PATEL v Minister for Immigration

[2015] FCCA 2142

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2142

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Skilled (Residence) (Class VB) visa – procedural fairness – bogus document – whether the applicant’s IELTS Test results were fraudulently obtained – whether the applicant was allowed to make submissions in regards to the veracity of his IELTS Test – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.97, 476

Migration Regulations 1994, reg.1.15C, cl.885.224

Minister for Immigration and Citizenship v Maman [2012] FCAFC 13

Applicant: DHIRAJKUMAR PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1137 of 2015

Judgment of: Judge Street

Hearing date: 7 August 2015

Date of Last Submission: 7 August 2015

Delivered at: Sydney

Delivered on: 7 August 2015

REPRESENTATION

Counsel for the Applicant: Mr L. Karp

Solicitors for the Applicant: Pannu Lawyers

Counsel for the Respondents: Ms R. Francois

Solicitors for the Respondents: DLA Piper

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.

2. The amended application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1137 of 2015

DHIRAJKUMAR PATEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal affirming a decision of the delegate not to grant the applicant a Skilled (Residence) (Class VB) visa. The first-named applicant applied for the visa on 24 March 2011 and the delegate refused the grant of a visa on the basis that the first-named applicant did not satisfy the requirements of cl.885.224 of Schedule 2 of the Migration Regulations 1994 because he did not satisfy public interest criterion 4020. The grounds of the application are set out as follows:

   1. The Tribunal acted in breach of s. 359A of the Migration Act by failing, to give the applicant clear particulars of information as to why it considered that the applicant had used an imposter to sit his IELTS test in India in 2011.

   Particulars

   (a) Failure to disclose to the applicant in the manner required by s 359A or 359AA, that reasons for affirming the decision under review included physical characteristics of the applicant's IELTS test result form.

   2. The Tribunal decision was affected by a breach of natural justice or procedural fairness.

   Particulars

   a) Conduct of the organisation which conducted investigations of IEL TS test results in India in not informing the applicant of the reasons why, and the information upon which the published results of his IELTS Test taken in India in 2011 may be cancelled before they were actually cancelled.

   b) Alternatively to Particular (a) the conduct of the organisation which conducted investigations of IELTS test results in India in not informing the applicant of the reasons why, and the information upon which, the published results of his IELTS test. taken in India in 2011 may be cancelled before the records of its investigations were destroyed.

   3. The Tribunal's decision was arbitrary and unreasonable.

   Particulars

   (a) The Tribunal assumed that IELTS conducted a proper investigations into the question of whether the applicant had used an imposter to sit his IELTS test without any evidence or information to support that conclusion.

2. In the delegate’s decision letter on 1 September 2014 the delegate identified an IELTS report for the applicant which provided a test result as follows:

   Listening: 8.0

   Reading: 8.5

   Writing: 7.0

   Speaking: 7.0

   Overall: 7.5

3. The delegate noted that on 6 September 2011 the department conducted a verification of the IELTS report and the scores identified were as follows:

   Listening: 0.0

   Reading: 0.0

   Writing: 0.0

   Speaking: 0.0

   Overall: 0.0

4. The delegate noted that on 14 September 2011 IDP Education advised the Department that the applicant had used an imposter to set an IELTS test at the test centre IM855 on 17 February 2011. 

5. Relevantly, the delegate found that the IELTS test provided by the applicant was a bogus document within the meaning of s.97 and that the delegate reasonably suspected that the document was not issued in respect of the applicant. The delegate found that the applicant had given or caused to be given to an officer a bogus document in relation to the application for a visa and was satisfied that the applicant did not meet public interest criterion 4020 and did not meet the requirements of the cl.885.224.

6. In the evidence before the Court the applicant left India, it appears, in March 2011 to come to Australia.  On 27 May 2011 there was sent to the applicant at a particular address a letter entitled:

   Notification of cancellation of results to candidate – post issue of result

   …

   Strict quality control procedures are in place to protect the integrity and security of the IELTS test.  As a result of these procedures, your test scores for 17 February 2011 have come under scrutiny and have been investigated.  The notification of investigation that was sent to you on 1 April 2011 invited you to submit a statement towards the investigation; however no statement has been received from you to date.

7. The letter continued after referring to the fact that candidates must not be the subject of impersonation:

   We have decided to take the following actions: 

   ·    A report has been made to the IELTS Test Partners; 

   ·    The result has been cancelled.  This means the scores have been altered to zero in each of the band scores and overall band score and these are the scores that will be viewed on the on-line verification site for Stakeholder/Receiving Organization; 

   ·    The Receiving Organization has been advised of the cancellation of your result in accordance with the Declaration on the IELTS Application Form.

   Any statement or query relating to your cancellation of results should be forwarded to us to …(email omitted)

8. It is clear that the letter of 27 May 2011, even though allegedly sent to the wrong address, came to the attention of the applicant because the applicant sent an email on 7 June 2011 to the relevant email address notified in the letter in respect of the opportunity to query the results in relation to the cancellation.  That letter relevantly provided:

   I AM DHIRAJKUMAR BABULAL PATEL

   I SEND TO YOU ATTACHMENT FILE PLEASE YOU HAVE A READ AND GIVE ME THE POSITIVE REPLY. 

   YOU HAVE A GOOD DAY. 

   THANKS.

9. That email dated 7 June 2011 was apparently printed out on 23 May 2014 and tendered before the delegate but no file, as allegedly attached, was provided.  No steps seems to have been taken by the applicant to follow up or pursue that letter, although reference was made to an alleged reading of a website on 29 June 2013, but there is no supporting evidence to explain that document.

10. The transcript of evidence by the applicant before the Tribunal was tendered in respect of the hearing in which the applicant attended on 26 February 2015 and the applicant sought to maintain that the letter of 1 April 2011 was a letter that he had never received.  It is not apparent that the applicant made any request for the letter of 1 April 2011 or, indeed, took any step beyond the sending of the email of 7 June 2011 to agitate or pursue what was a serious allegation of him having had an impersonator sit for his test.

11. This issue was explored by the Tribunal with the applicant and the applicant gave evidence to the effect that he did not pursue that further with the body that issued the IELTS test because it was their problem, not his.  The Tribunal raised with the applicant whether he had done other IELTS tests.  The applicant said he had done one in 2006 but the score was not apparently very good.  Why the applicant did not sit another IELTS test was never explained to the Tribunal.

12. The Tribunal set out the evidence that was given by the applicant about his allegedly not receiving the first letter from the IDP and allegedly being unable to challenge the test. It is apparent that the applicant did not do more than send what appears to be an email of limited literacy dated 7 June 2011 and which did not itself dispute the cancellation or reason for cancellation.  The Tribunal noted that it had raised the earlier IELTS tests with the applicant and relevantly said:

    20. The Tribunal noted that if he had done another test around that time and got a good result, then this would have supported his claims. The Tribunal observed that he knew the results had been cancelled in 2011, as he had received the cancellation letter in June 2011, but did not do another IELTS test.

    21. The Tribunal gave the applicant one week to provide further evidence, including evidence that the original was provided to the Department, or the original itself.

    22. After the hearing, on 2 March 2015, the representative provided the following relevant information:

     Evidence that the original IELTS test was sent by registered post to the Department on 9 January 2014

     Emails and letter dated 9 January 2014 relating to the information sent to the Department  

13. The Tribunal turned to the issue of whether or not the applicant had given or caused to be given a bogus document in relation to the IELTS test and after referring to the notification of the Department of 14 September that the applicant had used an imposter to sit the particular test, the Tribunal noted:

    41. …This evidence is consistent with the contents of the above letter.

14. In that regard, the Tribunal was referring to the letter dated 27 May 2011, which the applicant acknowledged he had received.  The Tribunal relevantly found:

    42. The Tribunal considers the letter from the IELTS Administration to be probative and persuasive in relation to this question. The Tribunal accepts that the IELTS Administration would not be cancelling IELTS test results without having conducted a proper investigation beforehand and without strong evidence that a fraud had taken place.

    43. Further, the Tribunal considers that it is highly implausible that the applicant has not been able to contact anyone within the IELTS Administration in the years since the July 2011 letter in order to discuss the cancellation of his IELTS test results. The Tribunal considers that even if he did not receive responses to some emails he sent, he has decided not to take any real action in this regard because it may be adverse to him.

    44. What this means is that there is no evidence before the Tribunal to show that the cancellation of his results on 27 May 2011 has in any way been altered or reversed by the IELTS Administration because the original decision was wrong.

    45. Further, the Tribunal considers it unusual that the applicant did not undertake a new IELTS test shortly after he received the advice that his test results had been cancelled in July 2011, in order to assist in any claim that it was him who sat the test and that he was capable of such scores at that time, and especially if he could not get any response from the IELTS Administration at that time.

    46. In regards whether the Tribunal is satisfied that the applicant sat the February 2011 IELTS test as claimed, the Tribunal has now determined that the issue of what the original IELTS test result looks like is not a relevant consideration, and is not the reason, or part of the reason, for it making its decision here.

    47. Even if the original was available and it looked like a normal IELTS test result form, there is still the considered decision of the IELTS Administration to cancel his IELTS test result based on their investigations and enquiries. The Tribunal does not consider it appropriate to try to second-guess their enquiries and decision. Hence the Tribunal considers that the IELTS cancellation letter is the relevant documentary consideration here and as noted, is of great probative value.

    48. Based on all the above, on the evidence before it the Tribunal is not satisfied of the applicant’s claim that it was he who sat the February 2011 IELTS test in India. It prefers the conclusion of the IELTS Administration that some other person sat the test using his identity.

    …

    50. The Tribunal’s finding that it was not the applicant who sat this IELTS test means that it now has much more than a reasonable suspicion that he has given the Department a document that purports to have been, but was not, issued in respect of him. Thus (a) of the definition is met.

    …

    55. Thus the Tribunal is satisfied that (a) and, in the alternative, (c) of the definition of bogus document are satisfied and hence that the February 2011 IELTS test result form is a bogus document.

    …

    57. Thus the requirement in PIC 4020(1) is not satisfied in relation to (a), being this visa application.

    …

    64. There being no basis for waiver, on the basis of the above the applicant does not satisfy PIC 4020 for the purposes of cl.885.224. His failing to meet this criteria means that the secondary applicant’s application for review also fails.

15. Ground 1 of the amended application is not pressed. 

16. In relation to ground 2, Mr Karp of counsel contended that the body conducting the IELTS test was required to comply with the procedures of natural justice and in that regard he drew attention to the fact that the regulations at the time, being reg.1.15C, incorporated the scores in the IELTS test in relation to the grant of a general-skilled migration visa.

17. Mr Karp of counsel argued that consistent with the approach in respect of an expert determination of the kind identified in the Minister for Immigration and Citizenship v Maman [2012] FCAFC 13, the IELTS test body was required to comply with the rules of procedural fairness. Assuming in favour of Mr Karp of counsel that there was a requirement to comply with the rules of procedural fairness, it is clear in my opinion that the IELTS body did do so by the communication in the letter of 27 May 2011 in which it invited and provided the applicant an opportunity to respond to the cancellation to the extent that it said:

    Any statement or query relating to your cancellation of results should be forwarded to us to …(email omitted)

18. It does not appear that the applicant pursued any query in that regard or disputed the grounds of cancellation.  I reject the proposition that the letter dated 27 May 2011 was a decision that of itself culminated in a denial of procedural fairness by the IELTS body.  In my opinion, there is nothing to support the proposition that the IELTS body was not perfectly willing to entertain a query in relation to that adverse finding and in this case there was certainly no step taken by the applicant that appears to have endeavoured to agitate in any meaningful way a challenge to the serious adverse finding.

19. The fact that the applicant was able to respond on 7 June 2011 was entirely consistent with the applicant being given the opportunity consistent with the principles of procedural fairness and natural justice to further agitate the communication, that is 27 May 2011.  On the evidence before the Tribunal, it is clear that the applicant did not articulate or diligently pursue any challenge in respect of that adverse finding on 27 May 2011, apparently regarding it as the problem of the body and not his problem.

20. To the extent that ground 2 asserts a denial of procedural fairness and natural justice by the IELTS body, it is not in my opinion made out.  Further, I accept the submission of the first respondent that it is clear in this case that the applicant had the opportunity consistent with the principles of procedural fairness and natural justice to challenge the proposition that the IELTS test result was one in which he in fact sat on 17 February 2011 and they were in fact his scores.

21. It is clear that the Tribunal appreciated that the applicant was able to go behind the letter of 27 May 2011 and persuade the Tribunal that these were in fact his scores.  It was material to the Tribunal in that regard and no doubt an obvious and compelling factor to take into account that the applicant had not been willing to undertake any further IELTS test or produce his 2006 results or sit any further test or produce the correspondence relating to his alleged challenge to the test.

22. I accept the first respondent’s submission that the opportunity provided to the applicant before the Tribunal was in compliance with the requirements of procedural fairness and that the applicant had the opportunity to persuade the Tribunal that the test was his.  I also accept the first respondent’s submission that it is in the Tribunal’s review to which the principles of procedural fairness have application and that the Tribunal complied with those principles. This is not a case of the same kind as in Maman where the test result of the IELTS was binding and conclusive on the Tribunal. I accept the first respondent’s submission that the principles in Maman had no application to the IELTS test.

23. It is clear that the body conducting the IELTS test did provide the applicant with an opportunity to agitate the cancellation notwithstanding that he did not receive, he alleges, the letter of 1 April 2011 and that was an opportunity that the applicant did not pursue.  In those circumstances, there is no substance in relation to ground 2 of the amended application.

24. In relation to ground 3, Mr Karp of counsel sought to agitate whether the alleged findings in paras.42 and 47 of the Tribunal’s decision were ones that were irrational and arbitrary or otherwise lacked a logical basis.  Paragraphs 42 and 47 were part of the reasoning process which led to the finding in paragraph 48.  Paragraph 48 referred to being based on all the above and clearly picked up not just the reasoning in paras.42 and 47, but also the evidence given by the applicant.

25. To the extent that the Tribunal referred to the proposition of a proper investigation, the procedure identified in the decision of the delegate in terms of the notification regime that had application in respect of an imposter or bogus test result and the notification of the relevant body together with the reference in the letter as to there being strict quality-control procedures in place to protect the integrity and security of IELTS tests is more than a sufficient logical basis to support the finding made by the Tribunal in para.42. In my opinion, the findings in paras.42 and 47 and, indeed, the ultimate finding in para.48 cannot be said to lack an evident and intelligible justification and accordingly there is no substance in ground 3. The amended application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  11 August 2015