Khader v Minister for Immigration
[2016] FCCA 882
•15 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHADER v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 882 |
| Catchwords: PRACTICE AND PROCEDURE – Conduct of hearing in the absence of the applicant. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.98, 359A, 359C, 360 Migration Regulations 1994 (Cth) |
| Chung v Minister for Immigration [2015] FCA 163 Zhang v Minister for Immigration & Anor [2012] FMCA 1011 |
| Applicant: | ZAHEER ABDUL KHADER |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2141 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 15 April 2016 |
REPRESENTATION
No appearance by or on the behalf of the Applicant
| Solicitors for the Respondents: | Mr Brown of the Australian Government Solicitor |
ORDERS
The name of the second respondent is amended to the “Administrative Appeals Tribunal”.
The application filed 22 October 2014 is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2141 of 2014
| ZAHEER ABDUL KHADER |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 29 September 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant, Mr Khader, a skilled (provisional) (class VC) visa. Background facts relating to this matter are set out in the Minister’s outline of legal submissions.
Background
Mr Khader is a 30 year old Indian national who first arrived in Australia on 14 July 2009 as the holder of a student visa.
An application for a Skilled (Provisional) (Class VC) Subclass Skilled-Graduate 485 visa (the visa) was e-lodged on 9 June 2011.[1]
[1] Court Book (CB) 12, 22
The visa application included a Trades Recognition Australia (TRA) skills assessment reference number, TRA10/97641748, which purported to relate to a successful skills assessment as an automotive electrician, completed on 18 October 2010.[2]
[2] CB 19
Mr Khader’s academic qualification was recorded on the visa application as a Diploma in Automotive Engineering, undertaken at MITT from 23 July 2009 until 7 June 2011.[3]
[3] CB 20
The Minister’s Department sent an e-mail message to the e-mail address nominated in the visa application on 17 February 2012, alleging that the visa application included false and misleading information in relation to the TRA skills assessment, as TRA had confirmed that no successful skills assessment had ever been issued with TRA number TRA10/97641748.[4]
[4] CB 24, 26
The same e-mail invited Mr Khader to comment on the allegation, and to make submissions as to whether there were compelling circumstances relating to the visa application that affected the interests of Australia, or compelling or compassionate circumstances affecting an Australian citizen or a permanent resident, within 28 days. It went on to warn Mr Khader that if he did not reply within the specified period, then the application may be decided without the requested information being taken into account.[5]
[5] CB 25
On 18 April 2012 Mr Khader sent an e-mail from a different e-mail account to that nominated on the visa application asking the Minister’s Department to change his nominated e-mail address.[6] Mr Khader’s request to change his nominated e-mail address included a heading which nominated the unique Transaction Reference Number (TRN) automatically stamped at the foot of each page of the application e-lodged on 9 June 2011.[7] The unique TRN would only have been known by Mr Khader if he had been involved in, or made aware of, the lodgement of the visa application.
[6] CB 44
[7] CB 12, 22
The Minister’s Department received no response to its invitation to comment, and a delegate of the Minister refused the visa application on 6 June 2012 because Mr Khader could not meet Public Interest Criterion 4020,[8] which required that there be no evidence that Mr Khader has given, or caused to be given, a bogus document or information that is false or misleading in a material particular. The delegate found that there was evidence before the Minister that Mr Khader had given, or caused to be given, information that was false or misleading in a material particular.[9]
[8] PIC 4020
[9] CB 34, 39
Mr Khader lodged an application for review by the Tribunal on 26 June 2012, nominating the new e-mail address that he had previously requested the Department to accept as his e-mail contact address, as well as a residential mailing address.[10]
[10]CB 47, 57
The application for review was acknowledged by the Tribunal on 28 June 2012, the letter being sent to Mr Khader’s residential mailing address detailed in the application for review.[11]
[11]CB 58, 59
On 23 April 2014 the Tribunal wrote to Mr Khader at his residential mailing address, pursuant to s.359A of the Migration Act 1958 (Cth) (Migration Act), alleging that TRA had no record of the successful skills assessment that was included in his visa application, reminding him that in order to successfully meet the requirements of PIC 4020, his visa application needed to contain no information that was false or misleading in a material particular, and inviting him to comment within a specified period. Mr Khader was also informed that should he fail to respond to the invitation to comment, then he would lose his entitlement to appear at a Tribunal hearing, and the Tribunal may proceed to make a decision without taking any further steps to seek his comments.[12] Mr Khader failed to respond.
[12]CB 61, 62
Mr Khader’s failure to respond to a letter sent pursuant to s.359A of the Migration Act meant that ss.359C and 360(3) of the Migration Act were enlivened, with the consequence that Mr Khader lost his entitlement to appear before the Tribunal.
The Tribunal then proceeded to make its decision on 29 September 2014, affirming the delegate’s decision to refuse to grant the visa.[13]
[13]CB 76, 82
Tribunal hearing and decision
The Tribunal noted that in circumstances where a s.359A letter was sent but no response was received, the Tribunal had no power to permit an applicant to appear. The Tribunal decided to proceed to make a decision without providing Mr Khader with any further opportunity to comment.[14]
[14]CB 77 [6]
The Tribunal found that the TRA skills assessment reference number, TRA10/97641748, which purported to relate to a successful skills assessment as an automotive electrician, completed on 18 October 2010, constituted information that was false and misleading in a material particular at the time it was given. The TRA had no record of providing Mr Khader with the skills assessment included in the visa application, which was directed at meeting the visa criterion prescribed under clause 485.221, namely that an applicant has a suitable skills assessment at the time of decision.[15]
[15]CB 79 [13]
While TRA was not validly appointed as a relevant assessing authority until after the application was lodged, TRA has subsequently been validly appointed as a relevant assessing authority.[16] The question for the Tribunal was therefore whether, at the time of making its decision, the false or misleading information was relevant to any of the criteria that the decision-maker may consider. The Tribunal was satisfied that the false and misleading information was relevant to clause 485.221, as the TRA skills assessment reference number was relevant to the question of whether Mr Khader had obtained a suitable skills assessment.[17]
[16]Zhang v Minister for Immigration & Anor [2012] FMCA 1011
[17]CB 79 [14]
The Tribunal further found on the materials before it that Mr Khader had given or caused to be given false or misleading information to the Minister or a relevant officer by causing a visa application to be lodged in his name in which such information was included.[18]
[18]CB 79 [13]
The Tribunal was not satisfied that there was no evidence before it that Mr Khader had given or caused to be given false or misleading information to the Minister or a relevant officer information that was false and misleading in a material particular in relation to the visa application, and as a consequence Mr Khader did not meet the requirements of PIC 4020(1), as required by clause 485.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations).
The Tribunal went on to consider whether the requirements of PIC 4020(1) and (2) should be waived. Mr Khader had not provided any submissions in relation to the waiver provisions, and the Tribunal found that as it had no information before it in relation to compelling or compassionate circumstances, there was no basis for waiving the PIC 4020 requirements.[19]
[19]CB 79 [17]
The requirements of clause 485.224 of Schedule 2 were therefore not met, and the visa had to be refused.
Current proceedings
These proceedings began with a show cause application filed on 22 October 2014. There is a narrative statement in handwriting as well as two typed paragraphs under the heading Grounds of Application:
1.An order that the decision of the tribunal or Minister be quashed
2.I am very aggrieved by the decision as it is clearly wrong. My application for Skilled Visa has been rejected by Migration Review Tribunal.
Respected Madam,
I have lodged an application for temporary skilled visa with an migration agent who misguided me and finally could not attach all the required documents for which my application was rejected. I have applied an MRT application and honestly missed the invitation from MRT to comment or respond so I kindly request you to look up in this matter.
Thanking you
The application was supported by an affidavit filed with it which I received as a submission. Mr Khader expands upon his grievances in his affidavit, stating that he came to Australia as a genuine student, and that he had been subject to changes in immigration law, and contending that the Tribunal erred in its decision.
Mr Khader asks the Court to look at his case. He claims he was a genuine student, he had paid lots of money to colleges by taking out a loan, and the lenders would kill him for not paying his debts.[20]
[20]CB 10, 11
I have before me as evidence the court book filed on 26 June 2015.
Procedural orders were made in this matter by a registrar. Mr Khader was given the opportunity to file and serve an amended application and evidence. He has not taken up those opportunities; neither has he augmented the submissions enclosed with his affidavit in accordance with orders made by the registrar. This matter was listed for a final hearing yesterday.
Prior to the scheduled time of the hearing, Mr Khader sent an email to my associate, as well as to the Minister’s solicitor, saying:
Good morning, i zaheer abdul khader with court file no.MLG 2141/2014, is writing to you in regards to my inability to attend the court hearing today at 2:15 PM before JUDGE DRIVER.
This morning, i wake up with a terrible DIARRHEA which prolonged from last evening.
I have been feeling very sick since last night and consulted a doctor this morning. He advice me to get complete bed rest for the next two days.
Please find the attached medical certificate issued by doctor.
My apologies for not being able to be present in the court today.
I will await further instructions from you.
(errors in original)
With that email was included a photograph of a medical certificate from Dr Paul D. Blatt of 177 Inkerman Street, St Kilda, certifying that Mr Khader was medically unfit for work yesterday and today. No medical condition was specified. In the light of that information, I had my associate confirm with Mr Khader that he was available by telephone and, at the outset of the hearing yesterday, he was telephoned on that number. A conversation ensued in which Mr Khader asserted that he was very unwell and would not be able to participate effectively by telephone.
Although I had some doubt about whether Mr Khader was indeed suffering from any medical ailment, I was willing to give him the benefit of the doubt and adjourned the hearing for 24 hours. I warned Mr Khader that no further adjournment would be granted, except on the basis of cogent medical evidence. Earlier this afternoon, Mr Khader sent a further email to my associate and to the Minister’s solicitor in the following terms:
Good afternoon, i zaheer abdul khader with file no.MLG 2141/2014, is writing you in regards to my inability to attend or be contacted by telephone for the court hearing today at 2:15 PM before JUDGE DRIVER.
As i stated in my previous mail i have been infected with diarrhea and took medicine referred by doctor but it is not stopping and my stomach pain is severely increasing with few vomitings in the morning.
I cant afford to call an ambulance to go to hospital for treatment so i am simply lying on my bed in terrible pain and i am mentally disturbed with my sickness due to which i cant answer or defend myself in court before the judge and opposition lawyer.
I sadly knows that no one will care if i die due to this sickness because I am not a permanent resident or citizen of this peaceful lovely warm welcoming AUSTRALIA.anyhow i will get killed once i go back to my home country for not paying the debts which i took to come as a genuine student and pay my college fees so that one day I can also become resident find a good job and then pay all the debts back to my community people.
At the end of the day you are a fair, honourable respected judge so i completely trust,follow,believe and understands all of your orders,laws,decisions and instructions wheather its in or against my favour to grant me another date for hearing.
I will await further instructions from you.
(errors in original)
In the light of that communication, I decided that no useful purpose would be served by attempting to contact Mr Khader further by telephone. The Minister’s solicitor submitted that the matter should not be further adjourned and should proceed. I agree. I have taken into account that no further medical evidence has been provided and that the assertion of serious illness is Mr Khader’s alone. I also take into account that he has not provided anything to the Court additional to his application and supporting affidavit, notwithstanding the express opportunity to do so provided by the registrar’s orders. I have concluded, in the circumstances, that the appropriate course is to proceed to deal with the matter in Mr Khader’s absence.
The grounds of review advanced in the application do not, in my opinion, engage in any meaningful way with the concept of jurisdictional error or, indeed, any legal error. If the matter had been listed in my docket from the outset, I would have been minded to list the matter for a show cause hearing, pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth). The submissions in the accompanying affidavit do not take the issues any further. Indeed, they raise matters which seem to me to be extraneous to the Tribunal decision or, to the extent that they relate in any way to the Tribunal decision, are simply a dispute over the merits of that decision.
The issue of substance relating to the Tribunal’s procedure concerns Mr Khader’s failure to respond to the invitation to comment sent to him. He claims that that failure was an honest mistake but he must thereby be taken to have conceded that he did not respond. The consequences of that non-response were that the Tribunal was not only not required but not permitted to accord Mr Khader an oral hearing. The Minister’s submissions deal with the grounds in the application to the extent that they can be meaningfully responded to.
Mr Khader’s grounds are that he is very aggrieved by the Tribunal decision, which “is clearly wrong”. His migration agent had misguided him, and he had been unable to provide all the required documents, which resulted in the application being rejected.
Mr Khader had “honestly missed the invitation from the Tribunal to comment or respond”.
In an affidavit in support Mr Khader explains that he had come to Australia as a “genuine student and studied with full devotion”. He had paid a lot of fees to colleges and had fulfilled their course requirements, and did not understand why his skilled visa application had been rejected. He wanted to obtain permanent residence and settle in Australia.
He had “detailed all these things” in his Department and Tribunal application, and cannot understand why his application had been rejected.
His request was that the Court should look at his case, see that he had been a genuine student and had paid lots of money to colleges, expenditure that had been financed by taking out loans from different people. If he returned to India he would be killed for not paying back his debts.
He claims to have attached “copies of those cases and the rest of the information that has been supplied to the immigration department and the MRT” to his affidavit in support of his application for judicial review, and asks the Court to uphold his appeal and grant him residence in Australia.
Contentions of law
The invitation to comment or respond had been sent to Mr Khader’s nominated residential address. Mr Khader’s failure to respond to a letter sent pursuant to s.359A of the Migration Act meant that ss.359C and 360(3) of the Migration Act were enlivened, so that Mr Khader lost his entitlement to appear before the Tribunal.
An element of fraud or deception was necessary to engage PIC 4020, and the criterion was “not directed to innocent, unintended, or accidental matters”.[21] Information only fell within the scope of PIC 4020 where it was “false, in the purposely untrue sense of that term”.[22] However, it was not necessary to show a visa applicant was knowingly complicit, and the Tribunal did not need to be satisfied Mr Khader knew the content of the visa application was false or misleading when it was given.[23]
[21] Trivedi v Minister for Immigration [2014] FCAFC 42 [32]-[33] Buchanan J; Allsop CJ and Rangiah J agreeing
[22] Trivedi v Minister for Immigration [2014] FCAFC 42 [32]-[33]
[23] Trivedi v Minister for Immigration [2014] FCAFC 42
In this case, the Tribunal was clearly satisfied that the information about TRA assessment was purposefully untrue. There was evidence before the Tribunal that no successful skills assessment had ever been issued with TRA number TRA10/97641748. The Tribunal was satisfied that the content of the visa application in relation to the skills assessment reference was false and misleading, given the information from TRA that it had no record of the skills assessment reference[24].
[24] See, eg, Chung v Minister for Immigration [2015] FCA 163 [25]
Mr Khader was aware of the visa application lodged in his name because he quoted the unique number of the visa application in the heading of an e-mail sent to the Department prior to the delegate decision being made. Mr Khader would not have known the unique number of the visa application had he not been complicit in the provision of the information contained in the application form.
A person who does not fill in his application form is taken to do so if he causes it to be filled in, or if it is otherwise filled in on his behalf, pursuant to s.98 of the Migration Act. Even if the authorisation of the agent did not specifically cover the inclusion of the information, the applicant is still be taken to have authorised the content of the application.[25]
[25]See SZGJO v Minister for Immigration [2006] FCA 393 [16] and Singh v Minister for Immigration & Anor [2015] FCCA 2776 [54]-[56]
Mr Khader applied for the visa on 9 June 2011. TRA was not a “relevant assessing authority” prior to 11 October 2011, as the instrument specifying TRA as a relevant assessing authority prior to that date was invalid.[26] However, TRA had been validly specified by the time the Tribunal came to make its decision, as the Skilled Occupations, Relevant Assessing Authorities, Countries and Points for General Skilled Migration Visas and Certain Other Visas[27] applied. By reason of that instrument, at the time the Tribunal made its decision, TRA were specified as the relevant assessing authority for the occupation of automotive electrician for a person in Mr Khader’s circumstances.
[26]See Kaur v Minister for Immigration [2014] FCA 281 [20]
[27] Instrument IMMI 12/068
The Tribunal’s finding that it was not satisfied that there was no evidence before it that Mr Khader had given or caused to be given false or misleading information to the Minister or a relevant officer information that was false and misleading in a material particular in relation to the visa application was one that was open to it on the materials. As a consequence Mr Khader did not meet the requirements of PIC 4020(1), as required by clause 485.224 of Schedule 2 to the Regulations.
The Tribunal gave consideration to the exercise of a waiver of the requirements of PIC 4020, but as Mr Khader had not provided any submissions in relation to the waiver provisions, it was open to the Tribunal to find that there was no basis for waiving the PIC 4020 requirements.
Mr Khader’s fear that he would be killed on return to India for not paying his debts was not a matter that was raised with the Tribunal or the delegate.
Conclusions
I conclude that Mr Khader has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed.
I will order that the application filed on 22 October 2014 be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $6,000. I am satisfied that costs in that amount have been reasonably and properly incurred on behalf of the Minister when considered on a party-and-party basis, taking into account the preparatory work done by the Minister’s solicitors and the fact that two hearings were required yesterday and today.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,000.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 20 April 2016
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