Naveed v Minister for Immigration
[2018] FCCA 2811
•27 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NAVEED v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2811 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a student visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), s.5 Migration Regulations 1994 (Cth) |
| Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Gill v Minister for Immigration (2016) 248 FCR 398; [2016] FCAFC 142 Maharjan v Minister for Immigration [2017] FCAFC 213 Minister for Immigration v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17 Trivedi v Minister for Immigration (2014) 220 FCR 169; [2014] FCAFC 42 Singh v Minister for Immigration (2016) 247 FCR 554; [2010] FCAFC 141 SZFDE v Minister for Immigration (2007) 232 CLR 189; [2007] HCA 35 |
| Applicant: | TAHIR NAVEED |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3505 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 27 September 2018 |
| Delivered at: | Sydney |
| Delivered on: | 27 September 2018 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr J Pinder of Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3505 of 2017
| TAHIR NAVEED |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant, Mr Naveed, seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 19 October 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Naveed a temporary student visa.
Background facts relating to Mr Naveed’s visa application and the decision of the Tribunal on it are set out in the Minister’s outline of submissions filed on 20 September 2018.
On 29 June 2016, Mr Naveed lodged an application for a student visa.[1] On the same date or shortly thereafter he lodged a “notification of incorrect answer(s)” to state that he mistakenly marked his relationship status as “de facto” when it was not.[2]
[1] CB1–18
[2] CB19
On 11 July 2016, the Minister's Department (Department) wrote to Mr Naveed to request more information about his satisfaction of the genuine temporary entrant criterion.[3]
[3] CB23–31
On 1 August 2016, Mr Naveed responded to the Department's request and provided information,[4] including, relevantly, a letter from the Bank of Punjab dated 11 July 2016 stipulating that the bank had extended a line of credit to Mr Naveed (the bank letter).[5]
[4] CB32–45
[5] CB40
On 27 September 2016, the Department wrote to Mr Naveed to invite him to comment on information, being that it had conducted an investigation into the bank letter and that the Bank of Punjab had confirmed that the bank letter was fake and was not issued by the Bank of Punjab. The Department also invited Mr Naveed to comment on his satisfaction of Public Interest Criterion 4020 (PIC4020).[6]
[6] CB47–51
On 20 October 2016, Mr Naveed responded via his migration agent.[7] Mr Naveed’s response was that he would not be providing additional information. However, Mr Naveed effectively blamed his friend, whom Mr Naveed commissioned to enlist a person who used to make bank letters. The exact explanation, as quoted by the migration agent, was (reproduced as written) (the initial explanation):[8]
for bank letter I gave money to my friend to organise it as he knew someone in Pakistan who used to make these letters, my friend also applied his extension and gave the same letter to department and got the extension, as per my knowledge and believe he (the bank letter organiser) didn't deposit any thing in the account and just gave me his self printed letter. so it will be difficult for me to obtain any document regarding that.
[7] CB56–59
[8] CB 56
On 15 November 2016 the delegate refused to grant Mr Naveed a student visa.[9] The delegate found that Mr Naveed had provided a bogus document in the form of the bank letter. Mr Naveed's explanation was that he relied on his friend to prepare a fraudulent document. This was not a simple mistake; rather, Mr Naveed wilfully provided a false and fraudulent document to the Department. As such, Mr Naveed did not meet paragraph 1(a) of PIC4020, and as such did not meet paragraph (a) of clause 573.224 of Schedule 2 of the Migration Regulations 1994 (Cth) (Regulations). As such he did not meet the criteria for the grant of a visa under subclass 573, nor did he satisfy the criteria for the other subclasses of a student visa.
[9] CB60–69; especially CB64–69
On 4 December 2016 Mr Naveed sought review of the delegate's decision before the Tribunal.[10] Mr Naveed attached a copy of the delegate's decision to his Tribunal application.
[10] CB70–71
On 27 March 2017 the Tribunal invited Mr Naveed to a hearing on 23 May 2017.[11] This was subsequently postponed to 1 August 2017 at Mr Naveed’s request.[12]
[11] CB82–92
[12] CB93–108
On 30 July 2017 Mr Naveed, through his migration agent, made a written submission to the Tribunal (the Tribunal submission),[13] in which he explained that he obtained the contact details of a third person (the broker) from his friend. The broker advised Mr Naveed to take out a loan from a private financier, and that the broker would broker the loan with the financier. The financier would then deposit money into a bank account and the bank would issue a loan against the deposited money. Mr Naveed agreed to this arrangement and received the bank letter which he then submitted to the Department. Mr Naveed submitted that he was the victim of fraud perpetrated by the broker.
[13] CB109–114
On 1 August 2017, Mr Naveed attended a hearing before the Tribunal. Mr Naveed’s migration agent also attended.[14]
[14] CB120–123
On 20 October 2017, the Tribunal made its decision, affirming the delegate's decision.[15]
[15] CB120–137; especially CB130–137
Tribunal decision
The Tribunal was satisfied that the bank letter was a bogus document within the meaning of s.5(1) of the Migration Act 1958 (Cth), as it was a counterfeit document or that it was a document that had been altered by a person who did not have authority to do so.[16]
[16] CB133 at [17]
While noting the content of the Tribunal submission, the Tribunal found that in preparing the document there was fraudulent intention on the part of the broker.[17]
[17] CB133–134 at [18]
The Tribunal therefore found that Mr Naveed did not satisfy PIC4020(1).[18]
[18] CB134 at [19]
The Tribunal noted that the requirements of PIC4020(1) and (2) can be waived if there are compelling circumstances that affect the interests of Australia, or where there are compassionate and compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.[19]
[19] CB134 at [20]
The Tribunal found that there were no such circumstances, noting that the only circumstances raised by Mr Naveed related to himself personally.[20]
[20] CB135 at [25]–[26]
The Tribunal therefore concluded that PIC4020(1) and (2) should not be waived.[21]
[21] CB135 at [27]
Consequently, the Tribunal concluded that Mr Naveed did not satisfy the criteria for the grant of a student visa.
The present proceedings
These proceedings with a show cause application filed on 15 November 2017. Mr Naveed continues to rely upon that application. The grounds in it are:
1.The AAT required assessing the case as a whole. The AAT and DIBP were informed by me immediately of known the issues. After known of fraudulent documents, I informed immediately to DIBP officer about the fraudulent documents. As such, the provided documents must be omitted from my file and I would have given further time to submit the further evidence of finance documents. PIC4020 only applies if I would have claimed the genuine of the document after case officer's notification to me. Other than bank loan letter, I was able to provide other financial evidences against my student visa application. DIBP and AAT would have given me an opportunity to submit new documents. As natural justice, when I came to know the documents was fraudulent, I immediately advised DIBP where the case officer did not provided natural justice to submit new financial requirements after my notification.
2.The tribunal failed to assess the genuines of my claim being victim of fraud by other person and honesty with Australian Authorities.
3.Under natural justice, I was not given opportunity to submit alternate financial documents after my notification of being victim of third party.
4.Procedural fairness was not implied.
(errors in original)
The application is supported by a short affidavit filed with it, which I received.
I also have before me as evidence the court book filed on 13 February 2018.
Only the Minister filed written submissions in advance of today’s show cause hearing. I invited oral submissions today from Mr Naveed. He proved to be an articulate advocate in his own cause and addressed me in English, only occasionally calling on the assistance of the Urdu interpreter who had been booked for the hearing.
Mr Naveed has a number of concerns. Importantly, his view is that he was an innocent party in the preparation of the document which the Tribunal correctly found to be a bogus document. Mr Naveed further contends that there was no need for him to engage in the fabrication of a financial record because, notwithstanding some difficulty surrounding the death of his mother, arrangements had been made for a private loan to provide security for a further bank loan. Mr Naveed handed up a document dated 18 October 2016 from the Habib Bank which he says corroborates that proposition. I marked the document for identification.[22]
[22] MFI A1
Mr Naveed accepts that the document was not available to the Tribunal, but the proposition which the document is said to corroborate was put to the Tribunal. Mr Naveed says that he has other documents that he would like to obtain in order to establish the truth of his propositions. He sought an adjournment of these proceedings, which I refused, on the basis that the document marked for identification and other documents that might yet be obtained were not available to the Tribunal and could not have impacted upon its decision.
Mr Naveed then submitted that there was an issue of procedural unfairness in this case. He told me that, towards the end of the hearing before the Tribunal, he requested time to obtain further documents to explain his circumstances and his request was refused by the Tribunal. I considered whether Mr Naveed should be given time to produce a transcript of the Tribunal hearing to see if his assertion could be verified. There is, as the matter stands, no such evidence before the Court and Mr Naveed has had an opportunity in procedural orders made by a registrar to produce a transcript.
Following argument, I accepted the solicitor for the Minister’s submission that there would be no utility in further delay. There was no doubt that the document submitted in support of the visa application was bogus, whether or not Mr Naveed had any knowledge of that before it was revealed.
Further, the resulting question for the Tribunal was whether the requirements of PIC4020(1) or (2) should be waived, which depended upon whether there were any circumstances which were compelling that affected the interests of Australia, ie the public interest, or whether there were any compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible new Zealand citizen.
The only matters Mr Naveed was able to put before the Tribunal, and which he sought to agitate further before me, were matters concerning himself. Accordingly, such other information as Mr Naveed may have been able to put before the Tribunal would not have borne on the question that the Tribunal was required to address. In those circumstances, I declined to provide a further opportunity for Mr Naveed to introduce evidence in support of this application.
In other respects, I agree with the Minister’s submissions on the grounds of review advanced.
Ground 1
The first ground rests on a counter-factual assertion, being that Mr Naveed notified the Department that the bank letter was a bogus document. The Department's file makes it clear that this is not what occurred. Rather, it was the Department which detected that the bank letter was a bogus document and informed Mr Naveed.[23]
[23] CB48–51
It follows that this ground could not succeed because it is falsely premised.
As to the allegation about natural justice, the Department afforded Mr Naveed natural justice by writing to him and inviting his comment about the bogus document.[24] The Tribunal also provided Mr Naveed with an opportunity to address the dispositive issue in written submissions[25] and orally at a hearing.[26] Mr Naveed did provide written submissions (the Tribunal submission[27]) and also made oral submissions at the hearing.[28] Both the delegate and the Tribunal considered Mr Naveed’s responses to them. Neither the Department nor the Tribunal were obliged by procedural fairness to provide Mr Naveed with an opportunity to provide documents that were not bogus in place of the document that was.
[24] CB48–51
[25] CB74; CB79; CB85
[26] CB120–122
[27] CB109–114
[28] CB132 at [8]–[9]
Grounds 2 and 3
The second and third grounds, together, appear to raise an allegation of fraud on behalf of the broker.
Mr Naveed does not dispute on judicial review (nor did he dispute before the Tribunal) that the bank letter was a bogus document, or that it was prepared with fraudulent intent by the broker.
The Tribunal was correct to conclude that the fraudulent intention of the broker was sufficient for Mr Naveed not to satisfy PIC4020(1).[29]
[29] Trivedi v Minister for Immigration (2014) 220 FCR 169; [2014] FCAFC 42
However, in Maharjan v Minister for Immigration,[30] the Full Federal Court, in seeking to reconcile Trivedi with Gill v Minister for Immigration[31] and Singh v Minister for Immigration,[32] emphasised that, while Trivedi is still good law with respect to the operation of PIC4020 (see Maharjan at [75]–[77] per Gilmour and Mortimer JJ), it is still possible for an applicant to establish that the Tribunal's decision is vitiated by the fraud of a third party as long as the applicant was not complicit in or indifferent to the fraud.[33]
[30] [2017] FCAFC 213
[31] (2016) 248 FCR 398; [2016] FCAFC 142
[32] (2016) 247 FCR 554; [2010] FCAFC 141
[33] see Maharjan at [78]–[85] per Gilmour and Mortimer JJ
Furthermore, the applicant must not only be the innocent victim of such a fraud, but the applicant must be able to show “that third party fraud stultified a process or processes under the [Act]”.[34]
[34] Maharjan at [78] per Gilmour and Mortimer JJ; see also SZFDE v Minister for Immigration (2007) 232 CLR 189; [2007] HCA 35
As the issue of fraud goes to a jurisdictional fact, it is a matter for the Court to determine on the basis of the evidence before it.
The Full Federal Court in Maharjan also emphasised that, as with any fraud on the Tribunal, the applicant bears the onus of proof.[35] Further, that onus is a heavy one, insofar as the applicant must satisfy the Court to the level of satisfaction required by Briginshaw v Briginshaw,[36] noting that a finding of fraud is a “serious matter”.[37]
[35] see Maharhan at [78] per Gilmour and Mortimer JJ; cf. SZFDE
[36] (1938) 60 CLR 336; [1938] HCA 34 at 363 and 368 per Dixon J; Minister for Immigration v SZLIX (2008) 245 ALR 501; [2008] FCAFC 17 at [33] per Tamberlin, Finn and Dowsett JJ
[37] SZFDE at [38] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ
Mr Naveed would therefore need to prove, by way of evidence, not only that there was fraud by the broker, and that the fraud was a fraud on the Tribunal, but also that he was not complicit in or indifferent to that fraud.
Mr Naveed has not put any such evidence before the Court, despite having been given an opportunity to do so. Therefore, there is insufficient evidence before the Court upon which it could find that the Tribunal's decision is vitiated by the fraud of the broker, or that Mr Naveed was not complicit in or indifferent to the fraud.
Indeed, one patent difficulty for Mr Naveed is that the initial explanation to the Department suggests that Mr Naveed was complicit in the manufacture of the bogus document, in that he asked his friend to put him in touch with someone he knew who used to “make these letters”, and that, to the best of his knowledge, the broker “didn't deposit [anything] in the account and just gave [the applicant] his self printed letter”,[38] which suggests that he knew that the bank letter was not prepared by the bank and that there was no actual loan.
[38] CB56
It is only in the Tribunal submission that Mr Naveed substantially revised his story to involve fraud.[39]
[39] CB109–114
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, therefore, order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied at the time the application was filed. Mr Naveed requested a reduced costs assessment, but the scale amount reflects what reasonable costs and disbursements have been incurred to this point.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 14 December 2018
CORRECTION
The matter number on the cover sheet and first page of the reasons has been corrected.
0
6
4