Kaur v Minister for Immigration & Border Protection

[2015] FCCA 1368

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1368

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal correctly applied Public Interest Criterion 4020 – whether the Migration Review Tribunal denied the applicant procedural fairness – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 97, 338, 357A, 359A, 359AA, 360, 474
Migration Regulations 1994 (Cth), regs.1.03, 2.01

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Vyas & Anor v Ministerfor Immigration & Anor [2012] FMCA 92
Trivedi v Minister for Immigration at Border Protection (2014) 220 FCR 169

Applicant: KIRANDEEP KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2860 of 2013

Judgment of: Judge Emmett

Hearing date: 21 April 2015

Date of Last Submission: 21 April 2015

Delivered at: Sydney

Delivered on: 21 April 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms Sophie Given (Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2860 of 2013

KIRANDEEP KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 1 November 2013 and handed down on the same date (“the MRT”).

2. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the MRT’s review and decision.

Background

1. On 27 April 2011, the applicant lodged an application for a Skilled (Provisional) (Class VC) subclass 485 (Skilled – Graduate) visa with the (then) Department of Immigration and Citizenship (“the Department”).

2. On 10 May 2012, the Delegate refused the applicant’s application for a subclass 485 (Skilled – Graduate) visa.

3. On 6 June 2012, the applicant lodged an application for review of the Delegate’s decision by the MRT.

4. On 25 September 2012, a differently constituted Migration Review Tribunal found that it did not have jurisdiction to review the applicant’s case on the basis that the applicant’s application for review was made outside the 28 day time limit pursuant to the Act.

5. On 12 April 2013, the matter was remitted by consent to the MRT by order of Judge Driver.

6. On 1 November 2013, the MRT affirmed the decision of the Delegate not to grant a subclass 485 (Skilled – Graduate) visa.

7. On 19 November 2013, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. A primary criteria to be met in respect of a Skilled (Provisional) (Class VC) visa at the time of application was cl.485.221 of Schedule 2 to the Regulation, which requires that an applicant’s skills have been assessed as suitable for a nominated skilled occupation. Relevantly, clause 485.221 is as follows:

   “485.221   (1)  The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.”

3. Regulation 1.03 of the Regulations states the meaning of “skilled occupation”.

4. Relevantly, cl.485.224 of Schedule 2 to the Regulations requires that an applicant meet Public Interest Criterion 4020 (“PIC 4020”). PIC 4020 is contained in Schedule 4 to the Regulations, and is as follows:

   “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 application;

   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).

   (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 particularmeans 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.”

5. Section 97 of the Act defines “bogus document” as:

   “…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.”

6. Under s.338 of the Act, a decision to refuse to grant a Skilled – Graduate (subclass 485) visa is a decision which may be reviewed by the second respondent.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 includes ss.359A and 360, which provide that:

   “359A Information and invitation given in writing by Tribunal

   (1) Subject to subsections (2) and (3), the Tribunal must:

   (a) give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   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.”

8. Section 359AA of the Act permits the MRT to give orally to an applicant clear particulars of any information that the MRT considers would be the reason or part of the reason for affirming the decision under review. The MRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The MRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

9. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. On 20 February 2012, the Delegate wrote to the applicant by email stating that a file with the applicant’s personal details had been found in the office of the business known as “S&S Migration”.

2. S&S Migration had been found to have lodged applications with the Department containing false and misleading information. Critically, the Department had referred the applicant’s claimed skills assessment to Trades Recognition Australia (“TRA”), which stated that it had no record of ever providing the applicant with any skills assessment at any time.

3. The Department’s email stated that it appeared that the applicant had lodged his visa application with the assistance of S&S Migration.

4. The Delegate informed the applicant that it was of the opinion that the applicant had provided false and misleading information to the Department in relation to his visa application.

5. The email provided the applicant 28 days in which to comment or respond to the allegations, although no response was received.

6. On 10 May 2012, the Delegate refused the applicant’s application for a subclass 485 (Skilled – Graduate) visa on the basis that the applicant had given or caused to be given information that was false and misleading in a material particular in relation to her visa application and thus failed to meet PIC 4020.

The MRT’s review and decision

1. On 7 June 2012, the applicant lodged an application for review of the Delegate’s decision by the MRT.

2. The MRT noted that the applicant lodged an application for a subclass 485 (Skilled – Graduate) visa on 27 April and indicated in that application that she had a skills assessment from the TRA, dated 23 July 2010.

3. The MRT noted that the Department noted that the applicant’s application was lodged with the assistance of S&S Migration, who had been found to have lodged a number of applications with the Department containing false or misleading information. Following inquiries, the Department discovered that the TRA did not have any records of the applicant’s assessment. Subsequently, on 4 July 2013, the MRT wrote to the applicant pursuant to s.359A of the Act seeking her comment on or responses to the information.

4. The applicant responded by way of affidavit dated 16 July 2013, stating that soon after completing her diploma in April 2011, she came to know of a migration agent in Melbourne who was arranging work permits and that she had arranged for him to obtain a work permit for her. She claimed that she was not aware of what subclass of visa he had lodged on her behalf. She said that she had never signed an application seeking an assessment by the TRA, that she had not met the migration agent in person and that she discovered that her visa application had been refused when she checked online in June 2012.

5. At the hearing before the MRT on 27 August 2013, the applicant confirmed the information that she had given in her affidavit of 16 July 2013.

6. However, due to a subsequent affidavit lodged by the applicant dated 28 August 2012, the MRT did not accept that the applicant was not aware that she was applying for a subclass 485 (Skilled – Graduate) visa. The MRT noted that it raised the inconsistency in the applicant’s evidence with her at a hearing and the applicant responded that her affidavit, dated 28 August 2012, was prepared on her instructions but that she did not really read it and just signed it. She maintained that she was unaware that she had applied for a subclass 485 (Skilled – Graduate) visa.

7. However, the MRT found that explanation to be inconsistent in with her evidence, particularly if the affidavit dated 28 August 2012 was prepared on her instructions and she was informed of its contents before she signed it. The applicant had told the MRT that her migration agent had told her what was in the affidavit. The MRT found that the applicant’s evidence to the MRT that she was not aware of what type of visa she applied for, was unconvincing and did not accept that the applicant genuinely believed that her migration agent had applied for a work permit.

8. The MRT found that the applicant instructed the migration agent to make an application for a 485 (Skilled – Graduate) visa, provided him with copies of documents and paid him $2,500 to do so, as stated in her affidavit dated 28 August 2012.

9. The MRT found that the visa application lodged on 27 April 2011 was valid. The MRT found it of significance that the applicant instructed a migration agent in Melbourne when she lived in Sydney and that the applicant wished to instruct an Indian migration agent, had the ability and resources to do so and could have instructed an Indian migration agent in Sydney. The MRT found that the applicant instructed Mr Singh in Melbourne because she wished to obtain a 485 (Skilled – Graduate) visa, which would eventually lead to permanent residence and that she was not too particular how she obtained it.

10. The MRT noted that the applicant gave evidence before it that she did not apply for a TRA assessment and was not aware that her migration agent had stated that she had done so in the visa application. The applicant told the MRT that she did not ask Mr Singh for a copy of the visa application. The MRT found this conduct showed little concern for the contents of her visa application and her interest was primarily in the outcome of her application. The MRT found that the applicant is just as responsible for the contents of her visa application when she was indifferent to its contents as when she knowingly provides information that is false or misleading.

11. The Tribunal referred to Vyas & Anor v Ministerfor Immigration & Anor [2012] FMCA 92 (“Vyas”) in finding that for the purposes of PIC 4020, it is not necessary for the information that is false or misleading to have been provided knowingly or unwittingly. The MRT noted that the visa application lodged on 27 April 2011 contained the bogus skills assessment from TRA and that the information on the application was false or misleading at the time it was given. The MRT found that the applicant gave, or caused to be given, to the first respondent information that was false or misleading in a material particular in relation to the application for the 485 (Skilled – Graduate) visa and that accordingly the applicant did not meet the requirements of PIC 4020(1).

12. The MRT then went on to consider whether PIC 4020(1) should be waived and noted that, pursuant to PIC 4020(2), it may be waived where there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

13. The MRT wrote to the applicant on 4 July 2013 enclosing a copy of PIC 4020 and invited the applicant to comment or respond. The MRT noted that the applicant did not make any claim in relation to PIC 4020(4) in her affidavit dated 16 July 2013.

14. The MRT was not satisfied on the evidence before it that there were compelling circumstances in the light of the evidence before it that affect the interests of Australia or that there were compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. Accordingly the MRT determined not to waive the requirements of PIC 4020(1).

15. In the circumstances, the MRT found that the applicant had not satisfied PIC 4020 for the purposes of cl.485.224 of Schedule 2 to the Act and did not otherwise have an assessment of her skills for the nominated skilled occupation from a relevant assessing authority and therefore did not meet the requirements of cl.485.221 of Schedule 2 to the Act. In circumstances where the applicant did not satisfy the criteria for the grant of a 485 (Skilled – Graduate) visa, the MRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Punjabi interpreter.

2. The applicant confirmed that she had not filed any other document in support of her application, despite having been directed to do so on 5 March 2014 when she was given leave to file and serve an Amended Application, any further evidence and submissions in support of her application.

3. When I asked the applicant if she had any other documents to provide to Court his morning, the applicant handed the Court a recent newspaper report about her former migration agent, S&S Migration Services, which was critical of that entity. Tender of the article was objected to by the solicitor for the first respondent, Ms Given, on the grounds of relevance. As stated above, the MRT itself noted that the S&S Migration had been found to have lodged a number of applications with the Department containing false or misleading information. Accordingly the tender was rejected on the grounds of relevance.

4. The applicant confirmed that she relied on the grounds contained in her originating application filed on 19 November 2013 as follows:

   “1. The Tribunal misconstrued and wrongly applied PIC 4020 in affirming the matter under review.

   Particulars

   In circumstances where a migration agent has been fraudulent by producing and providing a bogus TRA assessment, the Applicant did not give or cause (as required by PIC 4020) that document to be given to the Minister.

   2. The Tribunal has taken into account an irrelevant consideration

   Particulars

   It is irrelevant that the Applicant (who lives in Sydney) engaged the services of a migration agent in Melbourne.

   3. The Tribunal has denied the Applicant procedural fairness.

   Particulars

   To the extent to which the Tribunal (expressly or by implication) found that the Applicant had participated in or authorised the agent’s fraudulent conduct, that allegation was not directly put to the Applicant”

5. Each of the grounds was interpreted for the assistance of the applicant and the applicant was invited to make submissions in support of each of the grounds and in support of the application generally.

6. Ground 1 asserts that the MRT misconstrued or wrongly applied PIC 4020 in affirming the decision under review, where the migration agent had been fraudulent by procuring and providing a bogus TRA assessment and that the applicant had not caused that document to be given to the Minister.

7. I asked the applicant if there was anything further she had to say in support of that ground. The applicant made various inconsistent statements about her conduct in the past. She first told the Court that she had never signed any documents. She then told the Court that she had never instructed the migration agent to lodge a 485 (Skilled – Graduate) visa and had only ever instructed and sought a work permit. However, the applicant confirmed that the information that was provided in the affidavit dated 28 August 2012 was signed by her and clearly acknowledges that she gave instructions for the lodging of a 485 (Skilled – Graduate) visa. Otherwise the applicant had nothing relevant to say in support of ground 1.

8. It is now well established that visa applicants are ultimately responsible for the truthfulness of the information and documents they supply to support their applications (see Trivedi v Minister for Immigration at Border Protection (2014) 220 FCR 169 at [49] (“Trivedi”)). Trivedi was consistent with Vyas, the case referred to by the Tribunal, and in the circumstances it is not necessary that the applicant knew that the TRA information was false or misleading when she proffered it.

9. It was open to the MRT to find that the applicant had given instructions to lodge a 485 (Skilled – Graduate) visa. In the circumstances, the MRT’s finding that the information contained in the visa application contained a bogus document, was open to it on the evidence and material before it and for the reasons it gave.

1. Accordingly, ground 1 is not made out.

2. In Ground 2, the applicant asserts that the MRT took into account an irrelevant consideration, namely that she engaged the services of a migration agent in Melbourne when she lived in Sydney.

3. Even if the applicant was to establish that it was not a relevant consideration for the MRT, that does not establish jurisdictional error on the part of the MRT. However, it is for the MRT in assessing the evidence before it to determine the weight it gives the evidence.

4. The MRT found that it was significant that the applicant instructed a migration agent in Melbourne when she lived in Sydney and when she had the resources and ability to instruct an Indian migration agent in Sydney. The MRT found that by instructing the migration agent, Mr Singh, that she did so because she wished to obtain a 485 (Skilled – Graduate) visa, which would ultimately lead to permanent residence, and that she was not too particular how she obtained it. The applicant told the MRT that she did not ask her migration agent for a copy of the visa application. The MRT found that the applicant showed little concern for the contents of her visa application and her interest was primarily in the outcome of the application. That finding was open to the MRT on the evidence and materials before it and for the reasons it gave.

5. To the extent that instructing S&S Migration Services may have served her purposes, it is a fact that the MRT was entitled to have regard to and place weight upon.

6. Accordingly ground 2 is not made out.

7. Ground 3 asserts that the MRT denied the applicant procedural fairness by finding that that the MRT had participated in or authorised the migration agent’s fraudulent conduct and that the allegation was not directly put to the applicant. A fair reading of the MRT’s decision does not suggest that the MRT made any finding that the applicant was involved in the actual fraudulent conduct. The MRT correctly found that PIC 4020 applied to the applicant, whether or not she was knowingly or unwittingly providing the information.

8. As stated above, the MRT found that the applicant had been indifferent and showed little concern for the contents of her visa application. The MRT found that the applicant’s primary concern was the outcome of the application, as she wished to remain permanently in Australia.

9. In relation to the applicant’s allegation of a denial of procedural fairness, I note, that the applicant was given for comment the information that her application contained false and misleading information insofar as it purported to be supported by a TRA skills assessment, of which there was no record.

10. Section 357A of the Act states that Division 5 of Part 5 of the Act is an exhaustive statement of the natural justice hearing rule. There is no evidence before this court to suggest that the MRT other than complied with Division 5 of Part 5 of the Act in the conduct of its review and the provision of its decision record.

11. The MRT made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.

12. In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

13. The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

14. The proceeding before this Court should be dismissed with costs.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date:  25 May 2015