the applicant’s test results of 14 May 2011.
…
13. The Tribunal places considerable weight on the fact that an investigation carried out by the International Development Program Education Pty Ltd (IDP) Audit and Investigation Unit for IELTS found that another person undertook the test in question.
14. The Tribunal was unable to canvass these issues with the applicant in person because she did not turn up to the hearing.
15. The Tribunal notes that the definition of ‘bogus document’, does not require a conclusive finding that the result shown related to the applicant. Rather it is sufficient that the Tribunal ‘reasonably suspects’ that the document was bogus, for example, because it was not issued in respect of the applicant or because it is counterfeit or has been altered or was obtained because of a false or misleading statement (see Sandhu v the Minister for Immigration & Anor [2013] FCCA 491).
16. The Tribunal reasonably suspects, having regard to the evidence presented by the International Development Program Education Pty Ltd (IDP) Audit and Investigation Unit for IELTS as detailed in the delegate’s decision, that the IELTS test report form which the applicant provided with her visa application purports to have been, but was not, issued in respect of her person. The Tribunal finds that the IELTS test report form was a bogus document within the meaning of s.97(a) of the Act.
17. Accordingly, the Tribunal is not satisfied that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister or an officer, a bogus document in relation to the application for the visa.
18. Therefore, the applicant does not meet PIC 4020(1).”
The Tribunal considered whether the requirement of PIC 4020(1) should be waived and noted that the Applicant did not make any submissions with respect to the waiver provision and there was nothing before the Tribunal to indicate that PIC 4020(1) should be waived.
Consideration
The application for judicial review discloses no intelligible ground of judicial review for jurisdictional error in the Tribunal’s decision. The Tribunal afforded the Applicants procedural fairness as required under the statutory scheme. The Tribunal invited the Applicants to appear before the Tribunal to give evidence and present arguments in relation to the issues arising, in compliance with s.360 of the Act. It was not “legally unreasonable” for the Tribunal to decide under s.362B(1) of the Act to determine the review when it did, in circumstances where the Applicants did not appear at the hearing, and their agent advised the Tribunal that the First Applicant intended not to appear (see Kaur v the Minister for Immigration and Border Protection (2014) 141 ALD 619 (Mortimer J)).
The information as described above in respect of the Applicant’s IELTS test result was not information to which the obligation in s.359A(1) of the Act applied, because that information was all contained in the delegate’s decision record which the Applicant had given to the Tribunal for the purpose of the application for review. (Minister for Immigration and Citizenship v Chamnan You [2008] FCA 241 and Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240 at 74).
It was clearly open to the Tribunal to conclude that the Applicant had failed to satisfy PIC 4020. There was evidence before the Tribunal that the Applicant had given a bogus document being a document that the Tribunal reasonably suspected purported to have been, but was not, issued in respect of the First Applicant. There was no jurisdictional error in the Tribunal analysis of that issue including by reference to the principles as stated by the Full Court of the Federal Court in Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169at 177 to 178.
I note further the decision of Sun v the Minister for Immigration and Border Protection [2016] FCAFC 52 wherein in a joint judgment of Flick and Rangiah JJ (as submitted by Counsel for the First Respondent) the following is said:-
40. When considering, for example, “the facts to be established” for the purposes of reaching a state of “satisfaction” as to whether “there are reasonable grounds for suspecting” that there may be on premises anything which may afford evidence of an offence for the purposes of issuing a search warrant pursuant to s 697 of The Criminal Code (Qld), Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ in George v Rockett (1990) 170 CLR 104 at 115 to 116 observed:
The facts to be established
In considering the sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which s. 679 refers, it is necessary to bear in mind that suspicion and belief are different states of mind … and the section prescribes distinct subject matters of suspicion on the one hand and belief on the other. The justice must be satisfied that there there are reasonable grounds for suspecting that “there is in any house, vessel, vehicle, aircraft, or place – Anything” and that there are reasonable grounds for believing that the thing “will ... afford evidence as to the commission of any offence”.
Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [1970] AC 942, at 948, “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, “was unable to pay [its] debts as they became due” as that phrase was used in s. 95(4) of the Bankruptcy Act 1924 (Cth). Kitto J said (at 303):
“A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s. (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the subsection describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.”
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
Citing George v Rockett, Gageler J in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 observed:
[64] A statutory requirement that a decision-maker arrive at a state of satisfaction as a precondition to an exercise of a statutory power, like a requirement that a decision-maker hold a belief as a precondition to an exercise of a statutory power, necessitates that the decision-maker “feel an actual persuasion” — “an inclination of the mind towards assenting to, rather than rejecting, a proposition”…”
And further in the joint judgment of Flick and Rangiah JJ in Sun v the Minister for Immigration and Border Protection [2016] FCAFC 52 in paragraph 86 and 87, the following is said:-
“86. Of present importance is that there remained “objective circumstances” upon which the “reasonable suspicion” of the Tribunal was founded. The “objective circumstances” could not properly be characterised as mere “surmise or conjecture”: George v Rockett (1990) 170 CLR at 115 to 116. Admittedly the Tribunal’s statement of its “satisfaction” that the documents were “bogus documents” carried with it a recognition that there was “an element of fraud or deception”: Trivedi [2014] FCAFC 42 at [33], (2014) 220 FCR at 177 to 178 per Buchanan J. That was a finding not lightly to be made. Whether a different decision-maker would have formed the same state of suspicion was not to the point; what was relevant was that the state of “reasonable suspicion” reached by the Tribunal was a conclusion open to it on the facts.
87. Once there was an objective factual foundation for the Tribunal’s conclusion, any further attempt to challenge those conclusions trespassed into the impermissible attempt to cavil with factual conclusions not disclosing any error of law.”
The application is dismissed and costs shall follow that event.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 3 May 2016
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction