Palikhe v Minister for Immigration - [2016] FCCA 1639

FEDERAL CIRCUIT COURT OF AUSTRALIA

PALIKHE v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1639

Catchwords:
MIGRATION – Application for adjournment – matter listed for over 12 months – adjournment refused – consideration of substantive grounds of application – error not shown – application dismissed.

Cases cited:
SZGJO v Minister [2006] FCA 393
Mudiyanselage v Minister for Immigration & Citizenship [2012] FMCA 887

Applicant:

RAKISH PALIKHE

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

MLG 2216 of 2014

Judgment of:

Judge Burchardt

Hearing date:

25 May 2016

Date of Last Submission:

25 May 2016

Delivered at:

Melbourne

Delivered on:

14 July 2016

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondents:

Mr Brown

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The application filed 5 November 2014 be dismissed.
The Applicant shall pay the First Respondent’s costs.
The name of the Second Respondent be amended to ‘Administrative Appeals Tribunal’.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2216 of 2014

RAKISH PALIKHE

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an application filed 5 November 2014, the Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (then the Migration Review Tribunal) dated 1 October 2014. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Skilled (Provisional) (Class VC) visa. There were three grounds of application, all relating to the way in which the Tribunal dealt with Public Interest Criterion (PIC) 4020. It should be noted that the application and supporting affidavit were filed by lawyers well experienced in the migration law field.
For the reasons that follow, I do not agree that the Tribunal fell into jurisdictional error as alleged in the application and it follows that the application will be dismissed. I should first, however, deal with the question of the adjournment application pressed by the Applicant at the hearing. I refused the application for adjournment and said I would give reasons in my judgment and what follows are those reasons.

The Application for Adjournment

In order to put the matter in context, it is appropriate to note that on 3 February 2015 Registrar Allaway made procedural orders by consent, inter alia, setting the matter down for trial on 25 May 2016. As earlier noted, the Applicant was represented by his lawyers at that time. His lawyers remained on the record until they filed a Notice of Intention to Withdraw as Lawyer on 11 April 2016. On 16 May 2016 the Registry of the Court received a letter ostensibly dated 12 April 2016 and ostensibly from the Applicant in the following terms:
“My lawyer has sent me a notice to withdraw her representation.
I request time to find a legal representative to attend to the hearing.
I request to postpone the hearing on 25 May 2016.”
This letter was forwarded to the solicitors for the First Respondent who opposed the adjournment application. The email opposing the application relevantly stated:
“The Minister opposes the adjournment application. The Applicant’s solicitor gave notice of an intention to withdraw as the Applicant’s lawyer on 8 April 2016, almost six weeks ago. The application has been on foot for more than 18 months. The Applicant has had enough time to prepare his argument and the matter should proceed as listed.”
On 17 May 2016 my associate wrote to the parties indicating that the request for adjournment was refused and the matter remained listed and that “any further application should be made in Court on the abovementioned date”.
The Applicant filed an Application in a Case and Affidavit on 23 May 2016 seeking an extension of time in which to appoint new lawyers. The text of his affidavit relevantly reads:
“I need some time to prepare and organise my stuffs as my representer have withdrawn the case. As my case has some complexation and (illegible) to represent by myself the whole matter. I know it has been short notice but it was not my mistake as my previous representer withdrew my case when I was not even in the country which made me helpless. I promise you that I don’t need long time but at least some time to go through all my case again from start and appoint a new lawyer for my case.”
The Applicant appended to his affidavit e-ticket itinerary receipts for travel suggesting that he had departed Australia for Nepal on 6 April 2016, returning from Kathmandu on 4 May 2016 and arriving on 5 May 2016.
When asked by the Court how it was, given that he was away from 5 April to 17 May as he said, that he had written the letter dated 12 April 2016 to which I have already referred. He confirmed that the letter of 12 April 2016 had been written on his behalf by a friend, but that he knew what it said and it said what he wanted said.
The Applicant said the case had been going for a while with the solicitor preparing all documents. He had no explanation as to why no materials had been filed between February 2015 and April 2016. He said it was a big dilemma what was going on, that he had visited an immigration lawyer the previous Monday who had told him to ask for more time. He said he found out about this matter when he returned to Australia, but that, of course, is obviously inconsistent with his causing the friend to write to the court in the first place.
The Minister opposed the adjournment on the grounds already indicated.
In the circumstances, it seemed very questionable, to say the least, that the Applicant was unaware that his lawyers were likely to withdraw from the record. He caused a letter to be prepared on 12 April 2016 in which he relevantly asserted, “[m]y lawyer has sent me a notice to withdraw her representation.” It is far more probable than otherwise that the Applicant had been put on notice that his lawyers were withdrawing before he went to Nepal or, in some fashion, while he was in Nepal and he acted on that intimation. He was sufficiently aware of his circumstances to apply for an adjournment, but apparently took no steps otherwise to forward his position. He has provided no evidence as to why he may not have returned to Australia even if events were as he says they were. Furthermore, as counsel for the First Respondent correctly submitted, the Applicant had had a very substantial period of time in which to prepare his case in any event before his lawyers withdrew and still had quite some weeks after they had withdrawn to do so. He elected, in effect, to stay in Nepal and not to prepare.
Even if, contrary to my conclusions as to the facts, the Applicant first became aware of his lack of representation upon return on 17 May 2016, he still had nine days in which to address the matter. I appreciate that the Applicant is not a lawyer and that the legal system in this country might well be confronting to him. Nonetheless, he is fluent in English, as I know from his address to the Court, and has been living in this country since 2007.
The Court’s listings are very heavy at the present time (the Melbourne Registry is still short of full complement) and any adjournment would not have been for a short period of time. This is also a relevant consideration.
In all the circumstances, I felt that the Applicant had had a sufficient and fair opportunity to prepare his case and that it was proper for the matter to proceed, especially since he had filed materials prepared by a firm experienced in the field which, in a sense, were capable of standing and speaking for themselves. Accordingly, I did not adjourn the matter.
I did, however, give the Applicant 14 days to file any further submissions in case there were matters he would seek to elaborate or add to the materials filed on his behalf and caused him to be given a copy of the court book, although a copy had previously been served upon his solicitors.
When the case proceeded as to the substantive merits, the Applicant said that the case has been a big mess. He is objecting about fraud. He has been working genuinely and has a new Trades Recognition Australia (“TRA”) skills assessment as well. He was successful. He was misled by his agent and the matter has been going on since 2009. He has been working in this industry for the last seven years and has a lot of experience. It would turn his life upside down. It was a small matter and has dragged on so long.

The Submissions of the First Respondent

Counsel for the First Respondent noted the terms of the application at CB 1 - 11 and noted the appointment of an agent at CB 4. The Applicant was applying for a Skilled Graduate (Subclass 485) visa and his TRA skills assessment is at CB 8. TRA nominates the occupation of cook, a data skills assessment of 1 April 2009 and a reference number from TRA. At CB 39 to 40 there is an email from the Applicant’s agent to the First Respondent. I note that at para.3 of that email the agent asserted, CB 40:
“A submission was made to TRA on 19 March 2010 giving reasons why the experience in L’Aspromonte should not be termed as non-genuine. (A copy of the submission is enclosed for your reference).”
That submission is at CB 43 - 45. It essentially asserts that the Applicant had, indeed, worked at L’Aspromonte restaurant from 25 March 2008 until 15 March 2009 in the position of cook on a voluntary basis and asserted that the employer was refusing to confirm that work, in effect, out of spite.
At CB 503 it is clear that the Applicant told the Tribunal that he in fact had never worked at the L’Aspromonte restaurant and that he said he was unaware of what the agent had done. Against this background, counsel came to deal with each ground of application in turn.

Ground 1

“The Tribunal applied the wrong legal test in that it had applied PIC 4020.

Particulars

PIC4020 has no effect for the purpose of the Applicant’s visa application because:

a.PIC4020 was introduced after the Applicant had applied for the relevant visa;
b.PIC4020 would, therefore, take “effect” before the date it was registered;
c.the operation of PIC4020 would affect the rights of the applicant so as to disadvantage him; and, therefore
d.By section 12(2)(a) of the Legislative Instruments Act 2003 (Cth) has no effect”

Counsel submitted that PIC 4020 applied to any application not determined prior to 29 April 2011. The Applicant’s application was, of course, filed (or created) on 24 August 2009, but the application was not refused by the delegate until 22 August 2012. The transitional arrangements clearly apply as asserted and it is clear that the Minister’s submission is correct. Accordingly, the matters set out in ground 1 are incapable of being made out.

Ground 2

“Alternatively, if PIC applied to the Applicant’s visa application, the Tribunal erred by finding that the Applicant had given or caused to be given a bogus or false or misleading document to the Trades Recognition Authority (“the TRA”) or the Minister in relation to the visa:

Particulars

a.The document that was purportedly found to be bogus or false or misleading in a material particular in relation to the application for the visa did not have that character because it was not “in relation to” the application for the visa, and was not “relevant to” any of the criteria the Minister was able to consider when making a decision about the visa application.
b.This is because:
i.TRA lacked power to make the skills assessment as at the date of the relevant assessment because it had not been relevantly specified under reg.2.26B of the Migration Regulations 1994 (Cth) (“the Regulations”); and
ii.as the TRA was not the “relevant assessing authority” at the relevant time, any document submitted to TRA was not, and could not, be “in relation to” the application for the visa and could not be “relevant to” the criteria that the Minister was able to consider when making the decision.”

Counsel for the First Respondent submitted that the Applicant had, through his agent, asserted that he had worked at L’Aspromonte to a delegate of the First Respondent and had admitted that he had never worked at L’Aspromonte to the Tribunal. Counsel submitted that this necessarily led to the conclusion that the Applicant had provided a bogus document when his agent asserted that he had worked at L’Aspromonte and that the validity of the TRA assessment was in every respect, therefore, irrelevant.
Although this regrettably puts the matter rather shortly and has the appearance of merely repeating the submissions of the Minister, the fact is that the submission is plainly correct. The bogus document was plainly also false and misleading in a material particular given to the First Respondent in relation to the application for a visa. It was submitted by the agent, as part of the materials put forward, to support the application. Whether TRA had proper power to make the skills assessment and/or was not the relevant assessing authority at the relevant time, it was clearly a bogus and false document submitted by the Applicant in relation to his application.

Ground 3

“Alternatively, if PIC4020 applied to the Applicant’s visa application, the Tribunal applied the wrong test, or inflexibly applied policy, or ignored a mandatory consideration, in considering whether to waive the requirements of PIC4020 because there were compelling circumstances that affect the interest of Australia:

Particulars

a.The Tribunal applied the meaning of compelling circumstances in the Policy Advice Manual (“the PAM”) rather than the test required by PIC 4020(4)(a).
b.The statutory test is broader than that set out in the PAM.
c.The Tribunal closed its mind to the broader application of the statutory test.
d.The Tribunal failed to consider the fact that the Applicant was an “innocent party” in the submission of any false information, in circumstances where he was at all relevant times entitled to a positive TRA assessment and entitled to the visa but for the PIC 4020 finding. This fact clearly arose on the materials.”

Counsel submitted that the Tribunal’s reasons should be read fairly. PAM is for guidance only. The Applicant signed a blank form and left it with his agent, to put the matter at its highest on his behalf. Counsel referred to the decision of Bennett J in SZGJO v Minister [2006] FCA 393 in this regard.

The Tribunal’s Decision

The Tribunal traversed background matters at CB 493 - 496. The Tribunal noted at para.5 that the original application was lodged by a migration agent who had subsequently made submissions to the Department on the Applicant’s behalf. He appointed a new agent in about the middle of 2012 and at that time the application was still under consideration by the Department. When the application for review was made, he did not have an agent, but in June 2013 he appointed a further and still then extant agent.
The Tribunal noted that the Applicant entered Australia on 31 July 2007 holding a Class TU student visa. The Tribunal noted at para.7 (of the decision record of the Migration Review Tribunal at CB 493):
“In the application for the visa Mr Palikhe indicated that he had applied to a relevant skills authority for an assessment of his nominated occupation. He said that his nominated occupation was Cook, that TRA (Trades Recognition Australia) was the assessing authority, and that TRA made a skills assessment dated 1 April 2009 with the reference number TRA09/011238263.”
The Tribunal noted that in June 2010 a delegate of the Minister corresponded with the Applicant giving him an opportunity to respond to information that suggested he had given or caused to be given in relation to the visa application false or misleading information or a bogus document. It is clear from what the Tribunal wrote that this related to his alleged 900 hours work experience from L’Aspromonte restaurant. It noted that Carmine Amarante had pleaded guilty to the manufacture and sale of work references matching the ones submitted to TRA to obtain the first skills assessment referred to.
The decision next noted at para.10 CB 494, the agent’s letter at CB 43 - 45 to which reference has already been made and noted that the email:
“…said among other things that the first skills assessment was issued after TRA called “the employer L’Aspromonte” on the telephone and checked the details of the work reference which details the employer confirmed as genuine and true “at that time”.
The Tribunal noted the revocation of the first skills assessment and the issuing of a subsequent one and noted, again, that the March 2010 submission (erroneously dated 2009) had stated that Mr Palikhe informed the agent that he was working at L’Aspromonte from March 2008 to March 2009 as a voluntary cook and repeated the matters earlier referred to above about the employer’s reluctance to confirm the employment.
The Tribunal went on to recite the history of the matter and then dealt with matters asserted by the Applicant at the hearing. Relevantly, at para.22, CB 496, the Tribunal recorded:
“Mr Palikhe told the Tribunal about three places of employment that he had had in Australia. He said that L’Aspromonte restaurant was not one of them.”
At para.23 the Tribunal records the Applicant’s agreement that he knew that his first migration agent had filed an application for a subclass 485 visa and, indeed, had asked her to. At para.24 a response to how he had been the victim of fraud, the Applicant relevantly said:
“He gave the consultant his passport and the consultant applied to TRA. He went to the consultant to ask him to apply to TRA and gather required information. The consultant did that. Mr Palikhe said that the consultant made him sign a blank piece of paper. He didn’t know what that was. There was fraud on the part of the consultant and the first migration agent, he said”
He went on to say at para.25 that the submission made by the agent was without his knowledge.
It is not necessary to set out the rest of the matters recorded until one comes to the Tribunal’s consideration of claims and evidence (CB 499 - 503).
Having set out the terms of PIC 4020 at para.50, the Tribunal noted reference to bogus document as defined:
“The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.97 of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in s.97 to a document that is ‘false or misleading’ has no requirement that it be relevant to a criterion for the grant of the visa: Batra v MIAC [2013] FCA 274.”
The Tribunal referred to matters of what it described as important principles regarding the validity of visa applications, third-party fraud and the consequences thereof in paras.58 and following. In my opinion, they constitute a careful and considered review of relevant authority. It is not necessary to repeat it. Relevantly, at paras.66 - 68, CB 502, the Tribunal finds:
“The Tribunal does not accept that Mr Palikhe was a victim of fraud in the way that he claimed to have been. He knew in or about February 2010, if not before then, that TRA had been given a work reference for L’Aspromonte and that TRA had formed the view that that might not be genuine. He told the Tribunal that he had never worked for L’Aspromonte and that he did not authorise anyone to say that he had. Through the second migration agent he told the Department that he had not knowingly wanted to mislead it and asserted that he had “corrected” the information. But it does not appear that he ever said to the Department that the consultant was meant to apply for a skills assessment on the basis his work at the first place of employment. It was relatively recently that Mr Palikhe claimed to have been a victim of fraud. It may be that he did not see some important documents until after he made his application for review but his actions generally, not only his signing the blank skills assessment application, indicate that was indifferent to what especially the consultant and the first migration agent did for him. Despite what he told the Tribunal happened to him, Mr Palikhe has never reported the consultant or the agent to any authority. He does not appear to have taken any steps to have them, or even his first employer, provide evidence that might support his case.
On the evidence before the Tribunal, if this is not a case in which the Applicant was knowingly involved in fraud, this is a case where he essentially left matters to agents and where, similar to the Applicant in SZGJO, his interest was in the outcome of the visa application. Mr Palikhe’s IELTS results indicate that he was a competent user of English by the time the TRA first wrote to him. What he did both before and after that tends to indicate more that he was indifferent if not complicit rather than that he was a victim.
Whether Mr Palikhe was given bad or negligent advice, or even if he were to some extent misled by anyone, there has been no fraud on the decision-maker in the relevant sense.”

At paras.70 - 73, CB 503, the Tribunal continued:
“The evidence that Mr Palikhe himself gave that he did not work at L’Aspromonte is sufficient to give rise to a reasonable suspicion (at least) that the document that is the first skills assessment was obtained because of a false or misleading statement – that is, the statement that he did work at L’Aspromonte.
On the evidence before it the Tribunal finds that the first migration agent gave the Minister the first skills assessment with the visa application. Mr Palikhe knew that the first migration agent did that. That was essentially what he authorised and instructed her to do. It cannot therefore be concluded that there is “no evidence… that the applicant has given or caused to be given to the Minister … a bogus document.
It is on this basis that the Tribunal finds that Mr Palikhe does not satisfy PIC 4020 and so does not satisfy cl.485.224.
Mr Palikhe’s evidence indicates that persons have given false or misleading information that is not limited to the false or misleading statement that led to the first skills assessment being obtained. Given the Tribunal’s finding in relation to first skills assessment, is it not necessary for the Tribunal to consider whether there is “no evidence” that Mr Palikhe has given or caused to be given to a relevant person any other bogus document or information that is false or misleading in a material particular in relation to his visa application.”
The Tribunal went on to consider whether PIC 4020 should be waived. The Tribunal correctly observed:
“the requirements of cl.4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, or an Australian permanent resident or an eligible New Zealand citizen as defined in rule 1.03.”
The Tribunal noted in Mudiyanselage v Minister for Immigration & Citizenship [2012] FMCA 887 (“Mudiyanselage”) commencing at para.35 there is a discussion about the meaning of compassionate and compelling circumstances and the regard that may be had to relevant departmental policy. The Tribunal noted at para.79:
“The Tribunal has had regard to the relevant Explanatory Statement …. The Tribunal has also had regard to statements in the current version of PAM 3.”
The Tribunal went on to find at para.80:
“The Tribunal does not see in this case that Australia’s trade or business opportunities would be adversely affected or that Australia would miss out on a significant economic or other benefit of the kind mentioned in policy, or other compelling circumstances affecting the interests of Australia. The Tribunal does not see in this case health, welfare or family factors of the kind mentioned by way of example in the Explanatory Statement or policy or any other factors that give rise to compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.
The Tribunal went on to conclude that the waiver provisions should not be applied.
From these passages, it is clear that the Tribunal did not apply the meaning of “compelling circumstances” in the PAM manual rather than the test in PIC 4020. Rather, the Tribunal had regard to the explanatory statement in PAM 3 together with authority in Mudiyanselage. The Tribunal was clearly aware of what the requirements of the PIC 4020 waiver were and set them out accurately. There is nothing to suggest that the policy was applied in an inflexible or inappropriate fashion. Rather, the Tribunal clearly had regard to the terms of PIC 4020(4) as they stand. The decision made was one open to the Tribunal on the facts of the case as they stood and, in my view, no jurisdictional error is shown in the way the Tribunal dealt with the matter.

Conclusion

The Applicant has failed to make good any of his grounds. No written submissions have been received (see para.15). It follows that the application must be dismissed with costs.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 14 July 2016