Patel v Minister for Immigration

[2014] FCCA 2059

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2059

Catchwords:
MIGRATION – Skilled visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal applied an incorrect test, made a finding which was not adequately supported by the evidence and failed to make an inquiry.

Legislation:

Migration Act 1958, ss.97, 474

Migration Regulations 1994, cl.885.224 of sch.2, criterion 4020 of sch.4
Migration Amendment Regulation 2012 (No.2), reg.2, items 26 and 29 of sch.2

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v Li (2013) 249 CLR 332
Trivedi v Minister for Immigration & Border Protection [2014] FCAFC 42
Vyas v Minister for Immigration & Citizenship [2012] FMCA 92
Trivedi v Minister for Immigration & Citizenship [2013] FCCA 578
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123

First Applicant: JASMINA HARSHADBHAI PATEL

Second Applicant: PIYUSHKUMAR KASHIRAM PATEL

Third Applicant: SHAILY PIYUSHKUMAR PATEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2516 of 2013

Judgment of: Judge Cameron

Hearing date: 25 August 2014

Date of Last Submission: 25 August 2014

Delivered at: Sydney

Delivered on: 11 September 2014

REPRESENTATION

Solicitors for the Applicants: Parish Patience

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2516 of 2013

JASMINA HARSHADBHAI PATEL

First Applicant

PIYUSHKUMAR KASHIRAM PATEL

Second Applicant

SHAILY PIYUSHKUMAR PATEL

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant, who is a citizen of India, applied for a Skilled (Residence) (Class VB) subclass 885 visa on 18 December 2009. Her husband and child, the second and third applicants, were included in that application. On 5 April 2013 the applicants’ application was refused by a delegate of the first respondent (“Minister”) on the basis that the first applicant did not satisfy Public Interest Criterion (“PIC”) 4020 of sch.4 to the Migration Regulations 1994 (“Regulations”) because she had provided a bogus document. The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Legislation

1. The criteria for the grant of a subclass 885 visa were set out in pt.885 of sch.2 to the Regulations. Part 885 was omitted on 1 July 2013 but it continues to apply to visa applications made before that date: reg.2 and items 26 and 29 of sch.2 to the Migration Amendment Regulation 2012 (No.2).

2. Clause 885.224 was a time of decision criterion. The version which the Tribunal had to apply said:

   The applicant:

   (a)satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021; and

   (b)if the applicant had turned 18 at the time of application - satisfies public interest criterion 4019.

3. At the time of the Tribunal’s review PIC 4020 relevantly provided:

   (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.

   …

4. Section 97 of the Act defines a bogus document as:

   … 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.

Background facts

Primary application

1. In her application form the first applicant identified her English language ability as “proficient”.  She stated that she had undertaken an International English Language Testing System (“IELTS”) test on 31 January 2009 and provided a test reference number.  The first applicant also provided a test report which bore the same test reference number as the one she disclosed in the application form.  The report showed that she had scored 7 for listening, 7 for reading, 7.5 for writing and 7 for speaking.

2. On 14 November 2012 the Minister’s department (“Department”) used the test reference number provided by the first applicant to check her claimed results against the IELTS online verification system.  The system indicated that the first applicant had scored 4.5 for listening, 4 for reading, 4.5 for writing and 4 for speaking.  On 23 November 2012 the delegate wrote to the first applicant seeking her comments on that information.  In response, the first applicant stated in a statutory declaration declared on 21 February 2013 that the results she had provided were the ones she had obtained from the testing authority and that she had not altered or forged them.

Review application

1. On 17 July 2013 the Tribunal wrote to the applicants seeking their comments on the information obtained by the Department from the IELTS online verification system.

2. In a response dated 31 July 2013, the applicants’ representatives submitted that:

   a)the first applicant had submitted her test results in good faith and believed that the results she had been provided by the test centre accurately represented her results;

   b)the first applicant had sought clarification from Navitas, the test centre where she had undertaken her test, and was concerned that there might be some confusion or error with the Department’s systems, with the online verification system or with the IELTS test centre, which had resulted in an incorrect report being provided to the Department;

   c)unless the Department could produce evidence to clarify the first applicant’s actual results, there was insufficient evidence for the Tribunal to conclude that the online results were her actual results;

   d)the first applicant had contacted Navitas but had no authority to contact IELTS to request her original test results.  The representatives asked the Tribunal to contact IELTS and obtain her accurate results as shown in their records; and

   e)the first applicant had booked a further IELTS test and the representatives asked the Tribunal to defer its decision until the results of that test had been obtained.

3. At a Tribunal hearing on 19 September 2013 the first applicant stated that if she had known that she had not achieved the correct scores, she would have re-done the test and would not have jeopardised her future in Australia by submitting fraudulent results.  She stated that she had contacted IELTS and Navitas several times but had been unable to get a response and asked the Tribunal to wait for the outcome of her enquiries to IELTS or make its own enquiries.  The first applicant also indicated that she had booked a further IELTS test which she would undertake on 26 October 2013 and provided confirmation of that booking.

4. The day after the Tribunal hearing the applicants’ representatives provided further submissions in which they advised that they were seeking further clarification from Navitas about the genuineness of the IELTS results received by the first applicant.  They also asked the Tribunal to contact the IELTS head office in the United Kingdom.  They referred to information on the IELTS website concerning the procedure applicants could undertake if they believed their test results were wrong and submitted that that could be seen as an admission by IELTS that there could be errors in the result recording process.  The applicants’ representatives referred to Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 and submitted that, given the conflict between the first applicant’s paper and online results, the Tribunal should wait for final clarification from IELTS before making its decision.

5. It was also submitted that the applicants had no past history of attempting fraud against Australia’s migration program and had been unaware that the test result form was fraudulent. 

The Tribunal’s decision and reasons

1. The Tribunal considered the applicants’ request that it obtain further information from IELTS or the test centre or wait for the outcome of their enquiries but it decided not to do so.  In reaching that conclusion the Tribunal found that, unlike the situation in Li’s case, in the first applicant’s case there were no obvious errors in the marking or the result recording processes.  For the following reasons the Tribunal was satisfied that the information provided through the IELTS online verification system accurately reflected the first applicant’s results:

   a)the Tribunal noted that the online verification system relied on a test reference number which was unique to each person and that the test reference number used to verify the first applicant’s results was the same number she had provided in her application.  It also noted that the test result document the first applicant had submitted to the Department and the document from the online verification system bore the same reference number and the same photograph.  The Tribunal found that the totality of those features suggested that the verification system results were accurate;

   b)the Tribunal did not accept that the procedure described on the IELTS website concerning the actions applicants could take if they suspected that their results were wrong was an admission by IELTS that there could be errors in the result recording process.  Rather, it found that the information suggested that if applicants felt that the assessment of their score might have been incorrect, they could apply for a re-mark, which was not an admission that the recording of scores might be incorrect; and

   c)the Tribunal did not accept the first applicant’s claim that, because she had been able to obtain a higher score (5 or 5.5) when applying for her student visa and had since then completed two years of study in Australia, the online verification results were wrong.  It found that the first applicant’s achievement of a better score in an earlier test did not mean that she must have received a higher score in January 2009.  It also found that her study in Australia was not necessarily indicative of her English language proficiency.  In relation to a submission made by the applicants’ representative at its hearing, that the first applicant’s English was very good at the time of the hearing, the Tribunal found that it had no capacity to assess her proficiency through a conversation and that in any event her proficiency at its hearing in September 2013 was not indicative of what it might have been in January 2009.  The Tribunal was therefore not satisfied that the first applicant’s results should have been substantially higher than those shown on the online verification system. 

2. The Tribunal found that the information on the online verification system was sufficiently probative for it to have a reasonable suspicion that the IELTS test results form provided by the applicant was a bogus document.  It found that the definition of bogus document did not require it to make a conclusive finding, only that it “reasonably” suspect that the document was bogus.  Having regard to the information on the online verification system and being satisfied that the records on that system were probative, the Tribunal “reasonably” suspected that the IELTS test form the first applicant had provided with her application was bogus because it purported to have been, but was not, issued in respect of her, because it was counterfeit or because it had been altered by a person who did not have the authority to do so.  It therefore found that the first applicant had given to the Minister, or had caused to be given to him, a bogus document in relation to her application and therefore that she did not meet PIC 4020(1). 

3. The Tribunal referred to the applicants’ claims that they had relied on the test results provided by the test centre but it found it inexplicable and unlikely that the test centre would have altered the test report and significantly increased the first applicant’s scores without her knowledge or involvement.  It noted that in any event PIC 4020 applied whether or not a document was provided knowingly or unwittingly.

4. The Tribunal went on to consider other issues which are not relevant to the present proceeding.

The proceeding in this Court

1. In the application commencing this proceeding the applicants alleged:

   1.The Tribunal fell into jurisdictional error in determining whether the First Applicant had breached the condition in item 4020 of Schedule 4 to the Migration Regulations 1994.

   Particulars

   (a)The Tribunal misunderstood the standard of evidence required to “reasonably suspect” that a document was a “bogus document” within the meaning of s 97 of the Migration Act 1958.

   (b)The Tribunal denied procedural fairness to the Applicant by failing to conduct a reasonable inquiry into the genuineness of a document provided by the Applicant.

Particular (a)

1. The applicants submitted that in concluding that it reasonably suspected that the first applicant’s IELTS test result document was bogus, in the sense defined by s.97 of the Act, the Tribunal erred in two respects. The first was said to be that the Tribunal had failed to apply the proper test of bogusness, as described in Trivedi v Minister for Immigration & Border Protection [2014] FCAFC 42 (“Trivedi appeal”), and the second was said to be that its finding that the document was bogus had been based on insufficient evidence.

Failure to apply correct test

1. It was held in the Trivedi appeal that a document will be bogus for the purposes of s.97 of the Act if it is false, in the sense of being deliberately – and not accidentally or innocently - incorrect, and that a document which meets that definition will be considered bogus even if the relevant visa applicant is not complicit in its falsity. The applicants submitted that the Tribunal had not considered whether the first applicant’s IELTS result document had been deliberately incorrect and thus had been incapable of lawfully having a suspicion which was reasonable in the circumstances that the document was bogus. The applicants argued that the error in the Tribunal’s approach could be seen in its reliance in para.21 of its reasons on Vyas v Minister for Immigration & Citizenship [2012] FMCA 92 and the first instance decision, Trivedi v Minister for Immigration & Citizenship [2013] FCCA 578 (“Trivedi first instance”) whose reasoning was not endorsed in the Trivedi appeal.

2. It is correct that the Tribunal did not articulate the test of what amounts to a bogus document by reference to the reasoning in the Trivedi appeal which post-dated its decision. Nevertheless, in reaching its conclusion it did in substance ask the question that was approved in the Trivedi appeal, namely was the result document deliberately incorrect?  The Tribunal’s discussion of the document’s provenance at paras.18-22 of its reasons reveals its implicit conclusion that that document was deliberately incorrect.  For instance, in para.21 it said:

   In the Tribunal’s view, it is inexplicable, and unlikely, that the test centre itself would choose to alter the test report form and significantly increase the applicant’s score without her knowledge or involvement.

3. Further, the Tribunal’s reference to the Vyas and Trivedi first instance decisions did not indicate that its approach to the issue was erroneous.  Its reference to those cases concerned their statements that PIC 4020 applies even if a bogus document is supplied “unwittingly” by a visa applicant.  That statement of the law was expressly approved in the Trivedi appeal at [27].

4. Consequently, I find that the Tribunal did not apply an incorrect test when determining whether the document was bogus.

Insufficiency of evidence

1. The applicants submitted that, in their case, the Tribunal had based its conclusion that the IELTS result document was bogus on nothing more than the fact that that document and the information produced as a result of its online enquiries differed whereas, in Trivedi, the Tribunal had, as the Full Court observed at [50], “other facts found by it” by which to determine whether the test result document in question was bogus.  In Trivedi the applicant had said, amongst other things, that an employee at the test centre had told her that he would “fix up the new result”. 

2. Although the applicants suggested by this argument that there was no evidence of “purposeful falsity” or deliberate incorrectness in the present case, what they were really saying was that the Tribunal could not conclude that a document was bogus unless there was direct evidence of the fact, as there had been in Trivedi. That is not correct. The Tribunal trusted the information which it found through its own researches, as it was entitled to, and did not believe that the test centre would inflate the first applicant’s results, which was a conclusion open to it. In such circumstances it was also reasonably open to the Tribunal to suspect, as it did, that the difference between the information it had found itself and the information in the document which the first applicant submitted was explained by the latter being bogus as that term is defined by s.97 of the Act.

3. I find that the finding in question was open to the Tribunal on the evidence.

Particular (b)

1. During the course of the review, the applicants invited the Tribunal on more than one occasion to undertake its own enquiries into the genuineness of the first applicant’s IELTS results document but the Tribunal declined to make further enquiries.  The applicants alleged that the genuineness of the document was central to their case, that the information in question was easily accessible by the Tribunal and that the results of such enquiries had a sufficient link to the outcome of the review that the Tribunal’s duty to review required the inquiry to be made.  The applicants submitted that, therefore, in not making any of the enquiries they had suggested, the Tribunal had constructively failed to exercise its jurisdiction:  Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 at 1129 [25].

2. The applicants did not demonstrate in this proceeding that the fact which they said could easily have been ascertained actually existed.  In such circumstances, they have not proved that the outcome of the review was in any way affected by the Tribunal’s decision to not make the inquiries suggested to it: SZIAI at 1129 [26]. Consequently, the Tribunal had no duty to enquire as alleged and a failure to exercise jurisdiction on that account has thus not been made out.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  11 September 2014