Liyanagama v Minister For Immigration and Anor (No.2)

[2015] FCCA 401

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIYANAGAMA v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 401

Catchwords:
MIGRATION – Judicial review of refusal of application for application for skilled visa – false/ misleading information on English language proficiency test report – bogus document – counterfeit document – Tribunal proceeding to hear the application pursuant to s.362B of the Act.

Legislation:

Migration Act 1958 (Cth)

Kaur v Minister for Immigration and Border Protection (2014) 141 ALD 619
Trivedi & Others v Minister for Immigration and Border Protection [2014] FCAFC 42

Applicant: THISARA NUWAN LIYANAGAMA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 977 of 2014

Judgment of: Judge McGuire

Hearing date: 12 February 2015

Date of Last Submission: 12 February 2015

Delivered at: Melbourne

Delivered on: 25 March 2015

REPRESENTATION

Solicitor for the Applicant: In person

Counsel for the first Respondent: Mr Goodwin

Solicitor for the first Respondent: Australian Government Solicitor

ORDERS

1. The application filed 23 May 2014 be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 977 of 2014

THISARA NUWAN LIYANAGAMA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed 23 May 2014 seeking a judicial review of a determination of the Migration Review Tribunal (“the Tribunal”) made 30 April 2014 affirming a decision of the Minister’s delegate refusing the granting to the Applicant of a skilled (residence) (class VB) visa (“the visa”).

2. The Applicant represents himself in these proceedings.  The application proceeded following an unsuccessful oral application by the Applicant for an adjournment.

3. The application discloses two grounds of complaint being: 

   (1)  Here, the First and Second Respondent erred in the application of Migration Regulations.

   (2)    That the decision record of the First Respondent is flawed as the reasons contained are illogical, incorrect and erroneous and affected by jurisdictional error.

4. On 20 August 2014 the Registrar made orders and directions listing the matter for final hearing before this Court.  The Applicant did not file written submissions.  The Applicant made short oral submissions before this Court and limited to his claim that he had not received the letter from the Tribunal inviting him to attend.  The Applicant admitted that he had received the later decision of the Tribunal and, at the same address which was at all times his notice of address for service for Tribunal documents.

5. The application is opposed. 

Background

1. The Applicant is 35 years of age.  He is from Sri Lanka.  He had entered Australia holding a student visa issued in April 2010.

2. The Applicant applied for a skilled (residence) (class VB) visa on 10 October 2011.  That application discloses that he was represented by a migration agent at that time. 

3. At page 13 of his application (CB13) the Applicant answered in the affirmative to the question as to whether he had taken an English test within the last 24 months.  He named the test as IELTS.  He said that he completed the test on 19 March 2011 and gave a test reference number of 10LK006932LIYT001G.  He described his language ability as “proficient”.  Attached to the application (CB17) is a document purporting to be an IELTS result certificate in respect of the Applicant, showing a pass results in each of the requirements of listening, reading, writing and speaking (CB18). The overall average score shown is 7.0.

4. On 3 January 2012 the Minister’s delegate wrote to the Applicant inviting him to “comment on suspected fraudulent information supplied with a valid application for a Class VB, Subclass S 885 Skilled (Residence) independent visa”.  Specifically that letter referenced the criterion PIC4020 which:

   ...requires that there be 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 relation to:

   (1)    The application for the visa;  or

   (2)    a visa that the applicant held in the period of 12 months        before the application was made.

   As evidence has been found in your application that suggests a bogus document or information that is false or misleading in a material particular has been submitted, you are strongly encouraged to carefully read the following information to further understand how this matter can be addressed with the Department.

5. The Applicant did not provide a response or comment.

6. On 3 August 2012 the Minister’s delegate refused the grant of the visa on the basis of the application containing false or misleading information in respect of a material particular.

7. The Applicant made application for a merits review to the Tribunal on 17 August 2012.

8. By letter of 17 March 2014 the Tribunal invited the Applicant to appear at the hearing on 24 April 2014.  The Applicant did not appear before the Tribunal.

Tribunal’s Decision

1. At [3] the Tribunal noted the invitation to the Applicant to appear and that he had not done so. The Tribunal determined pursuant to s.362(1) of the Migration Act1958 (“the Act”) to proceed to its determination without further action enabling the Applicant to appear.

2. The Tribunal properly addressed the relevant legislation referencing the Public Interest Criterion 4020 which is (PIC4020) as required by cl.885.224 of the regulations which provide:

   (1)    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.

   (2)    The Minister is satisfied that during the period:

   (a)     starting three years before the application was made;  and

   (b)     ending when the Minister makes the decision to grant or refuse the application;

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (3)    To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4)    The Minister may waive the requirements or any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a)     compelling circumstances that affect the interests of Australia;  or

   (b)     compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; 

   justify the granting of the visa.

   (5)    In this clause:

   information that is false or misleading in a material particular means information that is:

   (a)     false or misleading at the time it was given;  and

   (b)     relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

3. “Bogus document” is defined in s.97 of the Act as “a document that the Minister reasonably suspects is a document that is counterfeit or has been altered by a person who does not have authority to do so.”

4. In its reasons at [13] the Tribunal notes that on 2 December 2011 the Department sought verification of the Applicant’s IELTS results from a verification database. Whilst the database confirmed the Applicant undertaking the test on 19 March 2011, the scores were shown as Reading 6.5; Writing 5.5; Speaking 5.5, leading to an overall band score of 6.0.

5. On that day [14] the Department sought verification of the document provided by the Applicant and from the British Council in London.  The Department was notified that the test report was not authentic.  The British Council later confirmed the Applicant’s overall band score at 6.0.

6. At [17] the Tribunal considered the conflicting evidence of the Applicant himself against that of the British Council and the IELTS database. The Tribunal preferred the latter evidence finding that the material provided by the Applicant was false or misleading at the time that it was given.

7. At [19] and in the alternative, the Tribunal found, for the same reasons, that the Applicant’s IELTS test result document provided by him to the Minister was a bogus document within the definition of s.97 of the Act in that the Tribunal reasonably suspected the document to be counterfeit.

8. Accordingly, the Tribunal was not satisfied that the Applicant met the requirements in PIC4020(1) at [20].

9. The Tribunal then considered whether it should exercise its discretion to waive the requirements of PIC4020(1). The Tribunal noted at [22] that there were no submissions or other information before it in relation to compelling circumstances that affect the interests of Australia or compassionate/compelling circumstances in respect of eligible citizens or residents. At [23] the Tribunal was not satisfied that either singularly or cumulatively the Applicant’s circumstances constituted either compelling or compassionate circumstances.

Consideration before this Court

1. The Applicant’s two grounds of complaint set out above are generic and unparticularised and hence difficult to understand.  The Applicant did not elaborate by either written or oral submissions.  Nevertheless, and as the model litigant, counsel for the First Respondent suggested that the Court focuses its consideration on the following determinative questions which would address the Applicant’s complaints:

   (1) was there any error in the Tribunal’s exercise of its discretion to hear the matter in the absence of the applicant pursuant to s 362B of the Act; and

   (2)    was there any error in the Tribunal’s findings regarding PIC4020?

2. The Applicant took no issue with such a summary of his complaint.  He offered no submissions in response.  In fact, the above would appear consistent with a short affidavit filed by the Applicant on 23 May 2014 with his application which deposes as follows:

   (3)    that in paragraph 16 of the said decision record of the Second Respondent it is stated that an invitation for a hearing had been sent out to me and that no response for such hearing invitation was received.

   (4)    However, that I did not receive any such invitation from the Second Respondent and deny having any knowledge of such a hearing being held.

   (5)    That by failing to properly invite me for a hearing I lost the opportunity to clarify matters before the Second Respondent in relation to the IELTS results submitted in support of my visa application to the First Respondent.

   (6)    That I deny all knowledge of any fraud associated with my application for a sub-class 885 visa and as such PIC4020 should not apply.

   (7)    That the failure of the Second Respondent to conduct a fair and reasonable hearing is a breach of the Second Respondent’s statutory duties and consequently the decision made by the Second Respondent is affected by jurisdictional error.

Ground 1 – was there any error in the Tribunal’s exercise of its discretion to hear the matter in the absence of the Applicant pursuant to s.362B of the Act?

1. The invitation to the Applicant to appear, dated 17 March 2014, was sent to the Applicant’s advised address for service and as appears on his application for review to the Tribunal. 

2. There is no evidence of any later or alternate address for service being provided by the Applicant to the Tribunal.

3. It is noteworthy that the Applicant does not dispute that he received the subsequent Tribunal’s decision at that same address.

4. Section 379A provides for service of documents and at subsection (4) deals with despatch by prepaid post which is effected by despatching the document to:

   (i)     the last address for service provided to the Tribunal by the recipient in connection with the review;  or

   (ii)    the last or business address provided to the Tribunal by the recipient in connection with the review.

5. In Kaur v Minister for Immigration and Border Protection[1] Mortimer J dealt with a similar factual situation and considered that, in being satisfied as to service on the Applicant, that the Tribunal should have considered the particular circumstances of the relationship between that Applicant and the Tribunal.  At [95-96] her Honour observes:

   An objective consideration of the course of conduct between the Tribunal and the first appellant, of the nature of the first appellant’s communications with the Tribunal and of her evident determination to provide sufficient information to the Tribunal leads to the conclusion, in my opinion, that the Tribunal ought to have realised the failure to file a response to the hearing invitation, and the non-appearance at the second hearing, were out of character, and departed from the pattern of conduct for the first appellant in terms of her attitude to this review.

   Given the history of contact between the Tribunal and the first appellant, including proactive contact from the Tribunal, it is inexplicable why there was no attempt to contact the first appellant.  The first occasion for that inexplicability occurred when there was no response to a hearing invitation filed by the time specified.  This is a review applicant who had been through the hearing invitation process once and fully complied.  It is a review applicant who had been in regular contact by phone, email and fax with the Tribunal, who was actively seeking to satisfy the Tribunal as to why she met the financial criteria.  The only short period without contact between May 2012 and February 2013 was due to the Tribunal not responding to the appellant’s last communications of 3 and 5 December 2012, until it sent the second hearing invitation.

   [1] (2014) 141 ALD 619

6. I am of the view that the factual platform before me can be distinguished from that before Her Honour. There had been no regular communications between this Applicant and the Tribunal or the Department.  Indeed, the delegate had invited a comment from the Applicant in respect of the issues raised in relation to his application but without response from the Applicant.  There is no evidence of the Applicant being proactive in respect of his pending application in any other way.  It is not therefore a situation where the Applicant’s failure to respond to the invitation of the Tribunal should have ordinarily alerted the Tribunal to some breakdown in the service process.  I repeat that the Applicant’s address for service remained unchanged until after receipt of the Tribunal’s decision.

7. Consequently, I am not satisfied that the Tribunal fell into error in the exercise of its discretion to hear the matter in the absence of the Applicant.  I find no merit in this ground of complaint.

Ground 2 - Was there any error in the Tribunal’s findings regarding PIC4020?

1. The Tribunal had before it contrary or conflicting information regarding the required criterion of the Applicant’s test scores.  The Tribunal had properly invited the Applicant to the hearing.  The issues of concern were clearly advised to the Applicant in the delegate’s determination and prior correspondence.

2. The Tribunal is the determiner of fact and credit.  It was open to the Tribunal to make the finding that it did in respect of false or misleading information on consideration and attributing of weight to all of the evidence.  It is not the function of this Court to enter into yet another review of the merits of the application.

3. Further, the Tribunal had before it conflicting evidence and it was proper for the Tribunal to consider the authenticity of the documentary evidence provided by the Applicant.  I am satisfied that it was open to the Tribunal, on consideration of all the evidence, to find that the document provided by the Applicant was a bogus one.  Specifically, it was open to the Tribunal to find that this document was counterfeit.  It is enough that the Tribunal made its findings objectively in respect of the document.  There was no requirement for the Tribunal to move on to a consideration of whether the Applicant himself knew that the contents of the document were false or misleading when he provided it to the Tribunal.[2]

   [2] Trivedi & Others v Minister for Immigration and Border Protection [2014] FCAFC 42

The Tribunal’s discretion to waive the requirements of PIC4020(1)

1. The Tribunal properly considered the exercise of its discretion to waive the legislative requirements at [21-23].  The Tribunal considered whether there was any evidence of any relevant compelling or compassionate circumstances.  The Tribunal considered that the personal circumstances of the Applicant are disclosed in his application and it was not satisfied that, either singularly or cumulatively, any such compelling or compassionate circumstances existed.  This was an exercise in fact–finding open to the Tribunal.

2. Consequently, I find no merit in the Applicant’s second ground of complaint.  In conclusion, there being no merit in either of the Applicant's grounds of complaint, the application will be dismissed with costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  25 March 2015