Kaur v Minister for Immigration
[2016] FCCA 778
•16 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 778 |
| Catchwords: MIGRATION – Review of a decision by the Migration Review Tribunal – Skilled (Graduate) (Temporary) (Class VC), subclass 485 visa – false and misleading information of a TRA assessment – no waiver under PIC 4020(4) –application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.98, 359(2), 359A, 359C, 360(3),363A Migration Regulations 1994 (Cth), Sch. 2: cls.485.221, 485.224, Sch. 4: 4020, 4020(1), 4020(2), 4020(4) |
| Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40 Sran v Minister for Immigration & Anor [2014] FCCA 37 |
| First Applicant: | MANPREET KAUR |
| Second Applicant: | SURINDER SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 43 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 16 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 16 March 2016 |
REPRESENTATION
| Counsel for the Applicants: | Mr Gordon |
| Solicitors for the Applicants: | Ronald Gordon |
| Counsel for the First Respondent: | Mr Smyth |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS MADE ON 16 MARCH 2016
The name of the Second Respondent be changed to the Administrative Appeals Tribunal
The application is dismissed.
The applicants pay the costs of the First Respondent fixed in the sum of $6,825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 43 of 2015
| MANPREET KAUR |
First Applicant
| SURINDER SINGH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
Before the Court is an application for judicial review dated 12 January 2015. The grounds of the original application were as follows:-
“1. I need to be given a chance to prove my circumstances.
2. I have genuine skills and education gained as a result of my hard work and I can positively contribute towards the Australian community.”
The application was amended by amended application filed on the hearing of this matter, namely 16 March 2016. The amended application does not proceed with the initial grounds of the application, which were formulated when the Applicants were litigants in person. On the hearing the Applicants were represented by a Solicitor, who sought leave to file the Amended Application. Such leave was granted. There was also filed and relied upon an Applicants’ outline of written submissions and an affidavit affirmed by the First Respondent on 12 January 2015.
Registrar Burns ordered on 29 April 2015 that the Applicants file and serve by 3 February 2016 an amended application and written submissions. The Applicants have now attended to those matters at the final hearing. The amended grounds of application are as follows:-
“1. The Applicants application lodged on 6 January 2011 was an invalid application by reason of fraud committed by the Applicants then migration agent;
2. There was evidence before the then Migration Review Tribunal that the Applicants then migration agent had committed a fraud by lodging a fraudulent application without the knowledge and consent of the Applicants and the then Migration Review Tribunal failed to take this evidence into account;
3. The then Migration Review Tribunal had judicial notice that the Applicants then migration agent S & S Migration was and had been involved in a large number of fraudulent applications being submitted to the Department of Immigration and Border Protection;
4. The then Migration Review Tribunal ought to have declared the Applicants application lodged on 6 January 2011 as an invalid application.”
The First Respondent filed a Response dated 16 January 2015 seeking that the application be dismissed and the Applicants pay the First Respondent’s costs of the proceeding, on the grounds that the decision under review was not affected by jurisdictional error. At the hearing the First Respondent sought that the Amended Application be dismissed and that costs follow the event on the basis that the decision under review was not affected by jurisdictional error.
The Court has also before it the evidence as contained in the Court Book filed on 19 March 2015.
History
The Applicants, Ms Kaur and Mr Singh, are nationals of the Republic of India and wife and husband. Ms Kaur is the primary visa applicant, and as such her husband’s visa status is contingent on hers. On 6 January 2011 the First Applicant made an application for a Skilled (Graduate) (Temporary) (Class VC) subclass 485 visa (‘the visa’). She completed a general skilled migration application form. It did not indicate that there was any authorised recipient or agent acting on her behalf. In answer to the question “Did you receive assistance in completing this form?” she said “no”. In that form under the heading “Applicant skills assessment”, the First Applicant provided the following details: -
“Nominated occupation cook
Name of assessing authority Trades Recognition Australia
Date of Skills Assessment 26 April 2010
Reference/Receipt number TRA10/038969527”
Despite the above, the First Applicant claimed that such information was provided to the Department of Immigration and Citizenship (as it then was) (‘the Department’) without her knowledge or consent.
Counsel acting for the Applicants took the Court to page 25 of the Court Book, which is a document headed ‘Operation Danube – Skills assessment NOT verified’. That document noted that upon the application of the First Applicant being received by the Department the case was identified for checking, as Department investigators found records linking the First Applicant’s “485 application to a business called S & S Migration, who were being found to have lodged a number of applications to the Department containing false and misleading information”. The outcome of that referral was that on 20 December 2011 the Department were advised by Trade Recognition Australia (TRA) that TRA held no record of the First Applicant. The reference number they provided could not be verified, as it did not exist on TRA systems, and they had no record of the First Applicant ever holding a skills assessment.
On 20 February 2012 the Applicants were contacted by the Department and provided with an invitation to comment on adverse information in relation to the 485 application. In summary, the invitation to comment put the following adverse information to the Applicants:-
“It is alleged that you lodged your 485 application, currently under consideration by the Department, was lodged (sic) with the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information… the Department has identified a file with your personal details and the application reference numbers in the office of S & S Migration.
…you provided the following reference indicating a successful skills assessment TRA10/038969527… TRA have no record of providing you with any skills assessment. TRA also have no record of ever providing you with any skills assessment. It is therefore alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.”
The Applicants were provided with 28 days to respond to the letter. At the time of the delegate’s decision they had not responded to the invitation to comment.
The matter proceeded before a delegate of the Minister, who made a decision on 21 May 2012. The delegate determined that the First and Second Applicants did not meet the legal requirements for the grant of any subclasses within the Skilled Provisional (Class VC) visa and thus refused to grant to the First Applicant a Skilled (Provisional) (Class VC), subclass 485 Skilled (Graduate) visa. The delegate noted that as the Second Applicant did not meet the requirements for the grant of any subclasses within the Skilled (Provisional) (Class VC) and was not a member of the family unit, or an interdependent partner or dependent child of the interdependent partner of a person who held a Skilled Provisional (Class VC) visa, the delegate determined to refuse to grant to the Second Applicant a Skilled (Provisional) (Class VC), subclass 485 Skilled (Graduate) visa.
The delegate in considering the matter noted that the Migration Regulations were amended on 2 April 2011 by Migration Amendment Regulations 2011, (No. 1) (‘the Amended Regulations). These amendments included, amongst other things, the inclusion of Public Interest Criterion (PIC) 4020. The Amended Regulations also imposed the requirement to satisfy PIC 4020 to applications for a specified visa made before 2 April 2011 but being decided on or after this date. The Applicants’ application for a visa was subject to these amendments.
PIC 4020 is set out in Sch.4 to the Migration Regulations 1994 (Cth) (‘the Regulations’). It 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.”
Public interest criterion 4020 is a mandatory criterion of the visa by virtue of cl.485.224 of Sch.2 to the Regulations.
The Tribunal
The Applicants sought review of the delegate’s decision in the Migration Review Tribunal (as it then was) (‘the Tribunal’). The Tribunal concluded the decision under review, namely not to grant the Applicants the visa, should be affirmed, by decision of the Tribunal dated 23 December 2014.
Earlier and on 23 April 2014 the Tribunal wrote to the Applicants pursuant to s.359A and 359(2) of the Migration Act 1958 (Cth) (‘the Act’). This is set out in paragraph 4 of the Statement of Decision and Reasons of the Tribunal (‘the Decision Record’). The Tribunal thereafter said:-
“…The Tribunal advised the applicants that in conducting its review, it was required to formally invite them to comment on or respond to certain information which the Tribunal considered would, subject to their comments or response, be the reason (or part of the reason) for affirming the decision under review. The Tribunal noted, however, that it had not made up its mind about the information. It stated that it was writing to seek the applicants’ comments about potentially adverse information that affected their case, in particular that Trades Recognition Australia (TRA) has no record of providing the skills assessment referred to in the visa application and that documents or information relating to the applicant was located in the office of the firm S & S Migration, which had been found to have lodged applications to the Department which contained false or misleading information.”[1]
[1] Migration Review Tribunal Decision Record dated 23 December 2014 at [4].
And in paragraph 5 of the Decision Record:-
“The applicants were also invited to provide information evidencing that, as at the date of the visa application, an application had been made for an assessment of the applicants skills for her nominated skilled occupation by a relevant assessing authority and, further, that her skills for that occupation had been assessed by that authority as suitable.”[2]
[2] Migration Review Tribunal Decision Record dated 23 December 2014 at [5].
The Applicants did not provide the information requested under s.359(2) of the Act or any comments or response to the invitation under s.395A of the Act within the prescribed period, and no extension was sought or granted. In those circumstances s.359C of the Act applied, and pursuant to s.360(3) of the Act, the Applicants were not entitled to appear before the Tribunal. The Tribunal noted that the effect of s.363A of the Act, given the operation of the earlier provisions referred to herein, is that if a review Applicant has no entitlement to a hearing the Tribunal has no power to permit him or her to appear.[3]
[3] Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.
It was in this context that the Tribunal proceeded to make a decision without taking further steps to obtain the information or comments from the Applicants.
Sections 359C, 360(3) and 363A of the Act are set out below:-
s.395C
“Failure to give information, comments or response in response to written invitation
(1) If a person:
(a) is invited in writing under section 359 to give information; and
(b) does not give the information before the time for giving it has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the information.
(2) If the applicant:
(a) is invited under section 359A to comment on or respond to information; and
(b) does not give the comments or the response before the time for giving them has passed;
the Tribunal may make a decision on the review without taking any further action to obtain the applicant's views on the information.”
s.360
“Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 359C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”
s.363A
“Tribunal does not have power to permit a person to do something he or she is not entitled to do
If a provision of this Part states that a person is not entitled to do something, or to be assisted or represented by another person, then, unless a provision expressly provides otherwise, the Tribunal does not have power to permit the person to do that thing, or to be assisted or represented by another person.”
The Tribunal’s reasoning is accurately and succinctly set out in paragraph 22 of the First Respondent’s outline of written submissions and is adopted by the Court, as appears below:-
“22. The tribunal correctly recognised that there were three issues before it: whether PIC 4020 applied; whether PIC 4020 should be waived; and whether Ms Kaur had in any event met the assessment criterion. In outline, the Tribunal:
22.1. Reasoned that the information extracted [in paragraph 6 of these Reasons] when given in Ms Kaur’s visa application, was covered by PIC 4020(1) in that it was false and misleading when it was given (PIC 4020(5)(a)), and was relevant to a criteria relevant to the visa, namely the assessment criterion (PIC 4020(5)(b));
22.2. Reasoned, in view of the relationship of agency between Ms Kaur and her former agents, and in light of s 98 of the Act and authorities including Trivedi[4], Vyas[5] and Sran,[6] that the applicant had given, or caused to be given, information of the type covered by PRC4020;
22.3. Accordingly, concluded that Ms Kaur did not meet PIC 4020(1);
22.4. In light of the authorities and Departmental guidance it set out, expressed itself not to be satisfied that waiver of PIC 4020 was justified; and
22.5. Unsurprisingly, given its earlier conclusions, expressed itself to be unable to be satisfied that Ms Kaur met the assessment criterion.”[7]
[4] Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; 220 FCR 169.
[5] Vyas v Minister for Immigration and Citizenship[2012] FMCA 92.
[6] Sran v Minister for Immigration & Anor [2014] FCCA 37.
[7] First Respondent’s Outline of Written Submissions filed on 2 March 2016 at [22].
Consideration
Section 98 of the Act is as follows:-
“Completion of visa application
A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.”
In Trivedi v Minster for Immigration and Border Protection [2014] FCAFC 42 at paragraphs 49 to 50 the Full Court said relevantly as follows:-
“49…It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application. It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so. In many cases that would be impossible and would defeat the apparent intent of the provision.
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.”
As submitted by Counsel for the First Respondent, the Tribunal was plainly correct to conclude that the information provided by the Applicant under the heading “Skills Assessment” when given in her visa application was “purposely untrue”.[8] Such information was relevant to the visa criteria, as it was given in an attempt to satisfy the assessment criterion. The reasoning by which the Tribunal reached this first conclusion was plainly open to it on the evidence before it, and no jurisdictional error attends that finding.
[8] Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 at [54].
The Tribunal was not satisfied that there was no evidence that the Applicant had given or caused to be given to the Minister or an officer of the Department, the Tribunal or a relevant assessing authority information that was false or misleading in a material particular in relation to her application for Skilled (Provisional) (Class VC) visa, as set out in paragraph 40 of the Decision Record. In reaching that conclusion the Tribunal was satisfied of the matters set out in paragraphs 37 to 39 inclusive of the Decision Record, as set out below:-
“37. The Tribunal is satisfied that the information set out in the applicant’s Departmental file regarding S & S Migration, and the links between the business and the applicant’s visa application, together with the advice from TRA, constitute probative evidence that the applicant gave, or caused to be given, to the Minister false or misleading information in a material particular in relation to her visa application.
38. Therefore, while the applicant may not have physically given the application to the Minister, on the basis of the above, and the relevant authorities, the Tribunal is satisfied that through her agent, she gave or caused the information, that is, the false and misleading information that she had a successful TRA skills assessment, to be given to the Minister.
39. Therefore, having considered the applicants circumstances as far as they can be ascertained on the available material, and in the absence of any response by them to the invitation to respond in relation to it, the Tribunal is satisfied, for the purposes of subclause 4020(1), and, having regard to the evidence before it, section 98 of the Act, and the relevant authorities, that the applicant did give, or cause to be given, to the Minister, information that was false or misleading in a material particular in relation to her application for a subclass 485 visa which was lodged with the Department on 6 January 2011.”
No jurisdictional error attends these findings which were open to the Tribunal on the evidence before it.
The Tribunal then went on to consider whether the requirements of PIC 4020(1) or (2) should be waived under PIC 4020(4) and determined, in the exercise of its discretion, they should not. The Tribunal correctly considered the requirements of PIC 4020, the legal authorities that related to it, the Explanatory Statement to SLI 2011, No. 13, and PAM 3, together with any circumstances outside the policy guidelines in this case that would justify the grant of a subclass 485 visa to the Applicants. Having regard to the totality of the evidence before it, the Tribunal was not satisfied there were any such circumstances. That finding was open to the Tribunal on the evidence before it.
The Tribunal then additionally considered whether the First Applicant’s skills had been assessed as suitable for the nominated skilled occupation by the relevant assessing authority as required by cl.485.221 for the grant of the visa and found they had not. That was inevitable on the facts of the matter before it.
The Court concludes there was no jurisdictional error attending the decision of the Tribunal and that there is no merit to this application. The application is dismissed and costs shall follow the event.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 8 April 2016
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