MIAC v Brar

Case [2012] FCAFC 30

FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Citizenship v Brar [2012] FCAFC 30

Citation: Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
Appeal from: Brar v Minister for Immigration & Anor [2011] FMCA 435
Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v MANJINDER SINGH BRAR and MIGRATION REVIEW TRIBUNAL
File number: NSD 1370 of 2011
Judges: NORTH, GREENWOOD AND BESANKO JJ
Date of judgment: 21 March 2012
Catchwords:

MIGRATION - STATUTORY INTERPRETATION – appeal from orders of Federal Magistrates Court on judicial review – construction of ss 103 and 107 of Migration Act 1958 (Cth) – whether failure to identify correct recipient under s 103 fatal to s 107 notice for purposes of cancellation of visa under ss 108 and 109.

Held: Appeal allowed – proceeding remitted to the Federal Magistrates Court to consider other grounds of application for judicial review – ss 107 and 108 should be read in light of the statutory purpose to ensure procedural fairness through provision of sufficient particulars of alleged non-compliance.

MIGRATION – STATUTORY INTERPRETATION – consideration of requirements of 359A(1) – whether information and invitation given by Migration Review Tribunal misleading

Held: Appeal allowed – s 359A(1) requires only that clear particulars of information the Tribunal considers would lead to affirmation of decision under review be given – inclusion of additional information or finding of fact does not result in non-compliance.
Legislation: Migration Act 1958 (Cth) ss 5, 97, 101, 103, 107, 109, 359A
Migration Amendment (Border Integrity) Act 2007 (Cth)
Migration Regulations 1994 (Cth) reg 1.03
Cases cited:

Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241, cited

Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627, cited
Minister for Immigration and Multicultural Affairs v McDade (2001) 109 FCR 137, cited
Saleem v Migration Review Tribunal [2004] FCA 234
SHJB v Minister for Immigration and Multicultural Affairs [2003] FCAFC 330, cited
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, cited
SZJBD v Minister for Immigration and Citizenship (2009) 179 FCR 109, cited
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471, cited
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235, cited
Zhong v Minister for Immigration and Citizenship (2008) 171 FCR 444, cited

Date of hearing: 15 November 2011
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 77
Counsel for the Appellant: Mr N Williams SC and Mr T Reilly
Solicitor for the Appellant: Sparke Helmore
Counsel for the First Respondent: Mr J Young
Solicitor for the First Respondent: Shamser Thapa & Associates
Counsel for the Second Respondent: The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1370 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant
AND:

MANJINDER SINGH BRAR
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGES:

NORTH, GREENWOOD AND…

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Minister for Immigration v Brar [2012] FCAFC 30
Case
[2012] FCAFC 30
Decision Date

CaseChat Overview and Summary

The respondent, a citizen of India, appealed against orders of the Federal Magistrates Court which dismissed his application for judicial review of decisions of the Migration Review Tribunal. The Tribunal had dismissed the respondent’s application for review of a decision of a delegate of the Minister to cancel his visa under s 109 of the Migration Act 1958 (Cth). The Tribunal had concluded that the decision of the delegate was not legally flawed and remitted the matter to the delegate to consider whether there were any prescribed circumstances in which the visa must be cancelled. The respondent’s application for judicial review was founded on 10 grounds. The Federal Magistrates Court dismissed the application on grounds 3, 4, 5, 6, 7, 9 and 10. The respondent appealed against the orders of the Federal Magistrates Court on grounds 1, 2 and 8. The central issue in the appeal was whether the notice under s 107 of the Act was fatally flawed because it did not identify the correct recipient of the bogus document. A related issue was whether the Tribunal had failed to comply with s 359A(1) of the Act by including additional information in its letter to the respondent dated 19 November 2010. The Court held that the failure to identify the correct recipient of the bogus document was not fatal to the notice under s 107 of the Act. The Court held that ss 107 and 108 should be read in light of the statutory purpose to ensure procedural fairness through the provision of sufficient particulars of alleged non-compliance. The Court held that s 359A(1) required only that clear particulars of the information the Tribunal considered would lead to affirmation of the decision under review be given. The inclusion of additional information or finding of fact did not result in non-compliance. The Court allowed the appeal, set aside the orders of the Federal Magistrates Court and remitted the proceeding to that Court for consideration of the remaining grounds of the respondent’s application for judicial review. The Court also ordered that the respondent pay the appellant’s costs of the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The declarations and orders made by the Federal Magistrates Court on 28 July 2011 be set aside.

3. The proceeding be remitted to the Federal Magistrates Court for hearing and determination of the remaining grounds of the applicant’s Amended Application dated 17 May 2011, being grounds 1, 2, 5, 6, 7, 9 and 10 and the costs of that application including costs to date.

4. The respondent pay the appellant’s costs of the appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The Tribunal was the second respondent to the appeal but it took no active part in the appeal. In the circumstances it is convenient to refer to the first respondent as the respondent.THE FACTSBackground and the Delegate’s decision The respondent is a 27 year old male who is a citizen of India. He came to Australia in 2006. On 24 May 2008 he applied for a Skilled Residence-Sponsored Class VB subclass 886 visa. His application consisted of a pro-forma application form which had been completed and a letter with enclosures from his immigration agent. The letter which was dated 24 May 2008 was addressed to “The Department of Immigration and Citizenship, Adelaide Skilled Processing Centre, GPO Box 1638, Adelaide SA 5001”. One of the enclosures with the letter dated 24 May 2008 was a letter from an organisation called Trades Recognition Australia (Department of Education, Employment and Workplace Relations) (“TRA”) dated 6 February 2008. The TRA letter stated that the respondent’s application for skills assessment of his training or work experience, or both, for the purposes of migration to Australia had been successful. The TRA letter stated that the organisation was satisfied on the evidence provided that the respondent had “900 hours directly related work experience”. The evidence provided appears to have been a document from the owner of a business called Dom’s Family Bistro and Pizza of Thomastown, Victoria which stated that the respondent had undertaken more than 900 hours unpaid work experience as a cook at Dom’s Family Restaurant (“Dom’s”) between 21 December 2008 and 28 December 2007. The Tribunal found that the respondent had lodged his application on an online system. On 31 March 2009 the respondent was granted a Skilled Residence-Sponsored Class VB subclass 886 visa (“the visa”). It appears that late in 2009 the Department of Immigration and Citizenship (“the Department”) received information which supported a conclusion that the information from Dom’s in relation to the respondent was false. A delegate of the Minister considered that there had been, or may have been, non-compliance with ss 101(b) and 103 of the Migration Act 1958 (Cth) (“the Act”). The Delegate decided to serve a notice under s 107 of the Act of an intention to consider cancellation of the respondent’s visa under s 109 of the Act and that was done by letter dated 30 June 2010. There is a suggestion in both the reasons of the Delegate and the reasons of the Tribunal that subsequent notices were served on the respondent by email, but the application for judicial review before the Federal Magistrates Court and the appeal to this Court were conducted by both parties on the basis that the relevant notice for the purposes of s 107 of the Act was the letter from the Delegate dated 30 June 2010. The letter under s 107 referred to non-compliance or possible non-compliance by the respondent with ss 101(b) and 103 of the Act. The letter stated that on 24 May 2008 the respondent had “lodged an application for a Skilled Residence-Sponsored Class VB subclass 886 visa at an onshore processing centre …”. The central allegation that the work reference letter from Dom’s was fraudulently obtained was fully particularised in the letter. As far as possible non-compliance with s 103 was concerned, the letter stated as follows:Section 103 – Evidence of non-complianceThe department finds that the work reference letter from Dom’s Family Bistro & Pizza was fraudulently obtained. You then provided the fraudulent work reference to TRA for your pre-migration skills assessment. The skills assessment was obtained through false and misleading statements and therefore is considered to be a bogus document within the meaning of section 97 of the Act.You then presented the positive skills assessment from TRA to an officer of the department who was performing a function under the Act (that function being assessing the client’s visa application).In giving the bogus TRA skills assessment, to an officer of the department, you have failed to comply with section 103.The words we have italicised are significant in terms of one of the principal arguments on the appeal.

Evidence

Evidence Before The Court

The letter under s 107 referred to non-compliance or possible non-compliance by the respondent with ss 101(b) and 103 of the Act. The letter stated that on 24 May 2008 the respondent had “lodged an application for a Skilled Residence-Sponsored Class VB subclass 886 visa at an onshore processing centre …”. The central allegation that the work reference letter from Dom’s was fraudulently obtained was fully particularised in the letter. As far as possible non-compliance with s 103 was concerned, the letter stated as follows:Section 103 – Evidence of non-complianceThe department finds that the work reference letter from Dom’s Family Bistro & Pizza was fraudulently obtained. You then provided the fraudulent work reference to TRA for your pre-migration skills assessment. The skills assessment was obtained through false and misleading statements and therefore is considered to be a bogus document within the meaning of section 97 of the Act.You then presented the positive skills assessment from TRA to an officer of the department who was performing a function under the Act (that function being assessing the client’s visa application).In giving the bogus TRA skills assessment, to an officer of the department, you have failed to comply with section 103.The words we have italicised are significant in terms of one of the principal arguments on the appeal. The respondent replied to the Delegate’s letter by a letter with enclosures from his solicitors dated 19 July 2010. The enclosures included a statutory declaration from the respondent stating, among other things, that he had worked at Dom’s from December 2006 to December 2007. The Delegate found that the respondent had failed to comply with ss 101(b) and 103 of the Act and, on 12 October 2010, she decided to cancel the respondent’s visa. The Delegate advised the respondent of her decision by letter dated the same date.The application before the Tribunal and its reasons On 19 October 2010 the respondent applied to the Tribunal for a review of the Delegate’s decision. He attached to his written application for review the Delegate’s letter dated 12 October 2010 and a copy of the decision record signed by the Delegate. On 19 November 2010 the Tribunal wrote to the respondent giving him the opportunity to comment on information which the Tribunal considered “would, subject to [the respondent’s] comments or response, be the reason, or a part of the reason, for affirming the decision under review”. That letter was sent pursuant to s 359A of the Act. It is necessary to set out certain passages in this letter because the appellant challenges a conclusion by the Federal Magistrate that the Tribunal failed to comply with s 359A of the Act. The Tribunal’s letter dated 19 November 2010 relevantly provided as follows:Invitation to comment on or respond to informationIn conducting its review, the Tribunal is required by the Migration Act to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.Please note, however, that the Tribunal has not made up its mind about the information.The particulars of the information are:You are invited to comment on the particulars of information that would, subject to any comments you may offer, be the reason or part of the reason for affirming the decision under review, namely:(a)that you were not employed as a cook or in any capacity from 21 December 2006 to 28 December 2007 or at any other time at Dom’s Family Bistro and Pizza (‘Dom’s’), contrary to the claims made in a purported work reference submitted in support of your application for a skills assessment by Trades Recognition Australia (TRA);(b)that in the course of an interview with Departmental investigators in November 2009, an individual who was highly placed in the provision of cookery training to international students admitted to receiving cash payments from numerous visa applicants for fabricating employment references on their behalf, and paying the owners of Dom’s and other businesses between $300 and $400 for their signatures on each such document. Hundreds of false work references were found at the residence of this individual, who confirmed that no international students had worked at these businesses;(c)that the abovementioned purported work reference procured at your request by the intermediary and signed by the owner of Dom’s, which falsely asserted that you had completed over 900 hours of supervised relevant work experience at that establishment, was knowingly submitted by you to Trades Recognition Australia (TRA), from which you duly received a favourable skills assessment;(d)that knowing that the favourable TRA skills assessment had been obtained fraudulently on the basis of a non-genuine work reference and non-existent work experience, you submitted the TRA skills assessment, a bogus document within the meaning of s.97(c) of the Act, to the Department in support of your subclass 886 visa application.This information would be the reason or part of the reason for affirming the decision under review because in assessing your claims for a subclass 886 visa, the delegate assigned you 60 points in the general points test (GPT) for having a skilled occupation (Cook – ASCO Code 4513-11) which, in conjunction with points assigned for other relevant attributes, resulted in your obtaining an overall score in the GPT of 120 points, which equated with the qualifying score at the relevant time. Without the falsely claimed work experience attested to in the purported work reference mentioned above, you would not have received the favourable, but bogus, TRA skills assessment as a cook. Without the bogus TRA skills assessment, you would not have been awarded 60 points in the GPT and would not have achieved the pass or pool marks. Consequently, your application for a subclass 886 visa, and indeed for any other visa within the Class VB, would not have been successful, and you would not have acquired permanent residence.

Decision

Reasons for decision

Although the Minister has a discretion whether or not to give a notice under s 107, the giving of such a notice is a condition of the power to cancel a visa under s 109. That follows from the terms of ss 108 and 109 which are as follows:108 Decision about non-complianceThe Minister is to:(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and(b)decide whether there was non-compliance by the visa holder in the way described in the notice.(Emphasis added.)109Cancellation of visa if information incorrect(1)The Minister, after:(a)deciding under section 108 that there was non-compliance by the holder of a visa; and(b)considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and(c)having regard to any prescribed circumstances; may cancel the visa.(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the circumstances in which a visa must be cancelled. The Minister’s power to cancel a visa under s 109 only arises if the Minister decides under s 108 that there has been non-compliance by the holder of the visa. By reason of s 108 the Minister’s inquiry is limited to the question of whether there was non-compliance in the way described in the notice. In other words, it would be beyond the Minister’s power to inquire into whether there was non-compliance in a way not described in the notice. In this way the giving of a notice under s 107 becomes a key step in the process which may lead to the cancellation of a visa under s 109 and performs the function of providing the procedural fairness identified in s 107 to the holder of the visa. If the notice under s 107 does not describe the non-compliance, or if the Minister decides that there has been non-compliance in a way not described in the notice, then the Minister has exceeded the power given in s 108 and s 109. Senior counsel for the appellant argued on the appeal that it was quite clear that the bogus document had been given to an officer and not an authorised system. He referred the Court to the definition of “Internet application” in reg 1.03 of the Migration Regulations 1994 (Cth). He also referred the Court to the amendment which introduced the concept of “authorised system” being the Migration Amendment (Border Integrity) Act 2007 (Cth) and he made submissions as to what he said was the clear purpose of the amendment. That purpose was, he submitted, quite unrelated to the making of an internet application. He attached to his written reply to the respondent’s written submissions what he contended was the only authorisation of an inbound automated processing system (that is, authorised system) being a system called “Smartgate”. His analysis does seem to make it clear that the online system which was used by the respondent to make his application was not an authorised system. If that conclusion is correct, then the appellant submitted that, in the absence of direct evidence, the appropriate inference is that the bogus document was presented to an officer.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.