Martins v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 124
Federal Circuit and Family Court of Australia
(DIVISION 2)
Martins v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 124
File number: BRG 141 of 2022 Judgment of: JUDGE EGAN Date of judgment: 21 February 2023 Catchwords: MIGRATION – Where claim that Tribunal ought to have appreciated that the applicant had made an innocent error in completing an application for visa form – where it was claimed that the Tribunal ought to have adjourned the hearing so as to permit the applicant to seek out further evidence in support of his claims – where it was open for the Tribunal to find that the applicant had provided false or misleading information in a material particular to the Department – where there was no basis for granting an adjournment in circumstances where the applicant had had over two years within which to obtain all relevant evidence – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss. 57, 65.
Migration Regulations 1994 (Cth) 4020(1) of Schedule 4
Cases cited: Minister for Immigration and Border Protection v EFX17 [2021] HCA 9
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
Division: Division 2 General Federal Law Number of paragraphs: 25 Date of last submissions: 20 February 2023 Date of hearing: 20 February 2023 Place: Brisbane Solicitor for the Applicant: Mr Finley: Uber Lawyers Counsel for the First Respondent: Mr J Byrnes Solicitor for the First Respondent: MinterEllison The Second Respondent: Submitting appearance, save as to costs ORDERS
BRG 141 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FELIPE GARCIA MARTINS
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE EGAN
DATE OF ORDER:
20 February 2023
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to read “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The Amended Application for Review filed on 25 January 2023 be dismissed.
3.The Applicant pay the First Respondent’s costs of and incidental to the application for review fixed in the amount of $5,900.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Egan
Introduction
The applicant is a male citizen of the Republic of Brazil who applied for a Student (Temporary) (Class TU) Subclass 500 Visa under s. 65 of the Migration Act 1958 (Cth) (the Act) on 31 July 2019.
On 13 October 2021, a delegate of the Minister refused the applicant’s visa application. The delegate found that in his visa application form the applicant had given information which was false or misleading in a material particular, and that the applicant did not meet Public Interest Criterion (PIC) 4020(1) which relevantly provided as follows:
“4020(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, 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 for review of the decision of the delegate by the Administrative Appeals Tribunal (the Tribunal).
The applicant appeared before the Tribunal on 25 February 2022. At that time, the applicant received assistance from a paralegal named Ms Fernandes. The applicant was further assisted by an interpreter fluent in the Portuguese language.
On 17 March 2022, the Tribunal affirmed the decision of the delegate.
Grounds of Review
At the hearing before the Court, the applicant was represented by his lawyer, Mr Finley.
The applicant relied upon an Amended Application for Review filed on 25 January 2023. During the course of the hearing, Mr Finley abandoned reliance upon Grounds 1 and 4 of the Application. Grounds 2 and 3 were as follows:
“2.The Tribunal fell into jurisdictional error by failing to take into consideration the relevant fact of the nuance of meaning between English and Portuguese languages regarding words and questions posed in the form for the application for a visa.
Particulars
a.The refusal of a visa is related to the understanding of the English words in the Visa Application form.
b.The meaning of the word “Conviction” in Portuguese means the convicted person goes to jail.
c.The Applicant did not knowingly provide false information on his visa application form as he relied on the meaning of “conviction” as he understood the word in Portuguese.
d.The applicant did not knowingly provide a false statutory declaration to the Tribunal as he relied on the meaning of “conviction” as he understood the word in Portuguese.
3.The Tribunal fell into jurisdictional error by refusing to grant an extension of time for the provision of evidence of the nuance of meaning between the English and Portuguese languages.
Particulars.
a.At the hearing the Applicant sought time to provide evidence of the nuance of meaning when interpreting the word “convicted” from English to Portuguese.
b.The Tribunal refused to allow time for that evidence to be presented.”
Ground 2 was a claim that the Tribunal fell into jurisdictional error by failing to have due regard to “the nuance of meaning between English and Portuguese languages regarding words and questions posed in the form for the application for a visa”.
In fact, records in the Court Book indicated that the applicant had appeared in the Magistrates Court Court at Tweed Heads and had been convicted of two (2) drug related offences only days before he filled out his visa application form. [1]
[1] Court Book (CB) – Exhibit 1 – pp. 67-68 and 111
Under the heading “Character Declarations” on page 15 of the Student Visa Application Form dated 31 July 2019, the applicant answered NO to the question: [2]
“Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?”
[2] CB p. 44.
On 20 September 2019, the applicant wrote to the Department of Home Affairs, stating as follows: [3]
[3] CB p. 66
“Brisbane 20/09/2019
Dear Department of Home Affairs,
I would like to write this letter in order to explain why I responded “No” to some of the questions in the “Character Declarations” so that I can address the point number 4 of the checklist of documents required that you sent me on 27/08/2019.
Firstly, I would like to deeply apologies for the mistake as it was not my intention at all to try and hide any information of what occurred recently in my life. I am aware that the Department of Home Affairs has access to this information and it would have been extremely silly for me to do this on purpose.
While compiling the online form, I rushed through the final questions and I sincerely did not realized/read properly what they were asking specifically.
Secondly, I would also like to apologize for what happened on that day and I would like to give my word that it will not happen again as it has never happened in the past, neither in Brazil and/or Australia.
…
The officer so decided to take me to the police station, accused me of supply and possession of drugs and asked me to appear on court the day after. I did so, but the day was then postponed by a month. Once I got there, the judge gave me 2 years of good behaviours.
…
Yours sincerely,
Felipe Garcia Martins”
On 4 February 2020, the applicant was sent a Natural Justice letter under s. 57 of the Act inviting the applicant to comment on suspected false information provided to the Department in relation to whether the applicant had ever been convicted of an offence in any country. The applicant was given 28 days to respond.
On 27 February 2020, the applicant in a Statutory Declaration declared as follows: [4]
[4] CB pp. 120 – 121.
“Dear Case Officer,
I would like to kindly explain the reason as to why I answered "No" to the question regarding if I had ever been convicted of an offence in any country.
On 31th March 2019, I went, with a friend, to a Festival in Coffs Harbour. Unfortunately, I made the wrong decision to buy drugs, for my consumption only, prior to the event, which I now truly regret.
A security guard approached me and promptly asked me if I had any drugs on me, to which I said yes to. However, as I was a tipsy from alcohol consumption, I also said to the security guard that because it was my friend's farewell, I would be sharing the drugs with him. Again, this was a mistake, which, I truly regret.
Immediately, the police confiscated my passport and charged me with "Supplying Prohibited Drug Greater Than Indictable and Less Than Commercial Quantity'. I then contacted a solicitor to assist me with my charges.
My first court appearance was set for the 1ˢᵗ April 2019; however, the court postponed the hearing to a later date. The second hearing was set for May 2019; however, my solicitor was unwell, and it was postponed again. The final hearing date was set for the 26ᵗʰ July 2019, were I was given a sentence, as per my police check.
During this process, I was really anxious and stressed, as I have never done anything unlawful and have always obeyed the law in both Brazil and Australia.
I had just renewed my passport during my last trip to Brazil and unfortunately, I had not kept an electronic colour copy. I believe that my passport details were updated with the department when I returned to Australia in October 2018. As the police retained my passport, I was not able to complete my student visa application as I did not have the passport details. This made even more anxious about my current situation, as my visa was due to expiry on the 31ˢᵗ July 2019.
I was able to collect my passport, from Coffs Harbor, on the 30ᵗʰ July 2019. I then rushed back to my Education Agency to complete my visa application.
I sat with my Education Agent and was verbal replying to his questions as he manually entered all the required data into my application. Unfortunately, he just rushed through the character questions and due to my low level of English comprehension of those particular technical terms I totally misunderstood his question and as I did not have the chance to read the application prior to lodging I was unable to pick up on the mistake, which, I deeply apologise for.
I understand, that this was my mistake, and that I should have read the application properly before lodging, but as I was still very emotional stressed with my court situation, my head was just not 100%, in addition, I was also stressed about missing my visa application deadline and being unlawful in Australia. I felt that it had been a bad succession of events happening in my life since March 2019.
I have started my certificate in business, and I am truly enjoying the learning experience. I would like to promise that I won't be doing anything wrongfully in future.
I would like to sincerely apologise for not declaring my police record and that it has never been my intention to lie to the department. I feel very blessed for having the opportunity to study in Australia, which is an amazing country with an exceptional education system.
Please don't hesitate to contact me should you have any questions, look forward to hearing from you,
Kind regards,
Felipe”
It was of note that in the 20 September 2019 letter which the applicant sent to the Department, the applicant claimed that he had rushed through the final questions when compiling the form online, whereas in his Statutory Declaration of 27 February 2020 the applicant claimed that the form was filled out “manually” by his “Education Agent” after he had answered questions put to him by such agent. In neither such communication did the applicant make any reference to his having allegedly misunderstood the meaning of the word “conviction”. In any event, on policy and administrative burden grounds, and absent any legislative construction providing that visa application forms be in a language other than English, the Court rejects any proposition that the execution of visa application forms in a language other than English ought to be facilitated by the Department. [5]
[5] Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 at [22] – [31] inclusive.
Though Ground 2 was prefaced upon the applicant having allegedly misunderstood the true meaning of the word “conviction” at the time of his having answered the relevant question in the visa application form - allegedly by reference to what he believed the word meant in the Portuguese language - the written submissions of the applicant’s migration agent dated 18 February 2022 first addressed such issue in an opaque way at [8] – [12] of such submissions as follows: [6]
“[8]The student visa application was then drafted and lodged on the last day of the applicant's current substantive visa, 31 July 2019.
[9]Unfortunately, the education agent had to rush through the applicant's student visa application due to the applicant's circumstances. Due to this, the applicant misunderstood the question mentioned above and answered 'No'. In part, this was also due to the applicant's low level of English proficiency at the time.
[10] Due to the facts above stated, the applicant has never been given the opportunity to read his student visa application form before lodgement.
[11] The applicant has stated that he is fully aware that the department has access to his police records and could easily access this information. It has never been the applicant's intention to withhold or mislead the department.
[12] The applicant has no police record in Brazil, as shown by the applicant's police clearance provided with the application.
[6] CB p. 199
During the course of the Tribunal hearing, the Tribunal member raised with the applicant the fact that incorrect information had been recorded in his visa application form. At Transcript (T) pp. 5.85 – 6.125 the relevant dialogue was as follows:
“FM: My visa expired on first oh 31 of July and then I applied my visa one day before and ah I was in a bit of rush so I spoke with the guy, the agent and then I didn't understand very well 'cause he didn't speak Portuguese and then when he asked me about the conviction I say no but was a mistake but wasn't my intention to lie anything.
TM: So you accept that he did ask you about any convictions? FM: Yeah he did and then by accident I say no.
TM: How could you say no by accident if you understood he was asking you about convictions and you'd, you'd in fact been convicted of an offence in court but a few days earlier?
FM: I um, I didn't understand because my English at that time wasn't very good so it, they asked me so many questions and then by accident I say no but um I didn't know what he was talking about.
TM: But you just told me before that you, you accept um you understood he was asking you about convictions. Is that right?
FM: Oh no, no sorry.
TM: If you didn't understand the questions he was saying um he was asking you why didn't you try and arrange for a Portuguese interpreter or um or for someone else to explain what he was asking you?
INT: In fact I misunderstood the question because the way they ask about it it refers to whether I have been arrested. So in English it means if I have been arrested.
TM: Um well we'll come to that in a minute but um even if you understood, sorry are you saying you understood the question as have I, have I been arrested?
FM: No.
TM: What did you understand the question to be?
FM: Um I understood that was if I was in the jail before or something like that.
TM: So wouldn't something like that mean the procedure you'd just recently been through in the court?
FM: No.
TM: So when you said in, went through the interpreter in English it means have I been arrested what did you mean?
FM: Um 'cause the word conviction means in Portuguese it's a bit similar and means that you um when you go to the jail do you know?
TM: Okay. Well if you have at least that understanding of the question I'm finding it really difficult to believe that you um, it wasn't ah. I'll start that again. I'm finding it difficult to believe that you didn't purposely conceal this information if you had that understanding of the question. Is there anything more you'd like to say about that?
FM: Um yeah 'cause I had no reason to lie and to hide anything 'cause I know everything's recorded so definitely it was a mistake and yes.
TM: Okay. And I'm not saying I am satisfied but just assume I am satisfied that it is false or misleading information I'm then required to go on and consider if there are compassionate um or compelling circumstances um affecting the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen. Um so I'll ask you about that now. Do you have any um submissions to make about why I should waive the application of public interest criteria 4020 because there are compelling circumstances affecting the interest of Australia?”
The Tribunal, at [24] – [39] of its reasons, appropriately recorded its logical and well-reasoned decision making process on the question as to whether or not the applicant had intentionally provided false or misleading information in a material particular to the Department. Those reasons were as follows:
“[24] The Tribunal asked the applicant if he has any submissions to make about:
a. whether the information he provided was false and misleading; and
b. why he provided an incorrect answer to the question about his past criminal convictions
[25]The applicant said that the day he applied for his visa, it was one day before his visa expired. His visa expired on 31 July 2019 and he applied on 30 July 2019. He said he didn’t understand very well.
[26]He said that he recalls his agent asking him about any convictions and by accident he answered, ‘No’.
[27]The Tribunal asked how he answered, ‘No’ by accident and he said he did not understand English very well and he didn’t realise that his agent was asking him about convictions. The applicant said that he misunderstood the question.
[28]The Tribunal asked the applicant what he understood the question to be. The applicant said he thought he was being asked if he had been in jail before or something like that.
[29]The Tribunal asked, wouldn’t being in gaol or something like that, encompass his recent interactions with the legal system in Australia. The applicant said, ‘No’. He said, ‘The word for conviction in Portuguese mean when you go to the jail’. He said he had no reason to hide anything, he knows everything is recorded and it definitely was a mistake.
[30]The Tribunal asked the applicant why he did not mention or specifically mention his claim that the word ‘conviction’ when translated into Portuguese means something like when you go to jail, in his statutory declaration. The applicant said he did mention that he had made a mistake in the statutory declaration and he didn’t mention this specific point because he thought it was not relevant.
[31]The Tribunal asked the applicant’s migration agent if she had any additional oral submissions to make and she said that she thought it was easy to misunderstand for Portuguese natives as meaning spending time in jail. She mentioned that the court had postponed the applicant’s hearing a number of times and he did not have his passport on him until 30 July 2019 and all of this contributed to him making the incorrect statement.
[32]The applicant confirmed that at the time he submitted his student visa application his agent was from U&I Global and his agent was Biagio Mauri. The Tribunal asked the applicant’s agent why a statutory declaration from Mr Mauri had not been submitted.
[33]Ultimately, the applicant’s migration agent asked for an adjournment of the hearing in order to provide such a statutory declaration if it would help.
[34]The Tribunal considered this request and asked the applicant’s migration agent why a statutory declaration from Mr Mauri had not been sought or submitted when the original visa application was submitted over two and a half years ago.
[35]The applicant’s migration agent said that this had not occurred because there was a statutory declaration from the applicant and she didn’t consider that an additional statutory declaration from Mr Mauri was necessary.
[36]The Tribunal considered this request and ultimately determined not to grant an adjournment on the basis that the applicant and his representative had two and a half years in order to obtain such statutory declaration and the explanation by the applicant’s migration agent does not warrant an adjournment.
[37]Based on the information before the Tribunal and the evidence given to the Tribunal during the hearing, the Tribunal is satisfied that the information provided by the applicant is both false and misleading. That is, it was incorrect as to whether the applicant had ever been convicted of an offence in any country including any conviction which is now removed from official records and was provided to mislead an assessment of whether the applicant met the criteria for the student visa. The Tribunal is satisfied that it was information that was relevant to one 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. That is, the information was in relation to a material particular to the consideration of a Student visa, that being satisfying character public interest criteria in PIC 4001.
[38]The Tribunal is satisfied that the information the applicant provided was both false and misleading in circumstances where the applicant has told the Tribunal that he had at least some understanding of what the question was and that it involved when you go to jail. The Tribunal does not accept the applicant’s explanation for providing the false and misleading information when he did have such comprehension of the question being asked. The Tribunal finds that it is more likely that the applicant purposely mislead the department to influence the department’s decision on his Student visa application.
[39] Therefore, the applicant does not meet PIC 4020(1).”
Having found that the applicant had intentionally provided false or misleading information to the Department, the Tribunal then appropriately considered whether the requirements of PIC 4020(1) ought to be waived based upon a consideration of the matters as set out in PIC4020(4) and (5), namely:
“4020
…
(4) The Minister may waive the requirements of 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 is given; and
(b)when making a decision on or not the decision is made because of that information.”
The Court accepts the submissions made on behalf of the first respondent that the decision of the Tribunal to find that the applicant had intentionally provided false or misleading information to the Department was open on the evidence before it, and that there were no compelling or compassionate reasons advanced on behalf of the applicant which justified waiver of the PIC 4020(1) criteria. The Court further accepted the submissions made on behalf of the first respondent to the effect that Ground 2 sought from the Court an impermissible merits review of the decision of the Tribunal. Such ground was without merit.
As to Ground 3, it was submitted on behalf of the applicant at the time of the hearing before the Court that the Tribunal erred in failing to adjourn the hearing so as to give extra time to the applicant to gather further supporting evidence from his original migration agent going to the question of how the applicant was allegedly rushed at the time that the application for visa form had been filled out. There is no merit to such claim.
The Tribunal appropriately set out its reasons for refusing the adjournment application at [30] – [36] of its reasons. The Tribunal noted that though the applicant had had at least two years within which some evidence could have been obtained in written form from the former migration agent, no such attempt had been made. At the time of the hearing, the applicant’s migration agent said that it wasn’t considered necessary that any additional Statutory Declaration ought to have been obtained from the original migration agent. In such circumstances, the Tribunal did not err in failing to grant an adjournment to the applicant where any evidence which might have been elicited from the first migration agent was a matter of mere speculation. The facts of this matter were far distant from those which the High Court was dealing with in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [53].
Also, to the extent that it might have been suggested that the argument advanced on behalf of the applicant encroached upon the principle that jurisdictional error could arise from a decision maker’s failure to make an obvious inquiry about a critical fact, there is no merit to such argument. There was no evidence before the Tribunal which would have so excited it to make any further inquiry or seek out any further document. It was the responsibility of the applicant to put before the Tribunal all of the material evidence which was considered to be supportive of his claims. The applicant cannot complain about any lack of evidence before the Court in circumstances where he failed to ensure that all evidence supporting his case was adduced. There was no merit to Ground 2.
The applicant has failed to establish jurisdictional error on the part of the Tribunal.
The Amended Application for Review is without merit and is dismissed.
The Court will hear the parties as to costs.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan. Associate:
Dated: 20 February 2023
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