Khan v Minister for Immigration
[2010] FMCA 546
•16 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KHAN & ORS v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 546 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of a skilled residence visa – Tribunal finding that a trade skills assessment preceding the visa application was made on the basis of false material – interpretation of clause 880.230 relating to false or misleading information – 900 hours work experience requirement is a requirement of the skills assessment authority not the Tribunal and the relevant time for the purposes of deciding whether false or misleading information was given to obtain a skills assessment is the time of the skills assessment. |
| Migration Act 1958 (Cth), s.20 Migration Regulations 1994 (Cth) |
| Berenguel v Minister for Immigration (2010) 264 ALR 417 Islam v Minister for Immigration [2010] FMCA 379 Minister for Immigration v Dela Cruz (1992) 110 ALR 367 Talukder v Minister for Immigration [2009] FMCA 223 Talukder v Minister for Immigration [2009] FCA 916 |
| First Applicant: | MOHAMMAD SAIFUR RAHMAN KHAN |
| Second Applicant: | MANZIR YASMIN EMON |
| Third Applicant: | MARZUQ RAHMAN KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 819 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 26 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 16 August 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 819 of 2010
| MOHAMMAD SAIFUR RAHMAN KHAN |
First Applicant
MANZIR YASMIN EMON
Second Applicant
MARZUQ RAHMAN KHAN
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 17 March 2010. The Tribunal affirmed decisions of a delegate of the Minister not to grant the applicants Skilled Independent Overseas Student (Residence) visas. The substantive visa claims were made by the first applicant (Mr Khan) and references to the “the applicant” are references to him. The following statement of background facts is derived from the parties’ written submissions.
On 15 May 2007, the applicant lodged an application with the Department of Immigration and Citizenship (“Department”) for a Skilled – Independent overseas Student (Class DD) (Subclass 880) visa (court book “CB” 1-18). Attached to this application, relevantly, was:
a)a letter from the China Town Restaurant dated 20 March 2007 (CB16-18). The applicant told officers of the Department, and later the Tribunal, that he was not aware of this letter and his agent had lodged this document without recourse to him. The Tribunal did not explicitly reject these allegations;
b)a copy of an application to Trades Recognition Australia (“TRA”), for assessment of his skills in respect of the occupation of cook (CB43-46);
c)a letter from the Department of Employment and Workplace Relations (“DEWR”) dated 16 April 2007 advising the applicant of a successful TRA assessment in respect of the occupation of cook (CB19-20).
On 18 June 2008, the applicant was interviewed by Departmental officers in relation to the documents submitted in support of his review, including the China Town Restaurant letter. The applicant said that he had not seen the documents that were submitted to TRA or the Department, that he had never worked at China Town Restaurant, and that the signatory of the letter worked for his agent. He had signed what the agent gave him to sign (CB 71.1). The applicant also provided a detailed description of his work history, including work from May/June 2006 at the Happy Chef and from September 2006 to June 2007 as a chef with the Summit Restaurant (CB 112.3).
On 20 October 2008, a delegate of the Minister notified the applicant of its decision to refuse the application for a visa (CB 69-72). The critical finding is as follows:
... I find that the 900 hours of work experience claimed to support your application to the TRA to obtain your skills assessment is not supported by the investigation into your employment claims and interview with you. I am not satisfied that the employment information provided to TRA to obtain your skills assessment as a Cook (ASCO 4531-11) is genuine. I am therefore not satisfied that you meet Regulation 880.224 as I am not satisfied that information provided to meet the requirements of Item 1128CA of Schedule 1 of the Migration Regulations for this visa application is not false or misleading in a material particular.
Application to the Tribunal
On 30 October 2008, the applicant through his agent applied to the Tribunal for merits review of the decision of the delegate (CB 73-81).
On 3 November 2009, the Tribunal wrote to the applicant and invited comment on a number of matters and invited the applicant to provide further information (CB 111-113). In essence, the Tribunal put to the applicant the information comprising the Departmental officers’ investigations into the existence of China Town Restaurant, and the applicant’s responses at interview.
On 30 November 2009, the applicant’s representative wrote to the Tribunal (CB 114-115). He:
a)reiterated what the applicant had previously told the Department, namely that he had no knowledge of the reference from “China Town Restaurant” and that his agent had put this forward without recourse to him;
b)referred to the lodgement of a further TRA application based on correct employment experience; and
c)enclosed a copy of the further application to TRA dated 9 September 2009 (CB 118-206), together with TRA’s response (being that it would not reassess the application because the applicant had already received a successful skills assessment) (CB 117).
On 7 December 2009, the Tribunal invited the applicant to a hearing before it (CB 208-201), which the applicant attended and at which he gave evidence (CB 214-5; Tribunal decision at [33]-[39]). At the hearing on 19 January 2010, the applicant recounted having informed his agent of his work experience, among other things, at the Summit restaurant.
On 11 March 2010, the applicant’s agent sent the Tribunal a letter enclosing a PAYG summary in respect of his employment with Trippas White Catering (CB 217-218).
On 17 March 2010, the Tribunal decided to refuse the application to it (CB 226-235).
The Tribunal’s decision
The Tribunal’s findings and reasons are recorded at [43]-[54] (CB 232-234).
The Tribunal found that China Town Restaurant work reference was false and misleading, on the basis of the applicant’s evidence that he had never worked at the restaurant ([45] (CB 232-233)).
The Tribunal then considered whether it was false or misleading in a material particular:
a)it referred to Minister for Immigration v Dela Cruz (1992) 110 ALR 367, which considered the meaning of “false in a material particular” in the context of s.20 of the Migration Act 1958 (Cth) (“the Migration Act”). (It is noted that this provision no longer exists, but essentially was a provision which worked in conjunction with s.14 as it then was, which together provided that persons entering Australia in reliance on statements which were false or misleading in a material particular were deemed to be illegal entrants);
b)the Tribunal then stated that the China Town Restaurant letter was relevant to TRA’s assessment as to whether the applicant had the requisite 900 hours of work experience and the China Town Restaurant letter was false and misleading in a material particular ([48]-[49] (CB 233));
c)the Tribunal also considered the applicant’s evidence concerning his correct work reference history, including his work at the Summit restaurant, and concluded that as at the date of the application to TRA, he did not have the 900 hours work experience. This was relied upon in its conclusion that the China Town Restaurant letter was false and misleading in a material particular ([49]-[53] (CB 233-234)) and, therefore, the applicant did not satisfy clause 880.230 of Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) ([54] (CB 234)).
The only subclass of the visa class at the time of application for the visa was Subclass 880 (Skilled - Independent Overseas Student): CB 227 [6]. As the applicant did not satisfy clause 880.230 the visa had to be refused: see s.65(1)(b) of the Migration Act.
The application
Mr Khan relies upon his original show cause application filed on 14 April 2010. The single ground in that application is:
1. The Tribunal misconstrued and misapplied the applicable law, thereby committing jurisdictional error by failing to apply the applicable law to the facts.
Particulars
The Tribunal misconstrued and misapplied clause 880.230 of Schedule 2 of the Migration Regulations 1994 (Cth).
The evidence and submissions
I received as evidence the court book filed on 11 May 2010.
The applicant contends that the Tribunal fell into error in three respects:
a)first, it asked itself the wrong question by asking itself whether, at the time of the TRA application, the China Town Restaurant letter was false or misleading in a material respect. Rather, the question it was to ask was whether, as at the time of the Tribunal decision the China Town Restaurant letter was false or misleading in a material respect. Had it adopted this approach, it may have concluded that, as the applicant had 900 hours of work experience at the Summit (see CB 152), the China Town Restaurant letter was not false or misleading in a material respect;
b)secondly, the Tribunal foreclosed itself from considering information relevant to the applicant’s work experience, and therefore the materiality of the China Town Restaurant letter, that post dated the TRA application. This was contrary to the correct approach to the legislation, which required the Tribunal to have regard to the most up to date information as at the time of its decision (absent a clear statutory intent to the contrary), for the reasons enunciated in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 and Berenguel v Minister for Immigration (2010) 264 ALR 417;
c)thirdly, the Tribunal committed jurisdictional error by construing clause 880.230(1) as not requiring knowledge of the China Town Restaurant letter being false or misleading. It directed itself to Dela Cruz and the s.20 interpretation of the relevant phrase but, in view of the absence of s.20(12) from clause 880.230(1), that line of authority on the issue was not directly applicable. Accordingly, it failed to apply the applicable law and ask itself whether the applicant knew that the China Town Restaurant letter was false or misleading.
The applicant submits that none of the authorities on the interpretation of clause 880.230 are relevant. The applicant refers to authorities dealing with the meaning of false or misleading in a material particular in s.20 of the Migration Act but makes the following distinguishing submissions:
a)first, unlike clause 880.230(1), s.20 is not conditional upon the state of mind of the decision maker but, rather, is a jurisdictional fact. This point was made explicit by Gummow J in Devi v Minister for Immigration (unreported, 28/7/1993, BC9304972). The significance of this is that the question of whether a matter is false or misleading in a material particular in s.20 cases is a question of fact for the Court to determine whereas, in contrast, in respect of clause 880.230(1) the question is for the Tribunal rather than the Court. Rather, the Court is to ask itself whether there was any jurisdictional error on the part of the Tribunal in concluding that the information in question was false or misleading in a material particular;
b)secondly, unlike s.20, clause 880.230(1) is a time of decision criterion. Thus, the question posed by cl. 880.230(1) is whether, at the time of the Tribunal’s decision:
A relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, and no evidence has become available that the information given or used as part of the assessment of the applicant's skills is false or misleading in a material particular.
The question of the materiality of the statement said to be false or misleading is therefore asked as at the time of the Tribunal’s decision, not any other time;
c)thirdly, and flowing from the last point, in asking itself this question the Tribunal should have regard to the most recent up to date information available at the time of decision. This is consonant with the principles expressed in:
i)Shi v Migration Agents Registration Authority, in which the High Court referred to the presumption that an administrative appeal should be determined by reference to material available at time of decision. As stated by Hayne and Heydon JJ at [99]:
Once it is accepted that the tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation.
See also Kirby J at [41], [46]-[47], [49], [51]; Kiefel J at [143] for comments to similar effect.
ii)Berenguel v Minister for Immigration, in which the High Court adopted a construction of a criterion under the “time of application” heading and concluded that it could be satisfied up to the time of decision, particularly having regard to the Migration Act providing for the Minister to have regard to up-to-date information ([26] per French CJ, Gummow and Crennan JJ);
d)fourthly, a significant difference between s.20 and clause 880.230(1) is the omission from the latter of any words similar to s.20(12) (emphasis added):
A reference in this section to a person making, or causing to be made, a statement that was a false or misleading in a material particular is a reference to a person making, or causing to be made, such a statement, whether or not the person knew that the statement was false or misleading in a material particular.
The Minister relevantly submits as follows:
The Applicant’s Submissions … claim that the Tribunal committed three jurisdictional errors.
First, it is claimed that the Tribunal did not ask whether as at the time of its decision the work reference was false or misleading. There is no basis for this allegation. There is nothing to indicate that the Tribunal did not consider the issue as at the time of its decision. The evidence that the Applicant had given the Department that he had not worked at China Town Restaurant was confirmed by him in his response to the Tribunal’s s 359A letter (CB 114-115). The Tribunal refers to this at CB 230 [28] and plainly had it in mind at CB 232-233 [45]. The claim that the Tribunal did not decide the matter as at the date of its decision is therefore wrong.
Secondly, it is claimed that the Tribunal did not have regard to recent evidence in finding the work reference false or misleading. Again, this is wrong. As already stated, the Tribunal took into account the evidence before it on the issue, including the Applicant’s response to its s 359A letter. The Applicant’s recent work experience was not relevant to whether the work reference was false and misleading. As the Tribunal explains at CB 233 [48], the work reference claimed that the Applicant had 900 hours work experience at a restaurant when this was untrue. It was put to the TRA as a statement verifying the Applicant’s false claim that he had worked at China Town Restaurant as a cook from March 2006: CB 45, and the Applicant did not submit any other evidence of work experience to the TRA. The work reference was therefore false and misleading in a material particular because it was relevant to applying to the TRA for a skills assessment, and indeed asked for on the form: MILGEA v Dela Cruz (1992) 34 FCR 348 (FC) at 352-354. The Applicant’s recent work experience could have no relevance to the assessment of whether the information given and used by the TRA was false and misleading in a material particular: Islam v MIAC [2010] FMCA 379 (Driver FM) at [33]
Finally, it is claimed that cl 880.230(1) requires that the Applicant be aware that the information given is false or misleading. Cl 880.230(1) contains no such requirement. If an Applicant’s knowledge or intention was relevant to cl 880.230(1) then the criteria would have said so. This is supported by Dela Cruz at 352 where the Court stated that it was “not necessary….to consider whether the false statements were made deliberately”.
Reasoning
Clause 880.230(1) is a criterion which must be satisfied at the time of decision. It provides:
A relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, and no evidence has become available that the information given or used as part of the assessment of the applicant's skills is false or misleading in a material particular.
The Tribunal dealt with that criterion in the following terms (CB 232-234):
In order to determine whether the primary applicant satisfies the criteria in clause 880.230, the Tribunal is restricted to information that has been given or used as part of the assessment by the relevant assessing authority, in this case the TRA, in assessing the skills of the applicant for his nominated skilled occupation.
On 21 October 2009, the Tribunal was provided with a copy of the information provided to TRA in relation to the primary applicant’s skills assessment dated 16 April 2007. The documents included a copy of the primary applicant’s Certificate III in Hospitality Commercial cookery awarded on 29 December 2006. Also provided was a copy of the Restaurant work reference. In the TRA application the primary applicant stated he had 900 hours work experience. At the interview held on 18 June 2008 with Departmental officers the primary applicant stated that he had never seen the Restaurant work reference before and he had never worked at the China Town Restaurant. In the response it was submitted that the primary applicant gave his documents to his former agent and he expected that the documents together with the application form the primary applicant had signed would be submitted to TRA. Further, the primary applicant was unaware what was given to TRA and did not authorise his former agent to submit false documents to TRA.
On the primary applicant’s admission that he never worked at the China Town Restaurant the Tribunal finds that the Restaurant work reference is false. The Tribunal also finds that the Restaurant work reference is misleading as they indicate that the primary applicant has work experience at the China Town Restaurant which he did not.
The Tribunal has to determine if the Restaurant work reference was given and used for a skilled assessment by the TRA and was false or misleading in a material particular. In light of the information from TRA the Tribunal finds that the Restaurant work reference was given and used as part of the assessment of the primary applicant’s skills
The Full Federal Court in the Dela Cruz matter considered the phrase in the context of section 20(1) of the Act. Case law from England and Australia was referred to and at 352 the Full Court stated:
The term “material” requires no more or no less than that: the false particular must be of moment or significant, not merely trivial or inconsequential.
Section 20(1) does not apply to statements that are merely false or misleading; there is the added requirement that the statement be false or misleading in a material particular…a statement will be false and misleading in a material particular if it is relevant to the purpose for which it is made…
What was relevant, that is material, to TRA when it assessed the primary applicant’s nominated skilled occupation was the primary applicant’s educational qualifications and his work experience. The relevant work experience, as discussed with the primary applicant at the hearing, included 900 hours of work experience and, therefore, the Tribunal finds that the Restaurant work reference was a material particular. In light of all of the above findings the Tribunal also finds that the Restaurant work reference was false and misleading in a material particular.
The Tribunal has also considered if the information is false and misleading in a material particular in light of the primary applicant’s claims that he had, during the relevant period up to 3 April 2007 when the application for the assessment was lodged, been employed as a Cook by the Summit Restaurants and Trippas White.
The primary applicant claimed at his interview on 18 June 2009 that he had given his then agent a reference from the Head Chef at the Summit, David Greenhill. In its letter of 30 November 2009, the Tribunal requested a copy of this reference. The reference letter provided to the Tribunal was not the requested reference but a reference from Ms Hicks the former HR Manager for the Summit Restaurant. This reference was included in the material provided to TRA in relation to the second TRA application. The primary applicant at the hearing stated he did not have the original reference from the head chef of the Summit Restaurants as he had given it to Mr Yu and it was part of the documents seized by the Department. The Tribunal made enquires of the Department and was informed that the only employment document of the applicant the Department held was the Restaurant work reference. The primary applicant also stated at the hearing that he obtained the reference from Ms Hicks in July 2008 as he had an interview with the Department and was told that he needed a work reference. The primary applicant’s representative in the letter dated 11 March 2010 stated that the applicant has not been able to locate other evidence of his claimed work experience, therefore, the Tribunal has not been provided with a copy of the work reference from the head chef of the Summit Restaurants.
As set out above and discussed with the primary applicant at the hearing that one of requirements in relation to a skills assessment is 900 hours work. The Tribunal stated the Employment Summary provided to the Tribunal indicated that up to and including 3 April, he only worked a total of 682.4 hours. The Tribunal stated that this is important as it indicates that the primary applicant did not work 900 hours and the applicant stated that he worked at another restaurant and he gave those documents as well. The Tribunal also raised the issue of annual leave which appeared on the provided payslips for his work at the Summit Restaurants. For example, in relation to the pay slip dated 24 April 2007 the Tribunal asked if the primary applicant worked 49 hours or 53.05 hours, that is the annual leave was just an extra payment and the applicant stated he worked 53.05 hours. The issue is not clear, however, even if the annual leave hours are accepted as being hours worked by the primary applicant, he still did not work 900 hours at the Summit Restaurants up to and including 3 April 2007.
At the hearing the Tribunal asked which other company he worked for and the primary applicant stated Trippas White, which was a catering company providing catering at the Art Gallery. He started his training from May 2006 for 2 or 3 months when he joined the Summit Restaurants in October 2006. The primary applicant stated that he started as a kitchen hand and then moved to decoration. The Tribunal asked what were his hours and the primary applicant stated he cannot remember but he gave Mr Yu all of his documents and he calculated it in front of him and stated that it was alright. The PAYG summary provided to the Tribunal did not indicate what position the primary applicant was employed in by Trippas White, however, on the primary applicant’s statements at the hearing the Tribunal finds that the primary applicant was not employed as a Cook. Therefore, the primary applicant’s employment with Trippas White would not be relevant to the primary applicant’s skills assessment by TRA as TRA was assessing his skills in relation to being a Cook. Even if the Tribunal was to accept that the primary applicant’s work at Trippas White was in relation to the occupation of a Cook, which it does not, the PAYG summary indicates that the primary applicant only earned $1,209 in the 6 month period from 30 October 2006 to 12 April 2007. Unfortunately the PAYG summary does not indicate the hours the primary applicant worked or his hourly rate of pay. The primary applicant’s weekday rate at the Summit Restaurants was $16.3873 and, even if the Tribunal was to use an amount less that that such as $10 an hour, that would indicate that the primary applicant only worked around 120 hours for Trippas White. On that basis the primary applicant would still have not achieved 900 hours work experience as adding 120 hours of work at Trippas White to the hours worked by the primary applicant at the Summit Restaurants of 682.4 would still only be 802.4.
For all of the above reasons the Tribunal is not satisfied that the primary applicant had 900 hours of work experience as a Cook up to the day he lodged the TRA assessment application on 3 April 2007.
The “requirement” to have 900 hours of work experience is not a visa requirement. It was a requirement of TRA for the purposes of its skills assessment. The relevant visa requirement was to have a skills assessment that was not based on false or misleading information. Accordingly, the Tribunal was correct to focus on the information provided to TRA. The issue of relevance for the purposes of clause 880.230 is not whether, at the time of the Tribunal decision, the applicant had accrued 900 hours of work experience but, rather, whether TRA was, in substance, misled. I dealt with this issue in Islam v Minister for Immigration [2010] FMCA 379 at [33] where I said:
It may well have been that Mr Islam had in fact completed 900 hours of work experience as a cook by the time the Tribunal made its decision. The Tribunal’s decision was that evidence had become available that the information relied upon by TRA in its assessment was false or misleading in a material particular. The Tribunal’s conclusion was open to it on the material before it. Mr Islam was required by the criteria relied upon by TRA to have completed 900 hours of relevant work experience at the time of the TRA assessment. It did not matter whether he had accumulated 900 hours of relevant work experience by the time of the Tribunal’s decision. I find no error in the Tribunal’s assessment that material relied upon in persuading TRA to review its assessment was false or misleading in a material particular.
I have not changed my opinion.
Clause 880.230 is in materially the same terms as 880.224 that I considered in Talukder v Minister for Immigration [2009] FMCA 223. In that case, Mr Talukder challenged the validity of the clause on the basis that, in its terms, the clause required that a visa be refused if there was any evidence whatsoever of false or misleading information having been provided, without discrimination as to the source, plausibility, reliability or strength of such evidence. I rejected that contention at [18]-[21] where I said:
I reject the applicant’s contention that the clause compels the rejection of a visa application if any evidence whatsoever becomes available of false or misleading information having been provided. The evidence must point to information having been false or misleading in a “material particular”. That goes to both the strength of the evidence and its relevance. An intellectual process is required from the decision maker as to whether the evidence available points to the information having been false or misleading in a material particular.
The word “evidence” is undefined in the Migration Regulations. The third edition of the Macquarie Dictionary offers seven alternative meanings:
a)ground for belief; that which tends to prove or disprove something; proof;
b)something that makes evident; an indication or sign;
c)law – the data, in the form of testimony of witnesses, or documents or other objects… identified by witnesses, offered to the Court or jury in proof of the facts at issue;
d)to make evident or clear; show clearly; manifest;
e)to support by evidence;
f)in a situation to be readily seen, plainly visible, conspicuous; and
g)law (of an accomplice in a crime) to become a witness for the prosecution against the others involved.
The last specialised definition may be discarded. Also, in my view, the drafter of the clause did not intend to impose on decision makers under the Migration Act the strictures of proof applicable in a court by using the word “evidence”. In my view, the drafter intended that the word “evidence” should carry its ordinary or natural meaning in general parlance. In my view also, the word “evidence” was chosen deliberately as the word “information” is used elsewhere in the clause. The use of the word “evidence” in my view establishes that the clause requires something more than the mere existence of information suggestive of falsity. It requires some probative information. In other words, a decision maker cannot simply take any information suggestive of falsity as sufficient for the purposes of the clause. The decision maker must satisfy himself or herself that the information is acceptable as evidence pointing to false or misleading information having been given for the purposes of establishing the validity of the visa application and that the falsity or misleading information was material to the visa application.
This proposition may be tested by reference to a hypothetical situation. If, for example, a decision maker was confronted by a “dob in letter” the decision maker could not simply accept that letter as sufficient for the purposes of the clause. The decision maker would have to be satisfied that the allegation in the letter pointed to information having been given in support of the visa application that … was false or misleading in a material particular and that the allegation constituted evidence – in other words, that the allegation was probative of what it asserted. A decision maker could not blindly accept information as evidence of the truthfulness of the assertions contained in it. On its face, an allegation is simply evidence that an allegation has been made. In order to satisfy himself or herself that the information was evidence for the purposes of the clause, a decision maker must consider the strength and credibility of the information that has become available. It is only then that the decision maker could accept the information as evidence; that is, information probative of the fact that other information given or used as part of the assessment referred to in paragraph 1128CA(3)(k) of Schedule 1 is false or misleading in a material particular.
My decision was upheld on appeal[1].
[1] Talukder v Minister for Immigration [2009] FCA 916
In the present case, Mr Khan conceded before the Tribunal that the work reference supplied to the TRA for China Town Restaurant was false. It was material because it bore on the question of whether Mr Khan had acquired 900 hours of work experience. It was arguable that the falsity was not material, if, up to the time of the TRA assessment, there was other evidence available that he had acquired the necessary work experience. The Tribunal considered that possibility and rejected it on the basis that the available evidence established that at the relevant time Mr Khan had only 682.4 hours of work experience (or, on the most generous possible view, 802.4 hours). Mr Khan contends that the Tribunal was wrong to “stop the clock” at 3 April 2007 because there was evidence of additional work experience having been obtained after that date[2]. However, because the issue is one of materiality to the TRA assessment, work experience gained after that assessment is not material. According to the employment payment summary at CB 152 Mr Khan acquired an additional 78 hours of work experience between 3 April 2007 and 17 April 2007[3] and, even if the Tribunal should have taken into account some or all of those additional hours, it would not have assisted him.
[2] See the employee payment summary at CB 152
[3] The TRA assessment was made on 16 April 2007
Clause 880.211 of the Regulations at the relevant time imposed a time of application criterion that “The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority”. It appears from Berenguel at [26] that the criterion could be satisfied after the visa application is made. However, until the assessment is made, clause 880.230(1) has no work to do. Where an assessment has been made, the clause has work to do and must be satisfied at the time of the decision on the visa. It follows, and I find, that whether or not the TRA assessment is a necessary criterion for an application for the class of visa sought by Mr Khan, it was a necessary criterion for the grant of the visa and the Tribunal correctly directed its mind to the falsity of the information relied upon by TRA in making the assessment. The Tribunal is not a “relevant assessing authority” and cannot do the job of TRA for it. A clear policy apparent from the clause is that applicants must be frank and honest with TRA in obtaining its assessment. One cannot gain the class of visa sought by Mr Khan by providing false or misleading information to TRA and then later acquiring information that might, if it had been provided to TRA earlier, have satisfied it. This is so notwithstanding the use of the present tense “is” in the clause. False or misleading information that an applicant has 900 hours of work experience at the time of the TRA assessment does not cease to be false or misleading for the purposes of that assessment if the necessary hours are acquired subsequently.
Mr Khan conceded before the Tribunal that the work reference for the China Town Restaurant was false but contended that it was provided by his then agent without his knowledge or authority. However, there was no corroborative evidence before the Tribunal that Mr Khan used the services of an agent, whether registered or otherwise. Further, if in fact the applicant had used the services of an agent he would have needed to persuade the Tribunal that the false information was provided by the agent outside the scope of his agency. Even then, the Tribunal would have needed to consider whether the applicant satisfied the visa criterion in circumstances where the information relied upon by TRA was false or misleading in a material particular, albeit in circumstances where the applicant was not responsible for the provision of it. While, hypothetically, such a situation might call for a difficult judgement from the Tribunal, this is not that case. On the state of the evidence and claims before the Tribunal, it was not necessary for the Tribunal to resolve that issue.
I find that the Tribunal did not misconstrue or misapply clause 880.230(1). It follows that the decision is free from jurisdictional error. The decision is thus a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 16 August 2010
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