KUMAR v Minister for Immigration - [2015] FCCA 3377

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMAR v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 3377

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Residence) (Class VB) visa – IELTS test – false or misleading information.

Legislation:
Migration Act 1958 (Cth), s.359AA
Migration Regulations 1994, Schedule 4, public interest criterion 4020(1)

Cases cited:
Talukder v Minister for Immigration and Citizenship (2009) 111 ALD 405; [2009] FCA 916
Sharma v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1280

Applicant:

MANISH KUMAR

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 326 of 2015

Judgment of:

Judge Riley

Hearing date:

18 November 2015

Date of last submission:

18 November 2015

Delivered at:

Melbourne

Delivered on:

18 November 2015

REPRESENTATION

Counsel for the applicant:

The applicant appeared in person

Solicitors for the applicant:

The applicant was not represented

Solicitor advocate for the first respondent:

Marcus Priest

Solicitors for the first respondent:

Sparke Helmore

Counsel for the second respondent:

No appearance

Solicitors for the second respondent:

Sparke Helmore

ORDERS

The application filed on 19 February 2015 be dismissed.
The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.
The title of the proceeding be amended so that the name of the second respondent is the Administrative Appeals Tribunal.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 326 of 2015

MANISH KUMAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

MIGRATION REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

This is an application for review of a decision of the Migration Review Tribunal (“the tribunal”). The applicant applied for a Skilled (Residence)(Class VB) visa. One of the criteria for that visa was English language proficiency. The applicant indicated in his visa application, which was lodged on 18 April 2012, that he had undertaken an IELTS test on 31 March 2012 and provided the test reference number.
The applicant provided the results of that test to the department on
8 July 2012. It showed that the applicant had passed the test and achieved an overall band score of 8.5. A delegate of the Minister, on about 27 November 2013 asked the applicant to comment on adverse information, which was that the test results that he had provided were false or misleading in that the results he had provided did not match the results for the relevant reference number on the IELTS online verification service. It seems that the IELTS administrators, after the applicant had been sent his favourable results and after the applicant had sent them to the department, had reduced his score for each band to zero, possibly on the basis that the IELTS administrators had been given information by an unknown person that the applicant had arranged for an imposter to sit the test for him.
On 2 December 2013, the applicant provided to the delegate a statutory declaration and a computer printout with an earlier date confirming the results of the IELTS test that he had previously provided. He said in his statutory declaration that he was “100 % positive” that he had sat the test himself and he said, “I claim my test results to be genuine.”
The delegate refused the visa on 27 February 2014 on the basis that the IELTS test results were not genuine. The basis of that decision was that the applicant had not satisfied public interest criterion 4020(1) which was as follows:
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.
The applicant applied to the tribunal for review of the delegate’s decision on 7 March 2014.
On 6 May 2014, the applicant requested access to written material held by the tribunal. That material was given to the applicant on
13 May 2014. On 26 November 2014, the tribunal invited the applicant to appear before it.
On 23 December 2014, the applicant’s agent provided written submissions. The submissions had attached to them copies of correspondence with the IELTS administrators. The correspondence stated that the test that appeared to have been done by the applicant on 31 March 2012 had been cancelled due to suspicion of malpractice by the applicant, namely, that an imposter had attended the test on his behalf.
The agent in his submissions argued that there was no evidence that the applicant had altered the results on his physical IELTS test report form, as it matched what had been publicly available on the website prior to the results being reduced to zero. The adviser also attached a photograph of the applicant on the IELTS test report, which matched the photograph of the applicant on the online IELTS verification service. On 6 January 2015, an IELTS administrator emailed the tribunal confirming that the applicant’s test had been cancelled due to a suspicion of malpractice.
On 9 January 2015, the tribunal wrote to the applicant inviting him to provide the results of his three previous IELTS tests. Those tests were provided. They showed overall band scores of between 5 and 5.5. Those results are not sufficient to satisfy the IELTS test requirements.
On 28 January 2015, the applicant attended a tribunal hearing. During the hearing, the tribunal invited the applicant to comment on certain information in accordance with s.359AA of the Migration Act 1958 (Cth) (“the Act”).
Those matters were:
a)the results from the IELTS online verification system indicated that the results for the test undertaken by the applicant on
31 March 2012 showed zero for each of the four components of the test;
b)the correspondence to the tribunal confirming the applicant’s IELTS results of 31 March 2012 had been cancelled due to a suspicion of malpractice;
c)records of the first respondent indicating that he had been notified in 2012 by an informant that the applicant had paid someone else to take the IELTS test for him; and
d)the results of other IELTS tests undertaken by the applicant showing significantly lower scores.
The applicant addressed these issues during the hearing before the tribunal. The applicant had been given the opportunity to provide his response later, but he elected to go ahead and give his response at the hearing. He suggested that the IELTS administrators might have made a mistake in giving him such high scores for the test undertaken on
31 March 2012.
The tribunal affirmed the delegate’s decision. It found that the applicant did not meet PIC 4020. The tribunal said that it was not satisfied that there was no evidence that the applicant had given or caused to be given to the department information that was false or misleading in a material particular.
The tribunal said that the test of no evidence required that there be facts that are sufficiently probative to lead to the conclusion that false or misleading material had been given to an officer of the tribunal. The tribunal mentioned in its decision the cases of Sharma v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1280 and Talukder v Minister for Immigration and Citizenship (2009) 111 ALD 405; [2009] FCA 916. In those cases, that test was established by the Federal Court and followed by this court.
The tribunal considered that the information that the applicant’s results were false or misleading was sufficiently probative. The tribunal relied on the records of the first respondent concerning the anonymous information from an informant. The tribunal also relied on the fact that the results in the test allegedly undertaken by the applicant on
31 March 2012 were substantially higher than the results achieved by the applicant in three previous IELTS tests.
The tribunal also relied upon the applicant’s acknowledgment that there was a significant discrepancy in the results of the 31 March 2012 as compared to other results achieved by the applicant. The tribunal also had regard to research published in the IELTS website and conducted by universities which indicated that of 112 people who had undertaken intensive language study between IELTS tests, they improved their score on average by 0.5 for each category. On the other hand, the applicant had increased his score between a test in February 2012 and another in March 2012 by 3.5 overall.
The tribunal also took account of the fact that the IELTS administrators had cancelled the applicant’s test results for the test undertaken on
31 March 2012. The tribunal noted that the IELTS administrators had not provided an evidentiary basis for their suspicion of malpractice. However, the tribunal considered that the fact that the testing authority did not consider the results to be reliable was a matter that it could properly take into account.
The tribunal did not accept as more than a possibility the applicant’s claim that the IELTS administrators might have made a mistake in giving the applicant such a high score in the test undertaken on
31 March 2012. The tribunal did not accept that that possibility was outweighed by the other evidence that the test results were false or misleading.
The tribunal noted that the applicant had provided test results which, as at the time of the tribunal’s decision, had been reduced to zero. As such, the tribunal noted that the applicant did not meet the basic requirements for the subclass 885 visa. The tribunal considered that the applicant had not satisfied PIC 4020(1), because there was evidence that the applicant had given false or misleading information to a delegate of the Minister.
The tribunal also considered whether it should waive the requirements of PIC 4020. The tribunal noted that it could do so where there are compelling circumstances that affect the interests of Australia or where there are compassionate or compelling circumstances that affect the interest of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The tribunal said that it discussed the waiver requirements with the applicant at the hearing. However, based on what the applicant said, the tribunal was not satisfied that there was a proper basis to waive the requirements of PIC 4020.
The applicant appears to have prepared his application to this court without the benefit of legal assistance. He appeared in court today in person.
The grounds in the application are as follows. Firstly, the applicant said:
I submit that the application has been decided unfairly and my visa should not have been refused.
The applicant did not file written submissions and otherwise did not explain in writing what he meant by that statement. However, in oral submissions to the court today, he reiterated that he had sat the IELTS exam. He said that he did not know why the IELTS administrators had cancelled his test results and said that it had just been done on a “suspicion”. He asked the court rhetorically how the IELTS results could have been cancelled.
The test undertaken by the applicant on 31 March 2012 was apparently undertaken in India. There has been some communication between the department and the tribunal on the one hand and the IELTS administrators in India on the other hand. However, the full story has not been provided. The results were evidently cancelled on the basis of a suspicion of malpractice. However, the tribunal considered all of the circumstances. The tribunal did not rely simply on the fact of the anonymous informant claiming that the applicant had not himself undertaken the test. The tribunal looked at surrounding circumstances, including that the applicant had failed a number of other IELTS and had only apparently passed the test which is alleged to have been bogus. The tribunal noted the research information that people, in general, are not able to increase their scores by the amount that the applicant apparently did in this case.
All in all, the tribunal, it seems to me, did decide the case fairly. It did not rely entirely on an unsubstantiated, anonymous allegation, but looked at other material which supported the view that the applicant had not undertaken the test himself.
The second ground in the application is that:
The decision made by the Tribunal member and Immigration Department Officials is made contrary to Natural Justice.
This court is not empowered to review the decision of the delegate. The tribunal appears to have given the applicant natural justice insofar as it is required by the Act. The issue of the IELTS administrators reducing the applicant’s score to zero on the grounds of suspicion of malpractice was well known to the applicant prior to the tribunal hearing. During the tribunal hearing, pursuant to s.359AA of the Act, the tribunal raised with the applicant the issues of the discrepancy between his results of 31 March 2012 and other tests that he had undertaken, as well as, the research that showed that, in general, people are not able to improve their test results by as much as the applicant appeared to have done in this case. I am not satisfied that there is any substance to the applicant’s claim that the tribunal’s decision was made contrary to natural justice.
The third ground in the written application is that:
The Tribunal and Department have not applied procedural fairness to the my (sic) Visa application.
Again, the court is not permitted to review the department’s decision. As discussed previously, the tribunal did provide the applicant with procedural fairness or natural justice, as it is sometimes called.
Before the court today, the applicant appeared to be simply contesting the cancellation of his results by the IELTS administrators. That is not a decision that this court can review. The applicant may also have submitted that there was some error by the IELTS administrators in their assessment of his test, and that is why he got such high results. This is something that was put to the tribunal. The tribunal noted, at paragraph 36 of its reasons for decision, that this submission was made. However, for reasons which it gave, the tribunal did not accept that the applicant’s explanation outweighed the other evidence before it. I consider that that conclusion was open to the tribunal in all of the circumstances of this case.
All in all, I am not satisfied that the applicant has pointed to any jurisdictional error in the tribunal’s reasons for decision or in its handling of the decision-making process. It seems to me that the tribunal correctly applied the law and afforded the applicant procedural fairness. I have been unable to discern any jurisdictional error in the tribunal’s reasons or decision making process. Therefore, the application will be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date: 16 December2015