MUKHIA v Minister for Immigration

[2017] FCCA 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

MUKHIA & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2015

Catchwords:
MIGRATION – Application for skilled sponsored (Class VB) visa – application for extension of time – extensive delay in filing of application – applicant sought Ministerial intervention – merits of substantive application – bogus documents filed with Tribunal – whether the Tribunal acted unreasonably by denying further time for investigation of bogus documents by applicant – was the Tribunal’s decision affected by fraud – insufficient merit to allow order extending period within in which to file application – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.351, 477

Migration Regulations 1994 (Cth), cl.886.213 of sch.2, cl.4020 of sch.4

Cases cited:

Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35
Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169; [2014] FCAFC 42
Vella v Minister for Immigration & Border Protection (2015) 90 ALJR 89; [2015] HCA 42

First Applicant: JOY KOMALJIT MUKHIA

Second Applicant: MONICA MUKHIA

Third Applicant: PRASANNA JIT MUKHIA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1868 of 2016

Judgment of: Judge Smith

Hearing date: 21 August 2017

Date of Last Submission: 21 August 2017

Delivered at: Sydney

Delivered on: 29 September 2017

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Mr A Keevers, Sparke Helmore

ORDERS

1. The application for an order under s.477(2) of the Migration Act 1958 (Cth) is refused.

2. The application is otherwise dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1868 of 2016

JOY KOMALJIT MUKHIA

First Applicant

MONICA MUKHIA

Second Applicant

PRASANNA JIT MUKHIA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are citizens of Nepal. The first and second applicants are respectively husband and wife and the third applicant is their daughter. It is convenient to refer to the first applicant as the applicant.

2. On 4 June 2010, the applicant made an application for a Skilled Sponsored (Class VB, subclass 886) visa. It was a criterion for the grant of that visa that the applicant have competent English: cl.886.213 of sch.2 to the Migration Regulations1994 (Cth) (Regulations). One way of establishing that criterion is to achieve a test score of at least 6.0 for each of the four test components, in a test undertaken under the International English Language Testing System (IELTS).

3. On 10 April 2011, the applicant who was represented by migration agents sent the Department an IELTS English test result dated 22 July 2010. That test result was queried by an officer of the Department and the applicant accepted that the results of the test actually undertaken did not satisfy the competent English test. Subsequently, on 3 September 2012, the Department received a letter from Navitas, an English Test Centre, dated 30 August 2012 enclosing an IELTS test dated 21 July 2012 purporting to be in respect of the applicant. That test showed that the applicant received at least a mark of 6.0 in each of the four tests.

4. On 5 March 2014, an officer of the Department wrote to the applicant indicating that a check of the IELTS online verification system indicated that the scores achieved for each test, to which the certificate related, did not achieve a score of 6.0. The letter indicated that the author had reason to believe that the IELTS test report was a bogus document and explained that that might be a reason for refusing to grant the visa.

5. In response to the Department’s letter, the applicant said that he had been told by the relevant examiner that “I got 6 in each band and they forwarded the IELTS results directly to immigration, not me”. The applicant denied having intentionally submitted a false IELTS test.

6. On 16 October 2014, a delegate of the Minister made a decision to refuse to grant the applicant a visa.  The delegate had reason to believe that the IELTS test and cover letter last received by the Department were bogus documents, and submitted to the Department by the applicant.

7. The applicant applied to the Migration Review Tribunal[1] for review of the delegate’s decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

Tribunal’s decision

1. The applicant attended a hearing conducted by the Tribunal on 16 March 2015. At the hearing the Tribunal raised the issue of the IELTS test report and indicated that the information concerning it may be a reason for its decision. The applicant denied that he had ever seen the letter or the IELTS test result and asked for time to obtain evidence from a writing specialist; as well as time to sit additional IELTS tests. The Tribunal refused those requests although it allowed time for further material to be submitted.

2. On 5 May 2015, the Tribunal made its decision to affirm the delegate’s decision. Like the delegate before it, the Tribunal found that it had reason to believe that the IELTS test report and letter from the examiner were bogus documents and that the applicant had provided them to the Department. The Tribunal decided not to waive the requirement of PIC 4020(1)[2].

   [2] Public Interest Criterion 4020 of sch.4 of the Migration Regulations 1994 (Cth).

3. On 2 June 2015, the applicant filed an application for judicial review of the Tribunal’s decision. On 9 October 2015, the applicant filed a notice of discontinuance of those proceedings. The applicant then applied to the Minister for the exercise of the Minister’s discretion under s.351 of the Migration Act 1958 (Cth) (Act) to make a more favourable decision than that of the Tribunal. On 1 July 2016, the applicant was notified that his application for Ministerial intervention was unsuccessful. On 19 July 2016, the applicant lodged this application seeking judicial review of the Tribunal’s decision.

Consideration

1. An application for judicial review of the Tribunal’s decision has to be made within 35 days of the date of that decision: s.477(1) of the Act. This application was filed 441 days after the date of the Tribunal’s decision and so is out of time. However, this Court has power to extend the period within which the application for judicial review may be made under s.477(2) if:

   a)an application for that order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make such an order; and

b)the Court is satisfied that it is necessary in the interests of justice to make the order.

1. There is no issue that the first of these conditions has been satisfied in this case. The issue then, is whether it is necessary in the interests of the administration of justice, that there be an order extending the period within which the application may be made.

2. The applicant addressed two issues in this respect: first, the reason for the delay in bringing the proceedings; and secondly, the merits of the substantive grounds. In addition to those two matters, the first respondent accepted that there was no real prejudice that would be suffered if an order for an extension of time were made by this Court.

3. For the reasons that follow, I am not satisfied that it is in the interests of the administration of justice that there be an order extending the period for making an application for review of the Tribunal’s decision. In summary, I have taken into account the length of the delay, the reasons given by the applicant for that delay, the merits of the grounds raised by the applicant and the lack of any prejudice to the Minister. There are other suggestions in the applicant’s evidence that he plays a useful role in the Australian society and is of good character. While I have taken those matters into account to some extent, I give them very little weight in comparison to the other matters and they do not change my decision one way or the other.

Delay in filing application

1. The delay in this case is extensive and, in my view, in order for me to be satisfied that it is in the interests of the administration of justice to make the order requested, the applicant must show that his case is exceptional: Vella v Minister for Immigration & Border Protection (2015) 90 ALJR 89 at [3]; [2015] HCA 42.

2. The applicant’s explanation for his actions in discontinuing the proceedings, and instead seeking the exercise of a non-compellable power of the Minister, was that he was threatened by his then solicitor and forced to do so. I do not accept that assertion.

3. The relevant email correspondence between the applicant and his solicitor was before the Court. The first relevant email was from the applicant to his lawyer. It was undated but appears to have been after the applicant had filed a notice of discontinuance, that is, after 9 October 2015. The applicant stated (uncorrected):

   I just had a long conversation with Mary. She said, money is paid and its NOT refundable weather the case is go ahead or not. She said that now its court money.

   Now I received a invoice of $3800, even the case is withdrawn. David advised me, it will cost of total of around $5000 for FCC. It seems, even though, the case is withdrawn, it looks, I saved not even $1000. If I would have  known that court will still charge me $3800, I would have take a chance to go ahead with my case at FCC as it looks to add another estimate of $1000 what I had paid for nothing.

   It says, after I sign that paper, it will go to immigration and immigration will let me know how to pay $3800. Is this what my understanding is? Can anyone clear me with this information? Can I pay by installment but there is NO WAY I can effort to pay at once.

   FYI, in future, if there is any cost involvement in my case, I strongly want to know the information in advance throu

4. The applicant’s lawyer replied by email on 15 October 2015 in the following terms (without alteration):

   pLease stop blaming us . You knew there would be a cost but chose to proceed Given your constant complaints I really do think you should find another lawyer to act to you on the Ministerial appeal

5. The applicant replied to that email on either 15 or 16 October 2015 as follows (without alteration):

   Trust me David, I am not blaming anyone nor complaining. If I would have to blame and not trust you, I know what I have to do from my end. I know the right and I know what is wrong and right.

   You and me have a long conversation through email and you asked me to wait till I hear from you, then I receive a mail blaming me not responding to your email dated June. Then after this, I forwarded my email correspondence with you and again you asked me to wait. Then again I received a mail from Michael stating me that I did not listen to your advice. I do listen to you, always. If I would not have listen to you, WHY DO YOU THINK I AM STILL WAITING FOR YOUR ADVICE ON DOING WHAT EVER YOU ASKED ME TO??????????? Actually it is other way around. You must have to admit, “I FIND HUGE LACK TO COMMUNICATION GAP between you and your many staff/PA’s”.

   Anyway, in simple thinking, don’t I even have my right to ask or say what I feel? Don’t I have my right to ask in advance if there is any cost involvement? Don’t have my right to ask what I feel to ask to my lawyer? Isn’t it I am paying for that?

   To be honest with myself David, is it ethical for you to say to search for another lawyer for ministerial appeal in this last moment? It is not that I cannot but after crossing this much journey with you by believing you, do you want me to regret my believe and choice? Please don’t let me and please do necessary arrangement for ministerial appeal.

   As I said before, I trust you, I mean that and I never have any thought or intention to blame nor complain anyone. I am just putting my thought which I believe, it is my right to ask or say what I feel. That’s why you are there for.

   Thank you and please do let me know.

6. The applicant’s lawyer replied early on 16 October 2015:

   OK

   The reason I suggested you find another lawyer is because one of the legal ethics is that a lawyer can not continue to act for a client who has expressed no confidence in the advice given or work done by the lawyer

   Given your comments above I am happy to continue to act for you

7. The applicant then replied “Thank you sir. Awaiting your instructions”.

8. There is no evidence of any earlier advice given by the applicant’s lawyer to the applicant in connection with his proceedings in this Court. There is nothing to suggest that the lawyer threatened the applicant with anything to force him to file a notice of discontinuance. The most likely scenario is that, the applicant was advised by his lawyer that he stood a better chance of success in seeking the exercise by the Minister of his power under s.351 of the Act, than he did in this Court. The applicant accepted that advice. His only real complaint was that he had wasted money on the application to the Court.

9. In those circumstances, I consider that the applicant deliberately chose to pursue an alternative course, and to discontinue proceedings which have been brought within time in this Court. When the alternative course turned out to be unsuccessful, the applicant then chose to return to this Court to seek judicial review. I do not accept the fact, that the applicant was legally advised during this process presents any form of acceptable excuse for the delay in pursuing judicial review.

Grounds of Application

First, Second and Third Grounds

1. Next it is necessary to consider the merits of the grounds raised by the applicant.  The first three grounds may be put together.  They are (without alteration):

   1.The tribunal acted unreasonably in refusing to grant time to provide further evidence.  Telling the truth, I never knew the fact that someone did heinous crime towards me till my son comes back and I asked for more time to investigate because I never do such stupid things, they never provide.

   2.The person who submit the IELTS test result in greed (greed is very dangerous, if someone greed to others, they will do anything but, when they realise, it would be too late) dated 21 July 2012, I never saw that test result. The first time I saw was with the member of the tribunal. I asked for a copy to investigate from my end, member refused to provide a copy. I tried to obtain that copy of IELTS test result from Immigration as well but I was not provided opportunity to get that.

   3.Tribunal even further did not allow me more time to submit evidence or to investigate from my end as I have a doubt regarding this issue, that I did not produced the IELTS test result dated 21 July 2012, I found this very unreasonable. MIC v Li (2013) HCA 18.

2. These grounds are, in essence, an assertion that the Tribunal acted unreasonably by refusing to allow the applicant further time to obtain evidence to establish that the applicant did not provide the IELTS report which the Tribunal found to be bogus. It is important to understand that the applicant does not contest the finding that the document was bogus. The context of the argument is that, in order to be granted the visa, public interest criterion 4020 in sch.4 to the Regulations had to be satisfied. That criterion stated:

   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 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.

3. That criterion may be satisfied where there is no evidence that the applicant gave, or caused to be given, a bogus document to the Minister or the Tribunal.

4. Further, the requirement in cl.4020(1) of the Regulations may be waived under cl.4020(4) if the Minister is satisfied that “compelling circumstances that affect the interests of Australia” or “compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen” justifying the granting of the visa.

5. It will be recalled, that the relevant IELTS test report was provided to the Department after the original IELTS test report provided by the applicant, was accepted by the applicant not to show a sufficient test result.  It was shortly after provision of that report on 5 March 2014, that the applicant was informed that the test report might be bogus because the results in it did not match the online verification system.  The applicant’s response to this was that:

   ·he had not submitted the IELTS results himself;

   ·he had been told by the relevant examiner that he had achieved a 6.0 in each band; and

   ·he would never do anything so stupid as to submit a false document.

   After receiving that response, an officer of the Department seems to have checked with the examiner. 

6. On 19 June 2014, an officer wrote to the applicant stating:

   …

   On 10 April 2014 the Department provided a copy of the IELTS Test Report Form, including the cover letter purporting to be from Navitas, provided for this application to Navitas for verification.  Navitas confirmed on 10 April 2014 that the cover letter was not issued by their Test Centre nor did the results on the Test Report Form provided by you match the results held by Navitas.

   …

7. The applicant can be taken to have been on notice by the time he received the 19 June 2014 letter, at the very latest, that neither the IELTS test report form nor the covering letter were genuine documents.  If it had not been clear to the applicant by that stage, then when he received the reasons for the delegate’s decision dated 16 October 2014, it must have been pellucid to him as those matters were the basis for the delegate’s decision.  It will be recalled that the applicant was represented by migration agents for the purpose of his application.

8. The matter became even clearer at the hearing held by the Tribunal on 16 March 2015, some five months later.  At the hearing, as I have already observed, the information concerning the IELTS test report and the covering letter were raised with the applicant by the Tribunal.  What then occurred at the hearing was described by the Tribunal in its stated reasons as follows:

   16.The representative requested a brief adjournment to speak with the applicant.  Following the adjournment, the applicant said that he had never seen the letter or IELTS test result and did not send them to Immigration. He said that nobody would do such a stupid thing, knowing that the results could be verified, and that it did not make sense to do this. The applicant requested a copy of the original documents sent to Immigration and wanted some time to investigate. He said he wanted a writing specialist to check the documents to see what had been done to them and who had done this. The Tribunal did not agree to allow further time for these investigations in the circumstances. It is highly unlikely that a writing specialist would be able to identify who typed the letter and/or changed the results on the IELTS test report form that was submitted to the Department.  Neither is when the letter was written and the IELTS test report form altered directly relevant to the issue of whether there is evidence before the Tribunal that the applicant gave, or caused to be given, a bogus document or information that is false or misleading in a material particular. The applicant later suggested during the hearing that somebody was trying to sabotage his application.

   17.The Tribunal also did not agree to allow further time to sit additional IELTS tests. This is in part because the applicant had recently undertaken two IELTS tests since making the application for review in October 2014. He informed the Tribunal at the hearing that he had sat two additional IELTS tests since that time, and that he had achieved 7.0 in at least three of the components, but in one test achieved 5.5 in reading and the other 5.5 in writing. The Tribunal did not consider that it was appropriate to allow further time to undertake more English language testing, noting that he had recently undertaken at least two tests. It has significant doubts that he has been achieving the scores claimed, noting that he has never provided any evidence of having achieved 7.0 in all but one component. It further notes that when he responded to an invitation to comment from the Department on a previous IELTS test result in October 2011, he had stated that he only has a “problem in reading (5.5), rest all are 7.5”. However, in relation to the IELTS test in question at that point in time, the results were Listening 6.0, Reading 5.0, Writing 6.0 and Speaking 7.5.

1. After the hearing, the applicant was given time to submit further information.  By letter dated 25 March 2015, the applicant’s migration agents made submissions to the Tribunal concerning the applicant’s character, submitting that that represented a compelling ground.  This clearly addressed the possibility that the Tribunal might waive the criterion 4020(1) pursuant to criterion 4020(4).  The agent also submitted that the Tribunal could not find that there was any fraudulent intent apparent in the case referring to the decision of Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169; [2014] FCAFC 42.

2. The applicant’s claims in these first three grounds were that the Tribunal acted unreasonably in failing to allow him further time to make investigations into who provided the bogus documents to the Tribunal.  It may be accepted that the Tribunal will fall into jurisdictional error if it unreasonably fails to exercise a power to adjourn the review; or the exercise of that discretion was arbitrary, capricious, without common-sense or plainly unjust or, put differently, could be said to lack an evident and intelligible justification:  Minister for Immigration & Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18.

3. The applicant now relies upon the fact that he knows who falsely lodged the documents, because somebody has confessed to having done that.  The applicant says that he did not know that at the time and should have been given time to find out.  The difficulty with the applicant’s argument is, that the only investigation that the applicant said that he wanted to make, was to obtain the opinion of a writing specialist to check the documents to see what had been done to them and who had done it.  In my view, the Tribunal’s response to this was reasonably open to it.  It is logical to infer that a writing specialist would not be able to identify the person who had typed the letter and who had changed the results of the IELTS test report form submitted to the Tribunal.  In light of that, it was open to the Tribunal for the reasons that it gave, to refuse to allow an adjournment simply to obtain such an opinion.  It would have been futile to do so.

4. Although the applicant does not take issue with the Tribunal’s refusal to adjourn to allow him to sit further IELTS tests, I consider that there was nothing unreasonable about that either.  Underlying the Tribunal’s reasons for refusing an adjournment for that purpose, was the fact that there was nothing to show that the applicant might succeed in any further IELTS test.  The applicant had undertaken a number of tests previously and always had difficulty obtaining the necessary score in at least the reading element of the test.  The fact that that had occurred over a period of at least three years, provides a logical basis for the Tribunal’s conclusion.

5. For those reasons, the first three grounds have little prospect of success.

Fourth and Fifth Grounds

1. The fourth and fifth grounds of the application are (without alteration):

   4.When the person, who did this to me, put me under unnecessary life and death situation for me and for my family, later realized his crime and confessed in writing and agreed to confess more in anyway it required, no one saw this unjust to me.

   5.When it came to my attention regarding this matter when my PR 886 visa refused (before that I did not know anything), I did my IELTS by my own and even proved further that I do not need to seek help with wrong doing, I am capable of doing my own but no one looks onto this as well.

2. These paragraphs do not really add anything to the first three grounds in the application. Although not a matter raised by the applicant, I have considered the possibility that the Tribunal’s decision may have been affected by fraud in the sense discussed by the High Court in SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35.

3. The fraud as alleged by the applicant, seems to me so implausible that the prospects of establishing such a serious allegation are minimal.  It must be recalled, that the applicant was aware at all times, that in order to be granted the visa he had to establish that he had competent English.  This in turn required him to undertake an IELTS exam and have level 6.0 in each of the relevant bands, and then to submit proof of that result to the Tribunal. 

4. The first IELTS test report submitted by the applicant did not, properly understood, show that the applicant had achieved the necessary result.  For that reason, it is highly unlikely that the applicant was unaware of, and had nothing to do with, the provision of the suspect IELTS test report to the Department.  Put simply, this was a document that was essential to the applicant’s success.  It seems implausible to me, that the applicant would simply allow somebody else to provide the document without him having seen it.  Further, the applicant’s allegation is that somebody who had no connection whatsoever to the examiner (Navitas), undertook such a significant and elaborate fraud out of greed.  The applicant explained at the hearing that this greed was more like jealously in that, this person was not as successful as the applicant.  That seems like a rather slender motivation and even if I were to accept, as the applicant alleged, that the perpetrator had admitted to the fraud, I would not accept the admission on its face without something more.

5. The remaining paragraphs in the application do not add anything to the grounds as considered.

6. For those reasons, on a high level consideration of the grounds raised by the applicant, I do not see that they have sufficient merit to warrant an order extending the period within which an application for review may be made.  This is particularly so, in light of the significant delay and the lack of any reasonable excuse for that delay.  Even though there is no prejudice that might occur to the Minister by an order extending the period, I do not see that, or any other matter raised by the applicant, outweighs the lack of sufficient merit and the unexplained delay.

Conclusion

1. For those reasons, I am not satisfied that it is necessary in the interests of the administration of justice to make an order extending the period under s.477(1) of the Act and so, refuse to make an order under s.477(2) of the Act.

2. The application must otherwise be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       29 September 2017