KOIRALA v Minister for Immigration

[2014] FCCA 842

FEDERAL CIRCUIT COURT OF AUSTRALIA

KOIRALA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 842

Catchwords:
MIGRATION – Judicial review – false information lodged by migration agent – failure of applicant to take interest in the way application was put – whether connection between applicant and the application submitted by another person – no mental element in Public Interest Criteria 4020 – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.97

Migration Regulations, Sch.2, 4.

Abebe v Commonwealth (1999) 197 CLR 510
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407
Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393
VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965
Vyas v Minister for Immigration and Citizenship (2012) 263 FLR 131
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant: UMESH KOIRALA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1554 of 2013

Judgment of: Judge F. Turner

Hearing date: 12 March 2014

Date of Last Submission: 12 March 2014

Delivered at: Melbourne

Delivered on: 12 March 2014

REPRESENTATION

The Applicant appeared In Person

Counsel for the Respondents: Ms Gordon

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application for Judicial Review filed 20 September 2013 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $6,646.00.

3. All extant applications are dismissed and the matter is removed from the list of pending cases.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1554 of 2013

UMESH KOIRALA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore & Revised)

1. This is an application for judicial review of the decision of the Migration Review Tribunal (the “Tribunal”) dated 27 August 2013 (Court Book “CB” p.64). That decision affirmed the decision of a delegate to the Minister for Immigration & Border Protection on

   
   

   13 April 2012 not to grant the applicant a Skilled (Provisional) (Class VC) visa (CB p.32).

2. On 20 November 2013, Registrar Caporale ordered the applicant to file and serve written submissions. The applicant failed to do that and said at the hearing on 12 March 2014 that he didn’t have anything further to put in submissions. The applicant is self-represented and the Minister is represented by Ms Gordon of Counsel.

3. The Court has invited the applicant to put further submissions but in effect all he has done is repeat the grounds for his application for a judicial review. Those grounds are set out in his application as follows:

   (1)Application Agent made a fraud application and applied.

   (2)Applicant was unaware which visa was applied.

   (3)Applicant didn’t allow to provide misleading information while applying visa.

   (4)Applicant agent told not to worry he will sort it out.

   (5)Applicant wants to continue his study for secure future.

4. The Court accepts the following written summary and submissions by the Minister filed 5 March 2014.

   (5)“The Applicant is a citizen of Nepal, aged 26.

   (6)On 9 April 2011, the Applicant applied for a skilled visa (CB p.8). This visa may be available to international students who have recently graduated from an Australian educational institution, allowing them to work in Australia temporarily…

   (7)The visa application form stated that the applicant had obtained a skills assessment from TRA (Trades Recognition Australia) and gave a reference number for that assessment (CB p.15).

   (8)On 17 February 2012, a letter was sent to the email address given for the Applicant on his visa application form (first email address) (CB p.11), inviting him to comment within 28 days in the following matters:

   It is alleged that your 485 application, currently under consideration by the Department, was lodged with the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information. Whilst you have no agent declared in your application, the Department has identified a file with your personal details and the application reference numbers in the office of S & S Migration.

   In addition, as part of your application you answered ‘yes’ to the question ‘have you applied to a relevant assessing authority for an assessment of your skills for your nominated occupation?’ Further, in your applicant you provided the following reference indicating a successful skills assessment TRA09/919174034. This reference was referred to TRA for verification. TRA have no record of providing you this skills assessment. TRA also have no record of ever providing you with any skills assessment. It is therefore alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.” (CB p.18).

   (9)No response to this invitation was received.

   (10)On… 13 April 2012, a delegate of the Minister decided to refuse the Applicant’s visa application, on the basis that there was evidence that he had given, or caused to be given, information that was false or misleading and therefore that he did not meet PIC (Public Interest Criteria) 4020, paragraph 1(a) (CB p.30.5).

   (11)On 13 April 2012, an email was sent to the first email address… (of the applicant) attaching notice of the delegate’s decision to refuse the visa application and the decision record (CB p.21).

   (12)On 13 April 2012, the Applicant sent an email to the Department from an email address different to the first email address (the second email address)(CB p.33.10), in which he said:

   [I] just checked my online application and it says an email has been sent to me but still i havent [sic] got it about the decision that is made on my application. If you can is it possible to send me the email again so that I can go further with my decision.

   (13)On 20 April 2012, following a process to confirm the legitimacy of the second email address, the Applicant was emailed a copy of the decision record... (CB p.35).

   (14)On 30 April 2012, the Applicant applied for a review of the delegate’s decision (CB p.40).

   (15)By letter dated 5 June 2013, sent by registered post, the Applicant was invited to appear before the Tribunal (CB p.53). The Applicant responded that he would take part in the hearing, in a response received by the Tribunal on 17 June 2013 (CB p.57).

   (16)On 27 August 2013, the Tribunal conducted a hearing, which was attended by the Applicant.” (CB p.59)

5. By a decision dated 27 August 2013 the Tribunal affirmed the decision of the delegate (CB p.64).

6. The first respondent’s submissions continued:

   (18)The Tribunal observed in its Reasons that the Applicant admitted at the hearing that he had never applied for a skills assessment to the TRA, but said that he had not instructed his agents to provide any false or misleading information to the Department or TRA (CB p.70.9 at [45]).

   (19)The Tribunal made the following key findings of fact: (CB p.70.10 at [46])

   “Based on the evidence before it, the Tribunal finds that the applicant instructed S&S Migration to make an application on his behalf and paid a fee for the service. It was open to the applicant to make inquiries about the nature of the application or the content of the application but had not done so. The applicant was indifferent to the nature or content of such an application. His desire was to remain in Australia and work as long as possible and he was indifferent about how the agent went about it. He took no interest in determining what application was made.”

7. The Court finds that those findings of fact (just quoted) were open to the Tribunal on the material before it and are not amenable to review.

8. The Court refers to the decision of NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, where the Full Court decided at [10]:

   “In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s 39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to the merits of the case put to the Tribunal.”

9. As stated in Selvadurai v Minister for Immigration and Ethnic Affairs & Anor (1994) 34 ALD 347:

   “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.”

10. The Court refers to the following decisions:

    ·Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2008) 168 ALR 407 per McHugh J at [67]:

    “If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.”

    The Tribunal’s conclusion that the applicant was not credible and his claims untrue are findings of fact: see W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 and par excellence Durairajasingham (supra) at [67].

    ·So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558 to 559 and W148/00A (supra) at [64]-[69] per Tamberlin and R D Nicholson JJ.

    ·The Tribunal’s findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272.

    ·Abebe v Commonwealth (1999) 197 CLR 510 at [137]:

    “… there is no error of law… in making a wrong finding of fact…”.

11. The Tribunal reached the following conclusions at CB p.71 [49]:

    “The above authorities suggest that lack of involvement or failure to take any interest in the application and the way in which it was being presented may be sufficient to make a connection between the applicant and the application submitted by another person. In the Tribunal’s view, that it what happened here.

    That finding of fact is not amenable to review.

12. The Tribunal continued  at CB p.71 [50]:

    “Further, Vyas (Vyas v Minister for Immigration and Citizenship (2012) 263 FLR 131) suggests that there is no mental element in PIC 4020. Thus, the Tribunal does not accept that the applicant’s claimed lack of knowledge about the application or information provided by S&S Migration means that PIC 4020 does not apply to him.”

13. After examining PIC 4020 (CB p.73), the Court finds no error of law in that conclusion by the Tribunal. The Tribunal continued at [51]:

    “As a result, the Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department… a bogus document or information that is false or misleading in a material particular”.

    A bogus document is defined in s.97 of the Migration Act 1958 (the “Act”) (CB p.74). Accordingly, the Tribunal found the applicant does not meet the requirements of PIC 4020 (CB p.71 [51] and [52]), and also found that the requirement should not be waived, having particular regard to the Applicant’s statement that no circumstances permitting waiver existed (CB p.72 [53] to [54]), and that it was “not satisfied that there are compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances… that would justifying (sic) the grant of the visa” (Ibid).

14. The court accepts that it can only interfere in the Tribunal’s decision if it is affected by jurisdictional error and refers to the decisions in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82], and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12.

15. The Court finds that the Tribunal’s decision in this matter was not affected by any jurisdictional error.

16. The Court accepts the following submissions for the first respondent:

    (21)In particular, the Tribunal correctly:

    21.1proceeded on the basis that it was required to be satisfied that there was no evidence that the applicant had given or caused to be given to the Minister or a departmental officer information that was false or misleading in a material particular

    The court refers to the Migration Regulations 1996 (the “Regulations”) Schedule 2, cl.485.224 and Schedule 4, cl.4020. (The Court notes that those Regulations are set out under tab 2 of the authorities handed to the Court by the Minister).

    21.2applied the authorities as to when a visa applicant is fixed with responsibility for false statements in an application prepared on his or her behalf by a migration agent.

    The court refers to SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393and also referred to at CB p.71 [47].

    21.3applied the authorities to the effect that for the purpose of public interest criterion 4020 the information may be given or caused to be given knowingly or unwittingly, and

    The Court notes, that is the result of a decision in Vyas (supra).

    21.4concluded that there was no basis for the waiver of PIC 4020 [in particular cl.4020(4)].

17. The court accepts the submissions of the first respondent:

    (22)The grounds of the application… ask the Court to reconsider the merits of the Tribunal’s decision and do not advance any proper basis for judicial review…

    The court has earlier referred to authorities that it is not open in a judicial review to the review the merits of the decision.

    …The relief sought by the Applicant, that the Court waive PIC 4020 and allow the Applicant to study, is not relief which the court is empowered to grant.

18. All grounds of the application for judicial review are dismissed.

19. The Minister submits further:

    (23)Even if the Court were to find… that the Tribunal’s approach to PIC 4020 disclosed reviewable error, the Court should exercise its discretion to refuse to grant relief to the applicant, because no useful result could ensue from the grant of relief. This is because the Applicant cannot meet the ‘time of application’ criteria for the visa subclass (for example, the ‘Australian study requirement’ in cl 485.213), as the required evidence was not lodged with the application.

20. Where there is an independent and unimpeachable basis for the decision, it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33].

21. The Court refers to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]:

    “The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus. The appellants’ case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board[1], cited in Aala, was one in which “irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”[2]. In this regard, the references that were made in the course of argument to the “unbundling” of a Tribunal’s reasons into “impeachable” and “unimpeachable” parts were more likely to mislead than to assist. While there may well be cases in which a tribunal’s breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.”

    [1] [1994] 1 SCR 202 at 228.

    [2]  Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].

22. As stated by Kirby J in SZBYR at [88]-[89]:

    “In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case.

    When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case.”

23. Here the relevant issue is, even if there was some error in the way the Tribunal considered PIC 4020,  the applicant would not in any event be able to meet the requirements of cl.485.213 of the Regulations and therefore would not be able to obtain prerogative relief, which in the Court’s discretion it refuses.

24. Ground 5 of the application for judicial review is that the applicant wants to continue his study for secure future. That ground raises no basis for judicial review and is dismissed.

25. The application for judicial review is dismissed

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate: 

Date: 12 March 2014