Kaur v Minister for Immigration and Border Protection
[2016] FCA 10
•22 January 2016
FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration and Border Protection [2016] FCA 10
Appeal from: Kaur v Minister for Immigration and Border Protection & Anor [2015] FCCA 1368 File number(s): NSD 522 of 2015 Judge(s): SIOPIS J Date of judgment: 22 January 2016 Date of hearing: 6 August 2015 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 37 Counsel for the Appellant: Mr A Kumar Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Sparke Helmore
ORDERS
NSD 522 of 2015
BETWEEN: KIRANDEEP KAUR
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
SIOPIS J
DATE OF ORDER:
22 JANUARY 2016
THE COURT ORDERS THAT:
i. Leave to amend the notice of appeal dated 7 May 2015 is refused.
ii. The appeal is dismissed.
iii. The appellant is to pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
SIOPIS J:
This is an appeal from a decision of a judge of the Federal Circuit Court of Australia delivered on 21 April 2015, dismissing the appellant’s application for judicial review of a decision of the Migration Review Tribunal (the Tribunal).
The appellant is a citizen of India who arrived in Australia on 8 April 2009 on a Student visa.
On 27 April 2011, Mr Jitender Singh on behalf of the appellant, lodged electronically an application with the Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (the department), for a Skilled (Graduate) (Class VC, subclass 485) visa (subclass 485 visa). The appellant, who lived in Sydney, had engaged the services of Mr Singh, who was a Melbourne based migration agent.
It was a requirement for the grant of a subclass 485 visa that an applicant for the visa nominate a skilled occupation and that the appellant’s skills for the nominated occupation had been assessed by the relevant assessing authority as suitable for that occupation.
The visa application lodged on behalf of the appellant, nominated her occupation as a graphic pre-press trade worker and stated that her skills for her occupation had been assessed by Trades Recognition Australia (TRA) on 23 July 2010 with a skills assessment number TRA09/931820664.
On 27 April 2011, the TRA was not the relevant assessing authority to assess the appellant’s skills for her occupation, because it had not by that date been nominated as such by the relevant Minister. That nomination only occurred some five months later on 28 September 2011.
It was also a requirement for the grant of a subclass 485 visa that a visa applicant satisfy Public Interest Criterion (PIC) 4020, which relevantly provides:
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 visa;
the applicant and each member of a 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. (Original emphasis.)
Before February 2012, the department, in the course of an investigation of the affairs of a migration agency carrying on business under the name S & S Migration Services, found a file containing the appellant’s details and visa application reference number on the premises of S & S Migration Services. The investigation was undertaken because that firm had a history of filing visa applications on behalf of its clients which contained false information.
Thereafter, the department inquired of TRA whether it had assessed the appellant’s occupational qualifications and had given the appellant the TRA skills assessment number TRA09/931820664, as claimed in the appellant’s visa application. The TRA reported that there was no record of TRA having made such an assessed claim or of having issued such a TRA skills assessment number.
On 20 February 2012, the appellant was invited to comment on this information.
By a decision dated 10 May 2012, a delegate of the first respondent refused the appellant’s visa application, on the basis that PIC 4020(1) had not been satisfied, in that there was evidence that the appellant had “given, or caused to be given” to the Minister information which was false or misleading in a material respect.
THE TRIBUNAL
The appellant sought a review of the delegate’s decision before the Tribunal.
On 4 July 2013, the Tribunal wrote to the appellant pursuant to s 359A of the Migration Act 1958 (Cth) and advised the appellant that the department’s inquiries indicated that the appellant lodged her visa application with the assistance of S & S Migration Services, which had been found to have lodged visa applications containing false information; and also of the matters set out at 9 above. The Tribunal said that the information may cause it to find that the appellant had “given, or caused to be given” information which was false or misleading in a material respect; and that, therefore, the Tribunal may find that the appellant did not satisfy PIC 4020. The Tribunal invited the appellant to comment upon the information.
In response to the Tribunal’s letter, the appellant forwarded to the Tribunal an affidavit dated 16 July 2013. In this affidavit, the appellant said that she did not meet the migration agent, who lodged the visa application, in person and only contacted him over the telephone, she had not signed any visa application form and she did not know what visa the migration agent had applied for on her behalf.
The relevant hearing took place on 27 August 2013 and the appellant appeared before the Tribunal and gave evidence on that day. At the hearing, the appellant also relied on an earlier affidavit dated 28 August 2012. In that affidavit, the appellant deposed that she had visited “Mr Singh of SnS (sic) Migration Services in Melbourne” and instructed him to lodge her application for a “subclass 485 visa”, and that Mr Singh had taken copies of all her documents and that his fee was $2,500 “to lodge my subclass 485 visa”.
The Tribunal found the appellant’s evidence that she did not know what type of visa the migration agent had applied for on her behalf, to be unconvincing.
The Tribunal found that the appellant had instructed Mr Singh to lodge a subclass 485 visa, had given him documents and had paid Mr Singh’s $2,500 fee. The Tribunal went on to find that the appellant was indifferent as to the contents of the visa application which had been filed by the migration agent on her behalf and was just as responsible for the content of the visa application as the agent.
The Tribunal found that the appellant had given, or caused to be given, to the Minister or an officer information that was false or misleading in a material respect; and found that the appellant did not meet the requirements for the grant of a subclass 485 visa.
THE FEDERAL CIRCUIT COURT
On 19 November 2013, the appellant brought an application for judicial review of the decision of the Tribunal to the Federal Circuit Court. The appellant’s grounds of review were:
1.The Tribunal misconstrued and wrongly applied PIC 4020 in affirming the matter under review.
2.The Tribunal has taken into account an irrelevant consideration.
3.The Tribunal has denied the Applicant procedural fairness.
On 21 April 2015, the Federal Circuit Court heard and dismissed the appellant’s application for judicial review.
THE APPEAL
The appellant filed in this Court a notice of appeal dated 7 May 2015. The notice appears to have been drafted by the appellant without the benefit of legal advice. The grounds of appeal do not disclose any specific error by the primary judge.
At the hearing, the appellant was represented by counsel. Counsel for the appellant did not advance arguments in support of the grounds of appeal, rather counsel applied to amend the grounds of appeal to rely upon the following three proposed grounds of appeal (particulars omitted):
1.The learned trial judge erred (Kaur v Minister for Immigration & Border Protection & Anor [2015] FCCA 1368 at [46]-[50]) in affirming that the information that the applicant gave to Trade Recognition Australia…for the purpose of a skills assessment pursuant to Clause 485 of Schedule 2 of the Migration Regulations was false or misleading in a “material particular” within the meaning of Item 4020 of Schedule 8 of the Migration Regulations (PIC 4020).
2.Her Honour should have found that the MRT applied the wrong test.
3.Her Honour should have found that the RRT denied the Appellant procedural fairness and thereby erred in finding that there was no denial of procedural fairness (Kaur v Minister for Immigration & Border Protection & Anor [2015] FCCA 1368 (at [56]-[61]) and/or breached s 359A of the Act.
It is apparent from the submissions made by the appellant, that the appellant seeks in the three proposed amended grounds of appeal to allege error by the primary judge in respect of grounds of review in terms that were never advanced before the primary judge. This is impermissible save with the leave of the Court.
The first respondent contended that the appellant should not be given leave to advance the proposed amended grounds of appeal. Counsel for the first respondent said that he received sufficient notice of the proposed amended grounds of appeal and that his client is not thereby prejudiced by the amendment application made by the appellant. However, counsel for the first respondent contended that the proposed amended grounds of appeal are devoid of any merit, and for this reason the application to amend the proposed grounds of appeal should be refused, and the appeal dismissed.
For the reasons which follow, the first respondent’s submissions are accepted.
Each of the first and second proposed amended grounds of appeal is based on the contention that it was an error by the primary judge to find that the appellant had given, or caused to be given, information to the Minister or an officer that was false or misleading in a material respect, because at the time the visa application was made, the TRA was not a relevant assessing authority for the purposes of cl 485 of the Migration Regulations 1994 (Cth).
The appellant relied upon the case of Sharma v Minister for Immigration and Multicultural Affairs and Citizenship (2014) 291 FLR 289 (Sharma) in support of these two proposed amended grounds of appeal. However, the position in Sharma was distinguishable from the position in this case, and Sharma does not assist the appellant.
In Sharma the Tribunal found that Mr Sharma, the visa applicant, had in his application to the TRA for a skills assessment, falsely misrepresented to the TRA his work experience for the purpose of obtaining the skills assessment from the TRA.
The Tribunal upheld the delegate’s refusal of Mr Sharma’s visa application, on the grounds that Mr Sharma had failed to satisfy PIC 4020 because Mr Sharma had given, or caused to be given, to a “relevant assessing authority” information that was false or misleading.
However, on review, the Federal Circuit Court set aside the Tribunal’s decision because at the time that Mr Sharma sent the false information to the TRA, it had not been nominated by the Minister as a “relevant assessing authority” in respect of Mr Sharma’s occupation. It followed that giving information to the TRA at that time could not be characterised as giving information to a “relevant assessing authority” for the purposes of PIC 4020(1).
In this case, however, the Tribunal held that the appellant had provided to the Minister or an officer, and not to “a relevant assessing authority”, information which was false or misleading in a material respect in relation to her application for the subclass 485 visa. There is no doubt that the information as to the existence of a TRA assessment and TRA skills assessment number was false or misleading in a material respect within the meaning of PIC 4020(5). This is because it was false and related to an essential criterion for the grant of a subclass 485 visa, namely, the existence or otherwise of a skills assessment.
Accordingly, each of the first and second proposed amended grounds of appeal is misconceived.
The third proposed amended ground of appeal contends that the appellant was denied procedural fairness because she was not put on notice that the Tribunal may find that she had given, or caused to be given, to the Minister or an officer information which was false or misleading in a material respect. There is no substance in this third proposed amended ground of appeal because the appellant was put on notice of this possible finding by the Tribunal’s letter addressed to her of 4 July 2013. The appellant responded to the Tribunal’s letter by filing her affidavit of 16 July 2013 which addressed this issue. However, as mentioned above, the Tribunal rejected the appellant’s evidence in this affidavit.
Further, and in any event, this was the same issue which was dispositive of the appellant’s visa application before the delegate.
Accordingly, there is no merit in any of the three proposed amended grounds of appeal.
As I have mentioned, the original notice of appeal identified no error by the primary judge in the making of the decision to reject the appellant’s application for judicial review of the Tribunal’s decision.
It follows that leave to amend the notice of appeal is refused and the appeal is dismissed with costs.
I certify that the preceding thirty‑seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 22 January 2016
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