Lin v Minister for Immigration

[2016] FCCA 489

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 489

Catchwords:
MIGRATION – Migration Review Tribunal – Skilled (Residence) (Class VB) visa – IELTS test – bogus document – application for merits review – show cause hearing.

Legislation:
Migration Regulations 1994, Schedule 2 cl.885.224, reg.1.15C
Federal Circuit Court Rules 2001, r.44.12

Applicant: YING LIN

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1052 of 2015

Judgment of: Judge Riley

Hearing date: 24 February 2016

Date of last submission: 24 February 2016

Delivered at: Melbourne

Delivered on: 24 February 2016

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: Ms Mitchell

Solicitors for the first respondent: Clayton Utz

Counsel for the second respondent: No appearance

Solicitors for the second respondent: Clayton Utz

ORDERS

1. The application filed on 11 May 2015 be dismissed pursuant to r.44.12(1)(a) of the Federal Circuit Court Rules 2001.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $3,416.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1052 of 2015

YING LIN

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(settled from the transcript)

1. This is a show cause hearing in an application for review of a decision of the Migration Review Tribunal (“the Tribunal”). The applicant applied for a Skilled (Residence) (Class VB) visa.  A delegate of the Minister for Immigration refused that application on 13 February 2014.  The applicant then sought review by the Tribunal. 

2. The visa application was lodged on 21 November 2011. The applicant was required to satisfy cl.885.224 of Schedule 2 to the Migration Regulations 1994.  They required her to satisfy public interest criterion 4020. That criterion requires that there be no evidence that the applicant has given or caused to be given to the Minister, an officer, the Tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular. 

3. In the present case, the applicant was required to submit evidence of English language proficiency.  She chose to submit the results of a test she had undertaken under the IELTS system. She provided to the Department of Immigration and Border Protection results showing that she had 6.5 for listening, 6.5 for reading, 6.0 for writing and 6.5 for speaking.

4. The department made inquiries through the IELTS verification portal and discovered that the actual results of the applicant’s IELTS test undertaken on 2 April 2011 were 6.5 for listening, 5.5 for reading, 5 for writing and 6.0 for speaking. The department wrote to the applicant inviting her to make submissions in relation to the question of whether a bogus document had been provided to the department and also inviting submissions on whether the requirements of PIC 4020 should be waived in the applicant’s case.

5. The applicant responded without disputing that the IELTS test results she had provided were bogus but did make certain submissions regarding a waiver.  The delegate did not consider that the PIC 4020 should be waived. 

6. The Tribunal came to the same view after conducting a hearing. The Tribunal’s reasons for decision record that the Tribunal discussed with the applicant the verification process that the department had undertaken and the requirements of PIC 4020.

7. The Tribunal considered that the applicant had been truthful in that she had not been personally involved or complicit in the creation of the bogus document which had, in fact, been submitted by her agent.  The Tribunal noted the fact that there is no requirement in the legislation for the applicant to be personally involved in the creation of the bogus document or its provision to the department.  The Tribunal concluded that it was not satisfied that there was no evidence that the applicant had caused to be given to an officer of the department a bogus document. Consequently, the Tribunal found that the applicant did not meet PIC 4020. 

8. The Tribunal then considered whether PIC 4020 should be waived.  The Tribunal noted that that criterion could be waived where there are compelling circumstances that affect the interests of Australia or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa.

9. The Tribunal’s reasons for decision record that it explained the waiver provisions to the applicant. The applicant explained that she did voluntary work as well as paid work.  She said that the company she worked for would be severely disadvantaged if she were not granted a visa because she has been trained at the company’s expense. The Tribunal also noted that the applicant said that she had been in a relationship with an Australian citizen for five months.

10. The Tribunal considered the definition of competent English in reg.1.15C, noted that the applicant did not have a passport of the relevant type and noted that the applicant had submitted IELTS test results but not evidence under the occupational English test. The Tribunal found that the IELTS test results provided by the applicant were bogus. There was no evidence of any other test results that the applicant had undertaken. Consequently, there was nothing before the Tribunal to indicate that the applicant had competent English as defined. The Tribunal was not satisfied that the matters raised by the applicant were sufficient to justify PIC 4020 being waived. Consequently, the Tribunal affirmed the delegate’s decision not to grant the applicant a visa.

11. The application to this court was apparently filed without the assistance of a lawyer. The applicant appeared in court today without the benefit of legal assistance.  The application is somewhat confusing. It has a separate sheet setting out what seem to be the grounds of the application. The first ground in the application is as follows:

    MRT did not respect me and my representative’s migration knowledge , I submit my submission letter for him to consider and also hope him can read the migration law on each year is changed, but he just do not do anything, but affirm my case immediately. on the hearing, he kept asking me having a break , which he try to tell me affirm decision after my short break

12. It is difficult to understand how that means the Tribunal made a jurisdictional error.  The applicant said in oral submissions that the law relating to the visa conditions changed and she said that was not fair.

13. However, the Tribunal had to apply the law as it stood.  The court would not be able to overturn the Tribunal’s decision even if the court shared the applicant’s view that there had been some unfairness in the changes to the visa conditions.  Otherwise, the first ground does not contain anything which indicates that there may have been a jurisdictional error on the part of the Tribunal. 

14. The second ground in the application is as follows:

    after hearing, I ask for Minister’s contact, but they refuse to give to me. I believe i have the right to go to their minister. I could not go back to China because my parents forcing me to marry someone i never meet because of my loan to Australia.

15. Again, it is difficult to follow how the matters set out in that ground could indicate that the Tribunal has made a jurisdictional error. 

16. At best, this appears to be an application for merits review which this court is not permitted to provide.

17. The third ground in the application is as follows:

    refused my Australian permanent resident is a huge important thing for a person who studied and worked so hard as a baker for 4years time and receiving a low wages for a permanent residency. I worked so hard contribute to Australian. Immigration at least need to contact me to have a face interview asking what happen before refused me!

    I live Australian for 8 years, and studying for 3 years in Australia, having IELTS test at least 4 times, i know exactly immigration government has the access to the IELTS result, as myself NO. Important application, how will I do that so silly, if immigration contact me ,this will definitely be avoided, if i notice that, i will definitively withdraw the application immediately! The immigration do not have the basic thought and just do their job quickly like machine.

18. Again, this appears to be an application for merits review. To the extent that the applicant might be challenging the decision of the delegate, as opposed to the Tribunal, this court has no jurisdiction.

19. The applicant also filed in the court a letter dated 14 January 2016.  That was filed as if it were submissions.  The letter is as follows:

    Dear Federal Judger,

    My name is Ying Lin, my file number is MLG1052/2015, I try to write a letter to you about my file, but your officers said I cannot send by Email,so, I am writing now here.

    My argument against Immigration department was because the case officer he did not mobile me or even send a letter to my home to notify me about this ridiculous mistake and give me a chance to find out the truth. If he can contact me in person to hear my voice, this would never happen on me. It is a disaster for a young person who spend her most bright life time working and studying hard as a baker working at midnight when everybody are still in sleep for becoming a permanent Australian resident. It is such important application for one's life, and has paid a big amount for its application fee, the officer he should at least give my private mobile number a call or a message to let me know something weird happens, before he just make a decision according by dead paper someone sent to him. I am well educated , graduate my Bachelor degree and studied 2.5 years in melbourne, why should a person to submit a such clear mistake on her immigration application as this. It is such clear something wrong here, but ,the officer he still just work as usual on paper without giving me a call or a single letter.

    and also, i spent so much money come Australia live ,study and do low pay labour hard work for australia, now, i don't get my permanent resident to get a proper full time job to pay off my a lot of loans for going overseas here.

    Australia make me in this difficult situation, i cannot go back home country now because of those loans, and my brother and parents will force me to marry to someone i never met for those loans! Australian immigration officers do not think for me at all!

    it is agent takes my fee and apply fake document on my behalf without tell me, if immigration mobile me ask me I would know! i know ielts is online check , i am not so stupid to kill myself. and i graduated Australian school and also graduated language test, i can get 4 in 6 if they ask me. immigration should contact me in this case but not just do by email only!!

    before i apply Australia, the immigration policy claims that once students graduate 2 years bakery course and those students can become Australian permanent resident, but after I paid bakery tuition fee and finished about half year study, the immigration department just announce some new immigration policy which just totally push me in hell. It is immigration department they make me in trouble and destroy my whole dream and delightful life, I was so young and with whole expectation for great life.

    They just damage it all by their immigrate tricks. We all have one life, we all expect best and plan a great future as i also do, I made a plan to do 2 years bakery study , but they just broke the policy as an agreement. Do they realize the way they do are destroying how many great young future in death? They are really act very irresponsibly. I am looking for justice.

20. Again, this appears to be an application for merits review, which this court is not able to provide. It also appears to challenge actions of the department, as opposed to the Tribunal, which this court is not permitted to review. 

21. The applicant, in oral submissions, did not say how any of the matters set out in the letter indicated that the Tribunal had made anything recognisable as a jurisdictional error. 

22. The applicant’s principal point in oral submissions seemed to be that the department should have sent her a letter rather than communicating with her agent. She said that if she had got a letter from the department she would have known something was wrong and would have withdrawn the application.  However, there is nothing to suggest that the department communicated with a person who was not the applicant’s authorised or nominated recipient.  In fact, the documents in the court book indicate that the department communicated directly with the applicant, as she had authorised the department to do.  

23. The position is that the applicant did not challenge the Tribunal’s finding that the document recording her IELTS results was false.  The applicant did not have any other evidence of competent English. Consequently, she was not able to meet the criteria for the relevant visa. 

24. The first respondent has pointed out that the Tribunal actually set out in its reasons for decision the wrong version of regulation 1.15C of the Migration Regulations 1994. However, that error was not one that could have made any difference to the ultimate result. The basic requirements for competent English were common to both the correct version of reg.1.15C and the version that the Tribunal relied upon.

25. In all the circumstances, I am not satisfied that the applicant has raised an arguable case. Consequently, as this matter was listed for a show cause hearing, I consider that it is proper to dismiss the application under r.44.12 of the Federal Circuit Court Rules 2001.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date:  8 March 2016