Patel v Minister for Immigration
[2015] FCCA 1502
•5 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PATEL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1502 |
| Catchwords: MIGRATION – Skilled visa – positive skills assessment based on bogus document – employment reference found to be fraudulent – skills assessment revoked by relevant assessing authority – Public Interest Criterion 4020 not met by applicants – visa refused – review of decision of Migration Review Tribunal (“Tribunal”). ADMINISTRATIVE LAW – Allegation that the Tribunal fell into jurisdictional error – whether Tribunal erred in its interpretation of Public Interest Criterion 4020 – whether the Tribunal failed to comply with the requirements of s.359A of the Migration Act 1958 – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.97, 359AA, 359A, 424A, Migration Regulations 1994 (Cth), cls.485.211 and 485.224 of sch.2, item 4020 of sch.4 |
| Singh v Minister for Immigration & Border Protection [2014] FCA 850 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169 |
| First Applicant: | NILESHKUMAR JAYANTILAL PATEL |
| Second Applicant: | NIDHI NARENDRAKUMAR KHATRI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 401 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 28 May 2015 |
| Date of Last Submission: | 28 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2015 |
REPRESENTATION
| Solicitor for the Applicants: | Mr M. Jones, Parish Patience Immigration Lawyers |
| Counsel for the First Respondent: | Mr M.J. Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 401 of 2015
| NILESHKUMAR JAYANTILAL PATEL |
First Applicant
| NIDHI NARENDRAKUMAR KHATRI |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the second respondent (“Tribunal”) made on 22 January 2015. That decision was to affirm a decision of a delegate of the first respondent (“Minister”) to refuse to grant the applicants Skilled (Provisional) (Class VC) visas.
The applicants, who are husband and wife, applied for the visas on 28 March 2009. It was a criterion for the grant of the visa that the skills of the applicants for the applicants’ nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation: cl.485.221(1) of sch.2 to the Migration Regulations 1994 (“Regulations”). Only the first applicant sought to satisfy this criterion. He did so by relying upon a letter from Trades Recognition Australia (“TRA”) dated 11 March 2009. In that letter TRA indicated that the first applicant’s application for skills assessment in relation to an occupation as nursery person was successful and that that success was based upon evidence provided by the first applicant that he had satisfied 900 hours of directly related work experience.
In August 2009, TRA wrote to the first applicant in reference to its skills assessment and stated:
…The documentation that you provided to TRA included a statement from Rocky Gardens & Landscaping, which outlined that you were working there as a Nurseryman from 16 October 2007 to 23 November 2008. However, an investigation undertaken by the Department of Education, Employment and Workplace Relations (DEEWR) has revealed that Rocky Gardens & Landscaping does not appear to operate a nursery from the address 46 Kirkham Drive, Greenvale…
…If the results of this investigation are correct, your application no longer demonstrates that you have at least 900 hours directly related and relevant employment experience in the occupation Nurseryman. On this basis, TRA proposes to substitute a new opinion and find your application unsuccessful…
In response to this letter, the applicant provided to TRA, amongst other documents, a reference letter on the letterhead of Rocky Gardens & Landscaping dated 19 September 2009.
By letter dated 11 May 2010 an officer of the Department of Immigration (“Department”) wrote to the first applicant informing him that TRA had advised the Department of a decision to revoke the skills assessment and invited him to comment upon that information.
On 29 June 2010 a delegate of the Minister made a decision to refuse the applicants visas on the basis that the requirement in cl.485.221(1) was not satisfied. The applicants applied to the Tribunal for review of that decision. In support of that application, the applicants’ migration agent sent the Tribunal a written submission together with a number of documents including the letter dated 19 September 2009 from Rocky Gardens & Landscaping.
On 18 October 2011 the Tribunal wrote to the applicants’ migration agent giving particulars of information concerning TRA and inviting the applicants to comment upon that information. On 24 November 2011, a different migration agent made a submission to the Tribunal on behalf of the applicants in response to that letter. Included with those submissions were a number of documents including a statutory declaration purporting to have been made by Rocky Romeo on 23 November 2011.
On 21 February 2012 the Tribunal made its decision affirming the decision of the delegate to refuse to grant the applicants visas.
On 17 April 2013 this Court ordered, by consent, that writs of certiorari and mandamus issue in respect of the Tribunal’s decision.
On 24 April 2014 the Tribunal invited the applicants to provide evidence that the first applicant’s skills for his nominated occupation had been assessed by the relevant assessing authority. In response to that request, the applicants’ migration agent sent to the Tribunal the TRA assessment dated 11 March 2009 together with a copy of an undated document on the letterhead of Rocky Gardens & Landscaping. That document, signed by a Rocky Romeo, purported to certify that the first applicant had worked at a nursery from 16 October 2007 to 23 November 2008 and that he had worked for approximately 920 hours during that period. For that reason, it appears to be the document which was relied upon by the first applicant in order to obtain the TRA assessment. I will refer to it as the employment reference.
On 9 July 2014 the Tribunal wrote to the applicants providing particulars of information to the effect that the employment reference was fraudulently produced or procured and that it was provided by the applicants to TRA in order to obtain a positive skills assessment. The letter also noted that a person, Mr A, had pleaded guilty in criminal proceedings to the manufacture and sale of work references matching the employment reference submitted by the first applicant to TRA and that the first applicant’s reference was found in the possession of Mr A. The Tribunal invited the applicants to respond to that information.
In reply to that letter the first applicant wrote to the Tribunal denying that he had been involved with any fraudulent activity or that he had provided any “misguided information” to any authority in Australia. In addition, he denied any knowledge of Mr A and submitted that his work with Mr Romeo was genuine.
The first applicant attended a hearing conducted by the Tribunal on 10 December 2014. At the hearing, he agreed that there was only one successful TRA skills assessment and that Mr Romeo had given him the employment reference which was, in turn, given to TRA in order to obtain the skills assessment. Apart from asking questions about the authenticity of the employment reference, the Tribunal raised two particular matters of concern to it at the hearing: first, the fact that the applicant’s movement records showed that he had departed Australia on 9 October 2007 and returned on 9 December 2007 meaning that he could not have commenced work for Mr Romeo on or from 16 October 2007 as suggested in the employment reference; and the apparent differences between the signatures of Mr Romeo on two of the documents submitted to the Tribunal by the applicant for the purposes of the review.
After the hearing, the first applicant sent to the Tribunal a letter setting out a list of addresses where he had worked with Mr Romeo.
The Tribunal made its decision on 22 January 2015 affirming the decision of the delegate.
The Tribunal stated that the issue before it was whether the skills assessment from TRA was a bogus document such that the first applicant failed to satisfy cl.485.224 (PIC 4020). It found that the first applicant had given the skills assessment to the Department and then went on to consider whether it reasonably suspected that it was obtained because of a false or misleading statement. It concluded that it did for three reasons: first, Mr A pleaded guilty to the manufacture and sale of work references and the employment reference provided to the TRA by the first applicant was found in Mr A’s possession; secondly the dates referred to in the reference as being the period during which the first applicant had worked for Mr Romeo were inconsistent with the fact that he was out of the country during part of that period; and thirdly, there were apparent differences in the signatures that purported to be Mr Romeo’s signatures.
For those reasons, the Tribunal concluded that the skills assessment was a bogus document and therefore the first applicant did not meet PIC 4020(1).
The Tribunal then considered whether or not the requirements of PIC 4020(1) or (2) should be waived and concluded that they should not.
For those reasons, the Tribunal concluded that the first applicant had not satisfied the criteria for the grant of the visa and so affirmed the decision of the delegate.
Consideration
At the hearing, I granted leave to the applicants to file in Court an amended application which contained two grounds: first, that the Tribunal erred in its interpretation of item 4020 of sch.4 to the Regulations (“PIC 4020”); and secondly that the Tribunal failed to comply with the requirements of s.359A of the Act.
Ground 1: PIC 4020
The gist of this ground is that the Tribunal did not turn its mind as to whether there was any purposeful falsity in the case and that, in light of the decision of the Full Court of Federal Court in Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169 (“Trivedi”), that amounted to a misconstruction of that item and so led the Tribunal into jurisdictional error. The Minister accepted that the decision in Trivedi applied to the present case but argued that the Tribunal had clearly, at least by implication, addressed itself to the issue of whether there was any purposeful untruth.
One of the criteria for the grant of the visa for which the applicants applied was that the first applicant satisfied PIC 4020: cl.485.224 of sch.2 to the Regulations. PIC 4020 provides:
(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.
(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 particular” means 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.
“Bogus document” in PIC 4020 has the same meaning as that term in s.97 of the Act: reg.1.03. That section provides:
97 Interpretation
In this Subdivision:
“application form”, in relation to a non-citizen, means a form on which a non-citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
“bogus document” in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)purports to have been, but was not, issued in respect of the person; or
(b)is counterfeit or has been altered by a person who does not have authority to do so; or
(c)was obtained because of a false or misleading statement, whether or not made knowingly.
…
In Trivedi, the appellant applied for a student visa for which she was required to have a certain level of English language ability. In order to meet that requirement, she provided to the Department the results of an IELTS test which she had sat in India. She later admitted that that document was not “a right document” but that she had only lodged it because she was misguided by certain agents in India and that she had in the meantime achieved the required English outcome by her own efforts. The Tribunal accepted that the applicant was not aware that the document she had submitted was a false document but found that it was false or misleading in a material particular, and because it found that there were no reasons to waive the requirement in PIC 4020, concluded that the appellant had failed to satisfy that requirement.
On appeal from this Court, the question was whether there was a mental element required by PIC 4020. His Honour Buchanan J (with whom Allsop CJ and Rangiah J agreed) said, at 177 – 178:
[33]In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. To take the example of bogus documents, a counterfeit document is not produced accidentally. Similarly, to charge that a statement is false is not to say only that it is wrong. The accusation potentially imports some element of knowledge of intention on somebody’s part, and in my view does so in the present context.
[34]Secondly, consideration of the circumstances of the introduction of PIC 4020 confirms me in the view derived from the text of PIC 4020 that it is not directed to information or documents which are not tainted in the way I have indicated.
It is, with respect, not clear to me how Buchanan J’s analysis deals with the fact that a bogus document can be one that was obtained because of a statement that was either false or misleading, nevertheless, I accept, as I must, that the effect of Trivedi is, as described by White J in Singh v Minister for Immigration & Border Protection [2014] FCA 850 at [23], that “it was not necessary for the application of PIC 4020 that an applicant be knowingly involved in the giving of false information, but that it was necessary that the information be purposely untrue.”
Mr Jones, who appeared for the applicants in these proceedings, argued that, rather than considering whether the employment reference was purposely untrue, the Tribunal concluded that the first applicant did not meet PIC 4020(1) simply from its finding that the skills assessment was a bogus document. The difficulty with that argument is that it pays insufficient attention to the context of those conclusions. Once all of the Tribunal’s reasoning is taken into account, it is clear that it did not fall into the error alleged.
First, the Tribunal specifically referred to the requirement that the representation be purposely untrue. At [53] of its reasons it said:
… While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged: Trivedi v MIBP [2014] FCAFC 42.
If that were not sufficient to deal with this ground, the balance of the Tribunal’s reasoning would be. As noted above, one of the matters relied upon by the Tribunal in reaching its conclusion that the skills assessment was a bogus document was that the employment reference by reason of which the assessment was obtained, was a false or misleading statement. This was because Mr A had pleaded guilty to the manufacture and sale of work references and that the first applicant’s employment reference was found in Mr A’s possession. With respect to the applicants’ argument, the Tribunal’s reliance upon that evidence can only mean that it implicitly found that the employment reference was purposely untrue. There can be no other inference drawn from the fact that a person had been convicted of manufacturing such references and was also in possession of the very reference in question.
For those reasons, the first ground is rejected.
Ground 2: Breach of s.359A
As noted above, one of the reasons for which the Tribunal found that the employment reference was false was the apparent difference in signatures that purported to be Mr Romeo’s signatures. The applicants argue that that difference was “information” within the meaning of s.359A of the Act and, accordingly, the Tribunal was obliged either to give the applicant written particulars of that information, in accordance with s.359A(1), or to follow the procedure set out in s.359AA of the Act. It was common ground that the Tribunal did not follow either of those suggested procedures. However, the Minister argued that the Tribunal was not obliged to because the identified differences between the signatures purporting to be those of Mr Romeo were not “information” within the meaning of the Act. That submission must be accepted.
Section 359A(1) provides:
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
In SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 the plurality said, at [18]:
… However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence …
That statement finds its roots in a decision by Sackville J some fifteen years ago. In Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109, his Honour held that the word “information” in s.424A (the equivalent of s.359A) referred to “knowledge communicated or received concerning some fact or circumstance”.
Here, the so-called “information” relied upon by the applicants is the difference between two signatures. That difference is not evidentiary material or documentation, and it is not knowledge communicated or received concerning some fact or circumstance. It is simply the result of the Tribunal’s analysis of such documentation or evidentiary material. For that reason it does not fall within the meaning of “information” in s.359A of the Act and there was no obligation on the Tribunal to comply with the procedure under that section or the alternative procedure under s.359AA.
For those reasons the second ground is rejected.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Smith
Associate:
Date: 5 June 2015
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