Maisuriya v Minister for Immigration

[2015] FCCA 2705

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAISURIYA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2705

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Skilled (Residence) (Class VB) visa – bogus document – IELTS test report – document altered – application for merits review.

Legislation:
Migration Regulations 1994 (Cth), sch.2 cl.885.224, condition 4020
Migration Act 1958 (Cth), s.97

Applicant: VAISHALIBEN JASHVANTLAL MAISURIYA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1239 of 2014

Judgment of: Judge Riley

Hearing date: 4 September 2015

Date of last submission: 4 September 2015

Delivered at: Melbourne

Delivered on: 4 September 2015

REPRESENTATION

Counsel for the applicant: The applicant appeared in person

Solicitors for the applicant: The applicant was not represented

Counsel for the first respondent: Bromley Hornsby

Solicitors for the first respondent: Sparke Helmore

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore

ORDERS

1. The application filed on 23 June 2014 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1239 of 2014

VAISHALIBEN JASHVANTLAL MAISURIYA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Migration Review Tribunal (“the tribunal”), which is now a division of the second respondent.  The application was filed on 23 June 2014. It came before the court for final hearing on 21 August 2015.  The applicant has been unrepresented throughout the proceedings.  On 21 August 2015, she sought an adjournment to get legal assistance.  The court granted that adjournment. However, when the matter came on again today,

   
   

   4 September 2015, the applicant was still unrepresented. The applicant filed a letter on 28 August 2015 in which she said that she had been unable to get a lawyer because it was too expensive. 

2. The substantive application concerns the applicant’s application for a Skilled (Residence)(Class VB) visa. The applicant applied for that visa on 13 November 2009. Under cl.885.224 of sch.2 of the Migration Regulations 1994 (Cth) (“the regulations”) the applicant was required, among other things, to satisfy public interest criterion 4020.

   
   

   That criterion required that there be no evidence that the applicant had provided to the Minister a bogus document or information that was false or misleading in a material particular.

3. The applicant had been required to provide to the Minister a copy of an IELTS test report.  She provided such a report with a particular reference number.  That report showed that the applicant had obtained the following scores in her IELTS test:

   a.listening: 7.5; 

   b.reading: 7.5;

   c.writing: 7.0; and

   d.speaking: 7.0. 

   Those results were sufficient for the applicant to pass her IELTS test. 

4. The department, however, checked the reference number provided with the test results.  It found that the test results on the IELTS database did not match the test results shown in the document provided by the applicant.  The database showed that the applicant had achieved the following scores:

   a.listening: 6.5;

   b.reading: 4.5;

   c.writing: 4.5; and

   d.speaking: 5. 

   Those scores were not sufficient for the applicant to pass the

   
   

   IELTS test. 

5. The department asked the applicant to provide the original test report, which she did.  The test report was subjected to an examination by the forensic document examiner.  The document examiner determined that the test results had been altered in the applicant’s favour.

6. The delegate refused the visa application on the grounds that the applicant did not meet public interest criterion 4020.  The applicant then applied to the tribunal for review. 

7. The applicant appeared at a hearing before the tribunal on

   
   

   20 May 2014.  Prior to that, she had provided a document to the tribunal, purportedly from her cousin, which indicated that the cousin had, unknown to the applicant, altered her IELTS test report. 

   
   

   The applicant at the hearing before the tribunal acknowledged that the cousin had altered her test results.  However, she said that she did not know that they had been altered.  She said that the first time that she saw the results they were in the form that was provided to the Minister and it was not her fault that the wrong information had been provided to the department.

8. The applicant also provided to the tribunal some evidence relating to her financial situation.  She said that she had been the victim of deception by a friend who had persuaded her to take out loans on the friend’s behalf.  The applicant said that she had lent money to the friend, but had been unable to repay it to the bank from which she had borrowed the money. 

9. The tribunal considered that the applicant had provided a bogus document. The tribunal noted that it was not necessary that the applicant know that the document was bogus. All that was required under s.97 of the Migration Act 1958 (Cth) (“the Act”) is that the document purported to have been, and was not, issued in respect of the person or that the document was counterfeit or had been altered by a person who did not have authority to do so.

10. Indeed, s.97 of the Act only required that the decision maker reasonably suspect those matters. All in all, it was not necessary for the applicant to have been party to a deception. It was sufficient that someone had altered the document who did not have authority to do so. The tribunal found that the document had been so altered and was, therefore, a bogus document.

11. It was then necessary for the tribunal to consider whether public interest criterion 4020 should be waived.  There was scope for that criterion or condition to be waived where there were compelling circumstances that affected the interests of Australia or where there were compelling or compassionate circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen as defined.

12. It was not suggested that the applicant was an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen as defined.  She did not point to anyone else whose interests might be affected by the waiver or failure to waive public interest criterion 4020.  The applicant tried to rely on compelling and compassionate circumstances concerning her financial situation.  However, as she did not fall within the category of the relevant types of people, her financial situation was not relevant.

13. The tribunal considered whether there were any compelling circumstances that affected the interests of Australia.  The tribunal noted that the policy advice manual set out various circumstances where Australia’s interests would be affected.  They include Australia’s trade or business opportunities, Australia’s relationship with foreign governments or the possibility that a person would be able to contribute significantly to Australia’s business, economic, cultural or other development.  The tribunal did not consider that the applicant’s situation constituted compelling circumstances that affected the interests of Australia.

14. The applicant did say that she worked and she had a note from her employer stating that she had been employed since 2010.  However, the tribunal did not accept that circumstance amounted to compelling circumstances affecting the interests of Australia.  The tribunal looked at the departmental guidelines concerning compelling and compassionate circumstances, but was not satisfied that anything in the guidelines or anything in the material generally warranted the waiver of condition 4020.  On that basis, the tribunal affirmed the decision not to grant the applicant a Skilled (Residence) (Class VB) visa. 

15. The applicant said in her application to this court that the grounds of the application were:

    1. natural justice

    2. fairness in hearing

    3. procedural fairness. 

    When invited to address those grounds today, the applicant was not able to do so.  She said that criterion 4020 should be removed because it was not her fault that the false document was provided to the department.  She said that she did not know her results were false and she said that she wanted her case to be referred back to the tribunal.

16. The submissions made by the applicant today really go to the merits of the matter. They fail also to take account of the fact that a document is a bogus document under s.97 of the Act whether or not an applicant knows it to be bogus. The tribunal appears to have given the applicant natural justice. The tribunal invited the applicant to a hearing at which she was represented by a migration agent. She gave evidence. The delegate had rejected the application on the grounds that the IELTS test report was bogus. The applicant was well aware of that issue. There is no reason to suppose that the applicant was taken by surprise in any way by the tribunal’s manner of conducting the hearing or the basis on which the decision turned.

17. In all the circumstances, I am not satisfied that there was any jurisdictional error on the part of the tribunal.  The application must

    
    

    be dismissed. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  5 October 2015