KUMRA v Minister for Immigration

[2016] FCCA 2632

FEDERAL CIRCUIT COURT OF AUSTRALIA

KUMRA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2632

Catchwords:
MIGRATION – Review of a decision of the Migration Review Tribunal – application for a Skilled (Residence) (class VB) visa – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 359(2), 359A, 359C, 360(3), 363A, 476(1),

Migration Regulations 1994 (Cth) Sch.2: cl.886.225, Sch.4: PIC 4020,
4020(1), 4020(1), 4020(2), 4020(4)  

Applicant: ASHISH KUMRA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG1471/2015

Judgment of: Judge Hartnett

Hearing date: 12 September 2016

Delivered at: Melbourne

Delivered on: 12 September 2016

REPRESENTATION

The Applicant:	In Person
Counsel for the First Respondent:	Mr Hornsby

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG1471/2015

ASHISH KUMRA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application filed 29 June 2015 wherein judicial review is sought of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) dated 3 June 2015 to affirm a decision of a delegate of the First Respondent not to grant the Applicant a Skilled (Residence) (class VB) visa (‘the visa’). The proceedings are brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (‘the Act’). The Court has concluded in this matter for the reasons which follow that the Applicant has failed to identify a jurisdictional error attending the Tribunal’s decision of 3 June 2015, and therefore this application must be dismissed.

2. The single ground of application is as follows:-

   “The MRT erred in not giving consideration to the fact that I did not provide a fraudulent document.  I provided evidence to that effect. The MRT discarded the evidence. Accordingly, the MRT erred as a matter of law.”

3. The Applicant filed no written submissions but was given the opportunity to make some submissions on the hearing this day.  He indicated that he did not have any evidence with him, it being a long time ago that he had worked at the place of employment he claimed to have worked.

4. The First Respondent has filed a response to the proceedings and seeks that the application be dismissed and that costs follow the event.  The First Respondent has filed written submissions in accordance with the orders made by Registrar Burns on 9 November 2015 and those submissions are before the Court.  There is also before the Court the evidence as contained in the Court Book filed 17 February 2016.

History

1. On 31 October 2008, the Applicant applied to the Department of Immigration and Citizenship as it then was (‘the Department’) for the visa.  Having regard to the visa application form, the relevant subclass of the visa was subclass 886.  The background to this matter is otherwise as accurately set out in the First Respondent’s written submissions as follows:-

   a)by letter dated 21 November 2008, the Applicant’s migration agent wrote to the Department and provided various documents in support of the Applicant’s application for the visa, including an offer of employment from O’Heas Bakery & Deli (“O’Heas”) and a skills assessment from Trades Recognition Australia (“TRA”) with the reference number “TRA08/107204782”;

   b)to obtain the positive skills assessment from TRA, the Applicant provided a reference letter from Mr Emmanuel Ploumidis, the owner of Pastry Art Design (‘PAD’), which stated that the Applicant had completed over 900 hours of work experience with the business;

   c)in order to be granted the visa, the Applicant had to meet a range of criteria, including cl.886.225 of sch.2 to the Migration Regulations 1994 (Cth) (“the Regulations”). Clause 886.225 required, amongst other things, that the Applicant satisfy Public Interest Criterion (PIC) 4020. Relevantly, PIC 4020 required that there be no evidence that the Applicant had provided, to the Minister or his officers, a “bogus document” or information that was false or misleading in a material particular;

   d)on 6 January 2012, the Department wrote to the Applicant via his appointed migration agent to invite his comment on adverse information.  The relevant adverse information was that Mr Carmine Amarante had pleaded guilty to the manufacture and sale of work references matching the offer of employment from O’Heas that the Applicant provided to the Department, and also to the manufacture and sale of work references from PAD that was comparable to the one that the Applicant submitted to TRA to obtain his skills assessment.  As a result of this information, the Department had reason to believe that the TRA skills assessment provided by the Applicant was fraudulently obtained;

   e)on 27 August 2014, the Department wrote to the Applicant via his appointed migration agent inviting his comment on further adverse information;

   f)on 5 December 2014, the delegate refused the visa application on the basis that the Applicant did not meet PIC 4020.  Having regard to the available evidence, the delegate found that there was information before it that indicated that the Applicant had submitted a bogus document (the TRA skills assessment) in support of his application for the visa.  The delegate concluded the Applicant did not meet cl.886.225 of Sch.2 to the Regulations;

   g)on 17 December 2014, the Applicant applied to the Tribunal for review of the delegate’s decision.  The Applicant appointed a migration agent to represent him and also provided a copy of the delegate’s decision with the application for review;

   h)On 23 March 2015, the Tribunal wrote to the Applicant via emailed letter to his appointed migration agent to request information pursuant to s.359(2) of the Act. Noting that the delegate had found that the Applicant did not satisfy PIC 4020, the Tribunal requested that the Applicant provide information which demonstrated that he had not given or caused to be given a bogus document or information false and misleading in a material particular. The Applicant was given until 7 April 2015 to provide the requested information;

   i)on 7 April 2015, the Applicant’s migration agent wrote to the Tribunal attaching a medical certificate for the Applicant and requesting an extension of time to provide the requested information.  The Tribunal subsequently granted the Applicant an extension of time until 21 April 2015. However, the Applicant failed to provide the requested information within the extended prescribed time period;

   j)on 15 May 2015, the Tribunal wrote to the Applicant, via emailed letter to his appointed migration agent to advise that he had lost his right to a hearing given he had failed to provide the information requested under s.359(2) of the Act.

   k)by separate letter dated 15 May 2015, sent by email to both the Applicant and his appointed migration agent, the Tribunal invited the Applicant to comment on or respond to adverse information pursuant to s.359A of the Act. The letter referred to information before the Tribunal that indicated Mr Amarante had implicated Mr Ploumidis as an employer involved in the fraudulent work reference scheme; that Satish Madaan, the Applicant’s migration agent, had also been implicated by Mr Amarante as a migration agent who had sought fraudulent documents; and that an unsigned work reference in the Applicant’s name from O’Heas (another business whose owner had been implicated by Mr Amarante in being involved in the fraudulent work reference scheme) had been found in Mr Amarante’s possession. The Applicant was given until 29 May 2015 to provide his comments or response;

   l)however, the Applicant failed to provide his comments within the prescribed time period and no further correspondence was received from the Applicant by the Tribunal.

The Tribunal

1. On 3 June 2015 the Tribunal affirmed the decision of the delegate to refuse the visa application. The Tribunal found that given the Applicant failed to provide the information requested by the Tribunal pursuant to s.359(2) of the Act, he had lost his right to a hearing by operation of ss.359C, 360(3) and 363A of the Act.

2. As set out in paragraph 22 of the Tribunal’s Statement of Decision and Reasons (‘the Decision Record’) the Tribunal found that Mr Amarante admitted to and was in the business of selling work references containing false work claims to persons who intended to use the work references to apply for further visas in Australia.  The Tribunal found that an unsigned O’Heas work reference in the Applicant’s name was found in Mr Amarante’s possession. 

3. The Tribunal found further in paragraph 26 of its Decision Record that the fact that Mr Amarante was found in possession of a fully drafted work reference bearing the Applicant’s full name created an inference that Mr Amarante created that document because the Applicant was in need of it for a fee, and could not obtain it directly from an employer because the Applicant either had not completed or did not intend to complete the work experience ordinarily required to procure it from an employer. 

4. The Tribunal considered that Mr Amarante’s implication of the Applicant’s migration agent reinforced the inference that the Applicant had contact with Mr Amarante.  The Tribunal found that the Applicant had not presented evidence sufficient to outweigh the inference drawn.

5. The Tribunal found further on the evidence that the inference drawn by it supported a reasonable suspicion that the skills assessment was obtained because of a false or misleading statement; the statement in the work reference given to TRA that states that the Applicant completed 900 or more hours of work experience in the business.  The Tribunal noted that the skills assessment was “obtained because” of the work claims in the work reference.

6. The Tribunal noted that the Applicant in the review process had been unable to present convincing evidence that he had completed the work experience at PAD or, for that matter, at O’Heas sufficient to outweigh the inference created by the Amarante evidence which suggested that he did not. The Tribunal, therefore, found that the skills assessment was a bogus document as defined in s.5(1) (formally defined in s.97) of the Act. Bogus documents being defined in s.5(1) as follows:-

   ““bogus document”, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a) purports to have been, but was not, issued in respect of the person; or

   (b) is counterfeit or has been altered by a person who does not have authority to do so; or

   (c) was obtained because of a false or misleading statement, whether or not make knowingly.”

7. Because there was a reasonable suspicion the TRA skills assessment was obtained by the Applicant from the TRA because of a false or misleading statement in the work reference given to the TRA (that the Applicant had completed at least 900 hours of work experience), the Applicant did not satisfy PIC 4020(1). 

8. The Tribunal went on to consider whether the requirements of PIC 4020(1) or (2) should be waived and noted that the Applicant had not advanced or disclosed any circumstances for consideration which related to the waiver. On the evidence, the Tribunal found no compelling circumstances that affect the interests of Australia, nor compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justified the granting of the visa.  Therefore, the requirements of PIC 4020(1), the Tribunal found, should not be waived. 

9. The Tribunal concluded that the Applicant did not satisfy PIC 4020 for the purposes of meeting cl.886.225 of Sch.2 to the Regulations.

Consideration

1. The ground of judicial review, as stated in the Applicant’s application in this judicial review proceeding, is vague and appears to be a complaint about the Tribunal’s factual findings. 

2. Contrary to the Applicant’s assertion in that ground, as stated in his application, it does not appear, on the material before the Court, that the Applicant provided any evidence at all to the Department or to the Tribunal which indicated that he did not provide a fraudulent document. I note the Tribunal sent a request to the Applicant for information under s.359(2) of the Act and an invitation to comment under s.359A. The Tribunal then proceeded to consider the evidence before it and made a finding open to it on that evidence which included the drawing of an inference from the information set out in its s.359A letter.

3. The Tribunal correctly applied the relevant law to the facts of this matter and properly considered whether, on the evidence, the requirements of PIC 4020(1) should be waived pursuant to PIC 4020(4). 

4. There being no merit to this application for judicial review, it is dismissed and costs shall follow the event.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 12 October 2016