Mudiyanselage v MIAC

Case [2013] FCA 266

FEDERAL COURT OF AUSTRALIA

Mudiyanselage v Minister for Immigration and Citizenship [2013] FCA 266

Citation: Mudiyanselage v Minister for Immigration and Citizenship [2013] FCA 266
Appeal from: Mudiyanselage v Minister for Immigration & Anor [2012] FMCA 887
Parties: SURANGANI DILUPA WEERASINGHA MUDIYANSELAGE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL
File number: NSD 1560 of 2012
Judge: TRACEY J
Date of judgment: 27 March 2013
Catchwords: MIGRATION – appeal from decision of Federal Magistrate dismissing application for judicial review of decision of Migration Review Tribunal – whether Federal Magistrate erred in construction of certain aspect of public interest criterion – consideration of appropriate construction of criterion.  
Legislation: Migration Act 1958 (Cth) – ss 5(9), 97
Migration Amendment Regulations 2011 (No 1) (Cth) – regs 1.03, 5(2)
Migration Regulations 1994 (Cth) – Schedules 2, 4
Cases cited: Mudiyanselage v Minister for Immigration [2012] FMCA 887 – referred to
Singh v Minister for Immigration [2012] FMCA 14 – considered
Date of hearing: 8 March 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 40
Counsel for the Appellant: Mr L Karp
Solicitor for the Appellant: Christopher Levingston & Associates
Counsel for the Respondents: Mr M J Smith
Solicitor for the Respondents: Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1560 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

SURANGANI DILUPA WEERASINGHA MUDIYANSELAGE
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

TRACEY J

DATE OF ORDER:

27 MARCH 2013

WHERE MADE:

MELBOURNE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

1.The appeal be dismissed

2.The appellant pay the first respondent’s costs of the appeal.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1560 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

SURANGANI DILUPA WEERASINGHA MUDIYANSELAGE
Appellant
AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGE:

TRACEY J

DATE:

27 MARCH 2013

PLACE:

MELBOURNE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

  1. This is an appeal from a decision of the Federal Magistrates Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (“the Tribunal”):  see Mudiyanselage v Minister for Immigration [2012] FMCA 887. The Tribunal had affirmed the decision of a delegate of the first respondent (“the Minister”) not to grant the appellant a protection visa.

  2. The appellant is a Sri Lankan citizen who arrived in Australia in 2006 on a student visa.  On 21 October 2008 she applied for a Skilled (Provisional) (Class VC) visa.  The delegate made a decision to refuse the application on 25 September 2009.  The appellant then applied to the Tribunal for a review of that decision.

    BACKGROUND

  3. The Skilled (Provisional) (Class VC) visa was designed to permit graduates of Australian educational institutions to remain in Australia temporarily for the purpose of…

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AGLC
Mudiyanselage v Minister for Immigration and Citizenship [2013] FCA 266
Case
[2013] FCA 266
Decision Date

CaseChat Overview and Summary

Mudiyanselage v MIAC is a case involving a Sri Lankan citizen who had applied for a Skilled (Provisional) (Class VC) visa. The appellant’s application for the visa was refused by the delegate of the Minister. The appellant sought a review of that decision by the Migration Review Tribunal (the Tribunal). The Tribunal upheld the delegate’s decision to refuse the application. The appellant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. The Federal Magistrate dismissed the appellant’s application. The appellant appeals the decision of the Federal Magistrate to the Federal Court.

The appeal raises questions about the proper interpretation of the term “bogus document” in the context of the public interest criterion contained in the Migration Regulations. The appellant argued that the Federal Magistrate had erred in construing the phrase “bogus document or information that is false or misleading in a material particular” in the public interest criterion.

The court found that the term “bogus document” is defined in the Act to mean a document that the Minister reasonably suspects was obtained because of a false or misleading statement, whether or not made knowingly. The court found that the Tribunal had correctly concluded that the first assessment by Trade Recognition Australia was a bogus document because it was a document that the Minister reasonably suspected was obtained because of the false or misleading statement that the appellant had undertaken voluntary employment with Dinkums. The court also found that the second assessment by Trade Recognition Australia was irrelevant to determining whether the appellant satisfied the public interest criterion. The court found that the exercise of the Tribunal’s discretion not to waive the requirements of the public interest criterion had not miscarried.

The court dismissed the appeal and ordered the appellant to pay the costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed

2. The appellant pay the first respondent’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 appellant is a Sri Lankan citizen who arrived in Australia in 2006 on a student visa. On 21 October 2008 she applied for a Skilled (Provisional) (Class VC) visa. The delegate made a decision to refuse the application on 25 September 2009. The appellant then applied to the Tribunal for a review of that decision.BACKGROUND The Skilled (Provisional) (Class VC) visa was designed to permit graduates of Australian educational institutions to remain in Australia temporarily for the purpose of obtaining skills and qualifications which are necessary for them to qualify for permanent General Skilled Migration visas. The Skilled (Provisional) (Class VC) visa had two sub-classes. One of these was sub-class 485 (Skilled-Graduate). In her application the appellant identified her skilled occupation as being that of a graphic pre-press tradesperson. In order to obtain the visa she had to satisfy a number of criteria. One of them was that she obtain a skills assessment from an assessing authority, which had been approved in writing by the relevant Minister, for her occupation. A second criterion was that no evidence had become available by the time the decision was made that any information given or used in support of the application was false or misleading in a material particular. The appellant’s application was supported by an assessment made by an organisation named Trade Recognition Australia (“TRA”) which purported to be an approved assessing authority. The appellant had provided TRA with a written reference from a business known as Dinkums the Copy Centre (“Dinkums”). The reference was provided by a person named Don Mustafa who signed as “General Manager” of the business. The letter stated that the appellant had completed in excess of 920 hours of work experience with Dinkums during the period between June 2007 and March 2008. Her work was said to have been voluntary and involved obtaining experience of a kind relevant to an assessment of her skills. The delegate of the Minister refused the appellant’s application. He did so on a number of grounds including that the appellant had never been employed by Dinkums in any capacity, voluntary or otherwise, that Mr Mustafa was not the General Manager of Dinkums, that he had never been authorised to provide work reference letters on behalf of Dinkums and that the favourable skills assessment from TRA was, as a result, based, in part, on the false and misleading material contained in the reference from Dinkums. On 15 October 2009 the appellant sought review of the delegate’s decision in the Tribunal.THE LEGISLATION The Tribunal was not to conduct a hearing until late in 2011 and its decision was not delivered until early the following year. In the meantime the legislation had changed. The second criterion referred to above at [5] had been repealed and replaced with a new public interest criterion. On 2 April 2011 the Migration Amendment Regulations 2011 (No 1) (Cth) came into effect. They substituted a requirement that applicants for a sub-class 485 visa satisfy the requirements of Public Interest Criterion 4020 (“PIC4020”) which was prescribed in Part 1 of Schedule 4 to the Migration Regulations 1994 (Cth) (“the Migration Regulations”): see para 485.224(a) of Schedule 2 to the Migration Regulations. These amendments applied in relation to visa applications which had not been finally determined prior to 2 April 2011: Migration Amendment Regulations 2011 (No 1) (Cth), Reg 5(2). The appellant’s application had not been finally determined by that date because it remained under review by the Tribunal: see s 5(9) of the Migration Act 1958 (Cth) (“the Act”).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal found that the appellant did not meet the requirements of PIC4020 because, notwithstanding the withdrawal of the first TRA assessment, the appellant had provided a bogus document (the assessment) to the Minister and that she had provided false and misleading information (the Dinkums letter) to the TRA in order to secure the assessment. The original skills assessment was a “bogus document” because it was a document that the Minister reasonably suspected was obtained because of the false or misleading statement that the appellant had undertaken voluntary employment with Dinkims. The Tribunal found that, even if the appellant was a victim of the fraud of Mr Liew and had since obtained a positive TRA assessment based on her work for Australia Post, her circumstances were not compelling. Consequently, the Tribunal found that it was not appropriate to waive the requirements of PIC4020(1) and affirmed the decision of the delegate to refuse the application for the visa.THE FEDERAL MAGISTRATE’S COURT DECISION On 5 June 2012, the appellant filed an amended application for judicial review of the Tribunal’s decision in the Federal Magistrates Court. She alleged that the Tribunal had erred by failing to consider relevant information, taking into account irrelevant considerations and wrongly construing and applying PIC4020(4) which permitted the Minister to waive the requirement that the relevant public interest criterion must be met. The appellant argued that the letter from Dinkums had only influenced the first assessment made by TRA. That assessment had been withdrawn and the second favourable assessment had not been influenced by it. It was this second favourable assessment which was before the Minister’s delegate. The Tribunal had erred by failing to act on the second assessment and by taking the first into consideration. The Federal Magistrate held that there was evidence before the Tribunal which entitled it to conclude that the first TRA assessment was a bogus document. That bogus document had been submitted in support of the appellant’s application for a visa. It mattered not that it had subsequently been withdrawn and had not been acted on. There was, therefore, evidence before the Tribunal that entitled it to conclude that the appellant had given or caused to be given a bogus document to the Minister in relation to her application. The Federal Magistrate found that the second TRA assessment was not a matter that the Tribunal was required to consider when determining whether the appellant satisfied PIC4020(1): it was irrelevant to determining this issue. The Federal Magistrate found that the exercise of the Tribunal’s discretion not to waive the requirements of PIC4020(1) had not miscarried. A challenge to this finding was not pressed on appeal. The application was dismissed with costs.THE PRESENT APPEAL In her notice of appeal, the appellant relied on four grounds. Only one of these was pressed. It was that the Federal Magistrate had erred in construing the phrase “bogus document or information that is false or misleading in a material particular” in PIC4020.

Ratio Decidendi

Legal Principle Established

The term “bogus document” is defined in s 97 of the Act to mean a document that the Minister reasonably suspects is a document that:“(a)purports to have been, but was not, issued in respect of the person; or(b)is counterfeit or has been altered by a person who does not have authority to do so; or(c)was obtained because of a false or misleading statement, whether or not made knowingly.”The term bears the same meaning in PIC4020: see Reg 1.03 of the Migration Regulations.APPEAL TO THE MIGRATION REVIEW TRIBUNAL The appellant supported her application to the Tribunal with a certified copy of a letter from TRA dated 24 September 2009. The letter advised that its earlier skills assessment had been withdrawn. The appellant had lodged a new application for a skills assessment on 31 August 2009. It did not rely on the Dinkums letter. That assessment was processed. On 30 October 2010 the Tribunal was provided with a copy of a favourable skills assessment which had been given to the appellant by TRA in a letter dated 10 November 2009. There matters rested until 13 December 2011 when the appellant appeared before the Tribunal. She accepted that she had never worked at Dinkums. She claimed to have undertaken in excess of 1000 hours of voluntary work experience as a pre-press tradesperson at three printing companies, Marvel Printing Industry, Dot Print and a third printer in Huntingdale purportedly owned by St Georges Institute (where the appellant was studying). She said that the work was organised by the job coordinator at St Georges Institute, Mr James Liew. She had had difficulty getting a work experience letter from Mr Liew in relation to the work, and that when he provided her with the letter, it purported to come from Dinkums. The appellant claimed that she raised with Mr Liew her concerns about the company named in the letter as well as the fact that the letter had not been signed by one of her supervisors. He had told her not to worry as he owned the three companies at which she had volunteered. She claimed to have been led to believe that the letter was from one of the managing directors at the headquarters of the companies, and that this explained the use of the name Dinkums and the signature of a Mr Don Mustafa. She had submitted the letter as part of her TRA assessment on this basis. She claimed that subsequently she had completed over 900 hours of experience at Australia Post, for whom she then worked, and that, based on this work, she had obtained the second positive skills assessment from TRA.THE TRIBUNAL’S DECISION The Tribunal handed down its decision on 24 February 2012. The Tribunal found that the appellant did not meet the requirements of PIC4020 because, notwithstanding the withdrawal of the first TRA assessment, the appellant had provided a bogus document (the assessment) to the Minister and that she had provided false and misleading information (the Dinkums letter) to the TRA in order to secure the assessment. The original skills assessment was a “bogus document” because it was a document that the Minister reasonably suspected was obtained because of the false or misleading statement that the appellant had undertaken voluntary employment with Dinkims. The Tribunal found that, even if the appellant was a victim of the fraud of Mr Liew and had since obtained a positive TRA assessment based on her work for Australia Post, her circumstances were not compelling. Consequently, the Tribunal found that it was not appropriate to waive the requirements of PIC4020(1) and affirmed the decision of the delegate to refuse the application for the visa.THE FEDERAL MAGISTRATE’S COURT DECISION