Patel v Minister for Immigration
[2017] FCCA 1003
•17 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1003 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – leave as to extension of time – bogus document – where Tribunal considered PIC4020 – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.359AA, 368D, 476, 477 Migration Regulations 1994 (Cth), cls.885.224A, 4020 |
| Cases cited: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 |
| First Applicant: Second Applicant: Third Applicant: | KAUMILKUMAR RAJANIKANT PATEL SMITA KAUMILKUMAR PATEL KRISHA PATEL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2276 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 17 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 17 March 2017 |
REPRESENTATION
| The First Applicant: | In Person |
| The Second Applicant: | In Person |
| Counsel for the First Respondent: | Mr Smyth |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Applicants have leave to amend their application so as to seek an extension of time in which to commence the proceedings pursuant to s.477(2) of the Migration Act 1958 (Cth).
The application for an extension of time is dismissed.
The Applicants pay the costs of the First Respondent in the sum of $7206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2276 of 2015
| KAUMILKUMAR RAJANIKANT PATEL |
First Applicant
| SMITA KAUMILKUMAR PATEL |
Second Applicant
| KRISHA PATEL |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Edited Ex Tempore Reasons)
These proceedings commenced on 8 October 2015 when the Applicants filed an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) of 31 August 2015 which affirmed an earlier decision of a delegate of the First Respondent to refuse the Applicants the Skilled (Residence) (Class VB) subclass 885 (Skill-Independent) visa (‘the visa’) they sought. The grounds of the application are identified and considered hereafter in these reasons.
The first matter which the Court needed to consider is the question of an extension of time. By s.477(1) of the Migration Act 1958 (Cth) (‘the Act’) an application to this Court for a remedy under s.476 of the Act must be made within 35 days of the date of the migration decision.
The terms of s.477(1) of the Act impose a mandatory criterion on the Court’s exercise of its jurisdiction. The term “date of the migration decision” in s.477(1) takes its meaning from sub-s(3) which relevantly provides:-
“(3) In this section:
“date of the migration decision” means:
(b), in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5 – the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1).”
Relevantly to this case section 368D(1) provides:-
“(1) A decision on a review that is given orally by the Tribunal is taken to have been made and notified to the applicant for the review, on the day and at the time the decision is given orally.”
Accordingly, in these proceedings the date of the migration decision is 31 August 2015, being the date of the Tribunal’s oral decision and not 6 September 2015 which is the date of the written decision as referred to in the Statement of Decision and Reasons (‘the Decision Record’) of the Tribunal. The judicial review application was, therefore, lodged three days out of time and an extension under s.477(2) of the Act is required. The Minister did not oppose the necessary amendment to the application. The Court granted leave to amend the application to allow the Applicants to proceed.
The Minister argues that the necessary extension of time ought not be granted. The Minister submits that an analysis of the grounds of the judicial review application, in light of the principles Mortimer J identified in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63], reveals that none of the grounds are “arguable”, “reasonably arguable”, “sufficiently arguable” or have “reasonable prospects of success”.
History
The Applicants are citizens of India. The First Applicant applied for the visa on 16 July 2009. The Second and Third Applicants are the First Applicant’s wife and son. Their visa applications are contingent on the First Applicant’s application.
The visa application submitted by the First Applicant included a statement that he had obtained a skills assessment from Trades Recognition Australia (‘TRA’) for the nominated occupation of graphic pre-press tradesperson. This skills assessment had been obtained on the basis of a work reference, apparently furnished by Xtreem Technology certifying that the First Applicant had:-
“Completed in excess of 900 hours of voluntary work experience.”
On 7 May 2014 an officer of the Department of Immigration and Border Protection (‘the Department’) wrote to the First Applicant relevantly as follows:-
“Bogus document
On 4 December 2009, in support of your application for a Skilled (Residence) (Class VB) subclass 885 (Skill-Independent) visa, you provided to this department a skills assessment, reference number TRA08/004219320, from Trades Recognition Australia (TRA) dated 15 September 2008. To obtain this skills assessment you supplied to TRA, documents to support 900 hours of work experience at Xtreem Technology.
On 22 December 2011, you provided to this department, a reference letter from Xtreem Technology, dated 28 July 2008, signed by manager, Dez Nguyen, confirming 900 hours of voluntary work experience.
On 9 September 2009 the owner of Xtreem Technology, Mr Cuong Vinh Thoi, provided a written statement to this department saying that Dez Nguyen was not a manager at Xtreem Technology and that Dez Nguyen was not authorised to sign work references for Xtreem Technology.
In consideration of this information I have reason to believe that the skills assessment submitted as part of your Skilled (Residence) (Class VB) subclass 885 (Skilled- Independent) visa may be a bogus document as it has been obtained because of a false or misleading statement.”
The statement of Mr Cuong Vinh Thoi, referred to in the Department’s letter above, is before the Court in evidence as contained in the Court Book, pages 71 to 74. Mr Thoi made the statement in the context of an investigation by the Department. In summary, Mr Thoi said that:-
a)Xtreem Technology does not employ work experience students;
b)Dez Nguyen was a part-time employee of Xtreem Technology. He was not a manager and he was not authorised to sign Xtreem Technology work references;
c)to the best of his knowledge the First Applicant had not done 900 hours of work experience at Xtreem Technology; and
d)he recently terminated Mr Nguyen’s employment at Xtreem Technology because of the unauthorised work references he had given.
In response to the delegate’s invitation to the Applicant to comment on information of 23 May 2014, the Applicant responded claiming that he had worked as a graphic pre-press operator at Xtreem Technology on a voluntary basis from August 2007 to July 2008. He also said that the TRA’s assessment of his skills included telephone and internet verification of his work experience at Xtreem Technology and that Mr Thoi would not recognise him because he, the Applicant, dealt with Mr Dez Nguyen most of the time.
On 14 October 2014 a delegate of the Minister refused to grant the visa. The basis of the delegate’s decision was his conclusion that the Applicant was never employed in any capacity by Xtreem Technology and the work reference letter he provided in support of his skills application was a bogus document submitted to TRA for the purpose of deception and to gain an advantage by fraudulent means.
On 30 October 2014 the Applicant sought review of the delegate’s decision. A copy of the decision accompanied the review application before the Tribunal.
The Applicants, accompanied by their representative, appeared before the Tribunal on 31 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Gujarati and English languages. The Tribunal gave its decision on the review at the conclusion of the hearing held on 31 August 2015.
Tribunal decision
The Tribunal correctly stated in paragraph 8 of the Decision Record that the issue in the review was whether the Applicant met public interest criterion (‘PIC’) 4020 of Schedule 8 to the Migration Regulations 1994 (Cth) (‘the Regulations’) as required by cl.885.224A of Schedule 2 of the Regulations and whether if not, compliance with the requirements in cl.4020(1) and (2) could be waived if there were certain compelling or compassionate reasons justifying the granting of the visa.
PIC4020, at the relevant time, was as follows:-
“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 Tribunal during the review of a Part 5 reviewable decision, 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.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A) The applicant satisfies the Minister as to the applicant's identity.
(2B) The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particularmeans information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: For the definition of bogus document, see subsection 5(1) of the Act.”
As adopted from the First Respondent’s contentions of fact and law, relied upon by the First Respondent in the proceeding and filed on 27 February 2017 at paragraph 18, and being an accurate record of the Tribunal’s findings, the Tribunal reasoned as follows:-
“18.1, Mr Nguyen’s verification of Mr Patel’s contended 900 hours of work experience was not given any significant weight given that Mr Nguyen was “later sacked for issuing unauthorised work references”;
18.2, the existence of an Xtreem Technology business card bearing Mr Nguyen’s name demonstrated no more than he was employed by Xtreem Technology; it did not demonstrate that he was a “management level employee” in the business;
18.3, the 2014 correspondence Mr Patel placed before the Tribunal between himself and Mr Lowden of Xtreem Technology did not confirm that Mr Patel had performed 900 hours work experience there in 2007/8;
18.4, Mrs Patel’s evidence seeking to corroborate her husband’s claim to have completed his work experience at Xtreem Technology could not outweigh other evidence;
18.5, that the matters Mr Thoi referred to in his statement which were discussed at hearing (Act, s 359AA) “establish[ed] to the Tribunal’s satisfaction that Dez Nguyen was involved in a fraudulent enterprise whereby he provided false Xtreem Technology work experience references to international students for use in their skill assessment applications in return for a fee”, and;
18.6, that it was satisfied that Mr Patel did not, in fact, undertake the work experience claimed at Xtreem Technology. So that the Tribunal reasonably suspected that the reference he provided was a bogus document for the purposes of PIC4020.”
The Tribunal concluded on this basis that the First Applicant did not meet PIC4020(1). It then turned to a consideration of the question of waiver in relation to which it:-
a)correctly identified that PRC4020(1)’s requirements might be waived where there were compelling or compassionate circumstances affecting the interests of Australia or certain Australian and New Zealand citizens and permanent residents;
b)accepted, as claimed that:-
i) the First Applicant was working as a self-employed contractor to an Australian business, pays tax and has never committed any offences;
ii) the Second Applicant was also employed and if required to leave her employment her absence would be felt by her employer; and
iii) the First and Second Applicants would not be in a position to invest in Australia, buy property here or start their own business.
c)nevertheless, considered “such matters to be quite routine or common place amongst visa applicants and not circumstances that would justify the granting of the visas”.
Consideration
In respect of the extent of the delay in the filing of the application, the Court accepts that it is minimal and notes that the Minister did not oppose leave to the Applicants to amend their application to seek an extension of time. No prejudice is suffered by the First Respondent in these proceedings in this regard.
The real issue for the Court this day is the likely prospects of success of the application in the event that an extension of time is granted.
The Applicants’ grounds of application are contained in three paragraphs. Ground 3, which states that further points for jurisdictional error will be provided at a later date does not of itself raise any claim of jurisdictional error much less go to the Court determining there is an ‘arguable’ case.
Ground 2, likewise, does not assist the Applicant in that it also does not raise an arguable case. The argument in ground 2 is, in effect, that the Tribunal’s PIC4020(4) discretion miscarried. On the material before it, it was open to the Tribunal to find that there were no compassionate or compelling circumstances for the purpose of PIC4020(4). The Applicants raised no matters before the Tribunal in respect of its exercise of discretion by reference to the Third Applicant who was born in Australia and has only lived in Australia since birth. Further if the argument raised in that ground is an attempt to engage PIC4020(4)(b) it fails on the basis that the Third Applicant is not an Australian permanent resident or eligible New Zealand citizen (see reg.1.03 of the Regulations).
In respect of the various grounds, as contained in paragraph 1 of the application, none of them raise an arguable case that jurisdictional error might attend the Tribunal decision. An allegation of bias should not be lightly made. The mere assertion that the Applicants entertained such an apprehension is of no assistance to them. Nothing more than a bare allegation is put by the Applicants. Similarly, the simple allegation by the Applicants that the Tribunal had “already made its decision prior to the hearing and was giving a false impression of natural justice” does not assist the Applicants. It is an allegation that is subjective and unsupported. The Decision Record shows the Tribunal carefully considered the Applicants’ evidence and put adverse information on which it relied to the Applicants as contemplated by s.359AA of the Act.
The Applicants’ allegation that the Tribunal failed to make further inquiries or obtain further facts cannot succeed. Whilst in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said as follows:-
“The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.”
The Court is satisfied that the Tribunal asked relevant questions of the Applicants made obvious inquiries and gave careful consideration to the claims and matters put before it by the Applicants.
The Tribunal had no obligation to undertake its own investigations as to the matters before it, nor to independently seek statements from Mr Nguyen or Mr Thoi beyond those that were already before the Tribunal. The First Applicant could have called oral evidence from either man had he wished.
The Applicants’ complaint about the weight given to evidence by the Tribunal is not helpful in a judicial review application because, as submitted by Counsel for the First Respondent, within the bounds of rationality,[1] weight is a matter for the decision-maker and in this instance, the Tribunal.[2]
[1] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 130-131 (Crennan and Bell JJ).
[2] MZZNK v Minister for Immigration and Border Protection [2015] FCA 217, 48.
It was open to the Tribunal to give Mr Thoi’s statement significant weight and to prefer the evidence in it to the other evidence before it. The Tribunal was easily able to find that Mr Thoi’s statement:-
“Provided overwhelming evidence that the Applicant did not, in fact, undertake voluntary work experience at Xtreem Technology in 2007/08 and that he relied on a fraudulent work reference obtained from Dez Nguyen in order to obtain his successful skills assessment.”
No arguable case to establish jurisdictional error in the Tribunal decision arises on the grounds as raised by the Applicants in their application before the Court. Accordingly, the application for an extension of time must be dismissed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Associate:
Date: 18 May 2017
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