Patel v Minister for Immigration and Multicultural Affairs
[2024] FedCFamC2G 1187
•13 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Patel v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1187
File number(s): BRG 44 of 2024 Judgment of: JUDGE COULTHARD Date of judgment: 13 November 2024 Catchwords: MIGRATION – Skilled Nominated (Permanent) (class SN) (Subclass 190) visa – decision of the Administrative Appeals Tribunal – unreasonableness – requirements of Public Interest Criterion 4020 – bogus document – false or misleading information – compelling and compassionate circumstance – no jurisdictional error established – application dismissed. Legislation: Migration Act 1958 (Cth) ss 5(1), 476(1), 476(4)
Migration Regulations (Cth) cl 190.216 in Schedule 2
Public Interest Criterion 4020
Cases cited: Arora v Minister for Immigration and Border Protection [2016] 238 FCR153
Batra v Minister for Immigration and Citizenship [2013] 212 FCR 84
Kaur v Minister of Immigration and Border Protection [2017] 256 FCR 235
Trivedi v Minister for Immigration and Border Protection [2014] 220 FCR 169
Division: Division 2 General Federal Law Number of paragraphs: 51 Date of last submission/s: 4 November 2024 Date of hearing: 4 November 2024 Counsel for the First Applicant: The First Applicant appeared in person via Microsoft Teams Counsel for the Second and Third Applicants: Did not participate. Solicitor for the Respondents: Ms Allen appeared on behalf of the First Respondent. Submitting appearance for the Second Respondent, save as to costs. ORDERS
BRG 44 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: APRUV PRAVINKUMAR PATEL
First Applicant
KHUSHBUBEN APURV PATEL
Second Applicant
MIHAAN PRUV PATEL
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
13 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The name of the First Respondent be amended to “The Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The First and Second Applicants are to pay the First Respondent’s costs, fixed in the amount of $5900.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicants a Skilled Nominated (Permanent) (class SN) (subclass 190) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The first applicant (“the applicant”) is a citizen of India.
On 12 February 2019, the applicant applied for a Skilled Nominated (Permanent) (class SN) (subclass 190) visa (“the visa”) (Court Book (“CB”) 24-41). The applicant’s spouse and child (who are the second and third applicants respectively) were included in the application as members of the applicant’s family unit (CB 155; 161-166).
In his visa application, the applicant stated that he had worked as a Massage Therapist at Mocha Holistic Massage (“Mocha”) from April 2018 until December 2018 and at Zebra Artistic Salon (“Zebra”) from October 2015 until October 2017 (CB 33-34). The applicant annexed the following documents to his visa application in support of that stated employment (CB 107-143):
a) documentation for the 2015/2016 financial year showing two superannuation contributions on 2 December 2015 and 26 June 2016 from Zebro Enterprise Pty Ltd (CB 107-111);
b) PAYG payment summaries for the year ended 30 June 2016 and 30 June 2017 showing payments from Zebro Enterprise Pty Ltd (CB 134-137);
c) documentation for the 2016/2017 financial year showing 11 superannuation payments from Zebro Enterprise Pty Ltd (CB 112-121);
d) PAYG payment summary for 1 July 2017 to 31 October 2017 showing the payer listed as Zebro Enterprise Pty Ltd (CB 139);
e) documentation for the 2017/2018 financial year showing four superannuation contributions between 17 July 2017 and 14 November 2017 from Zebro Enterprise Pty Ltd (CB 122-132);
f) a work reference from Zebra Artistic Salon stating that the applicant worked as a part time Massage Therapist from 1 October 2015 to 31 October 2017. In that letter the salon was variously referred to as "Zebra Artistic Salon" and "Zebro Artistic Salon" (CB 133);
g) documentation for the 2017/2018 financial year indicating four superannuation contributions between 1 May 2018 and 21 June 2018 from the Trustee for Mocha Holistic Massage Centre (CB 122-132);
h) PAYG payment summary for the year ended 30 June 2018 from the Trustee for Mocha Holistic Massage Centre (CB 138);
i) pay advice documents dated between 29 November 2018 to 6 December 2018 from the Trustee for Mocha Holistic Massage Centre (CB 140-141); and
j) reference letter from Mocha Holistic Centre stating that the applicant was employed full time as a Massage Therapist from 23 April 2018 to 6 December 2018 (CB 142-143).
On 24 June 2021, the Department wrote to the applicant inviting him to comment on adverse information including that the applicant's income tax returns for the financial years 2016 to 2018 listed his main source of income during those periods as a delivery driver which the applicant had listed in the visa application as his occupation between November 2017 and April 2018 and that the income and company details for Zebro Enterprise Pty Ltd and the Trustee for Mocha Holistic Massage Centre were not identified in those income tax returns lodged with Australian Tax Office (CB 176-183). The applicant did not respond.
On 26 October 2021, the delegate refused to grant the applicant the visa on the basis that the applicant did not satisfy the requirements of cl 190.216 in Schedule 2 of the Migration Regulations 1994 (Cth) (“the Regulations”) because he had provided, or caused to be provided, a bogus document or false or misleading information in relation to the visa application (CB 197-207).
Application for review to the Administrative Appeals Tribunal
On 9 November 2021, the applicants applied to the Tribunal for review of the delegate’s decision (CB 209-216).
On 12 November 2021, the Tribunal acknowledged receipt of the application and advised the applicant that should he wish to provide material or written arguments for consideration that he should do so as soon as possible (CB 229-236).
On 20 October 2023, the Tribunal invited the applicants to attend a hearing on 28 November 2023 to give evidence and present arguments relating to the issues arising in their case, stating that it was unable to make a favourable decision based on the material before it, alone (CB 237-249).
On 6 November 2023, the Tribunal rescheduled the hearing, at the request of the applicant, to 7 December 2023 (CB 261-272).
On 1 December 2023, the applicant requested a second postponement of the hearing and provided a medical certificate. The applicant said that he would take 10 – 15 days to recover and that during that period he was in hospital for treatment (CB 273-276).
On 1 December 2023, the Tribunal responded asking for further clarification as the medical certificate did not outline that the applicant could not attend a video hearing and did not state that the applicant was hospitalised for that period (CB 277).
On 1 December 2023, the applicant responded by email confirming that he would attend the hearing on 7 December 2023 (CB 278-279).
On 6 December 2023, the applicant emailed the Tribunal stating that he was unable to attend the hearing on 7 December 2023 and requested that the Tribunal make a decision based on the information and documents that it had before it (CB 280-281).
On 6 December 2023, the Tribunal emailed the applicant notifying him that the hearing was cancelled, and that the member would proceed to a decision in the near future. The Tribunal further stated that any submissions that the applicant should wish to make be provided before this time (CB 282). The applicant did not provide any submissions.
On 5 January 2024, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (CB 289-298).
THE TRIBUNAL’S DECISION
The Tribunal identified that the issue on review was whether the applicant met the requirements of Public Interest Criterion 4020 (“PIC 4020”) as required by cl 190.216 of the Regulations which, relevantly, required that ([13]):
a) there is no evidence that the applicant has given, or caused to be given, to the Minister a bogus document or information that is false or misleading in a material particular in relation to the application for the visa: PIC 4020(1);
b) whether if PIC 4020(1) were not satisfied, there were compelling or compassionate circumstances for the waiver of those requirements justifying the grant of the visa: PIC 4020(4).
Providing a bogus document or information that is false or misleading in a material particular
The Tribunal first referred to the definitions of “bogus document” and the term “information that is false or misleading in a material particular” in s 5(1) of the Migration Act 1958 (Cth) (“the Act”) and PIC 4020(5) respectively. At ([15]), the Tribunal noted that in contrast to the definition of information that is false or misleading in a material particular the reference in the definition of a bogus document to a document that was obtained because of a “false or misleading” statement has no requirement that it be relevant to a criterion for the grant of a visa, and referred to the authorities of Arora v Minister for Immigration and Border Protection [2016] 238 FCR 153 and Batra v Minister for Immigration and Citizenship [2013] 212 FCR 84.
The Tribunal then went on to say that the requirement not to provide a bogus document or false or misleading information applies whether or not the document or information was provided by the applicant knowingly or unknowingly [16].
The Tribunal also stated at ([17]) that it was not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware that the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision. The Tribunal referred to the authority of Trivedi v Minister for Immigration and Border Protection [2014] 220 FCR 169.
The Tribunal then made the following findings by reference to the documents and information provided by the applicant in the visa application and the applicant’s income tax returns obtained by the Department:
a) The applicant’s income tax returns for the financial years ending on 30 June 2016, 2017 and 2018 listed the main source of his salary and wages as a Delivery Driver. This was inconsistent with the applicant’s employment details set out in the application which did not indicate that the applicant did any delivery driver work until November 2017. The applicant’s Form 80 of 4 February 2019 also indicated that the applicant did not commence work as a Delivery Driver until November 2017 ([21]).
b) A reference from the Director of Zebra Artistic Salon, stated that the applicant worked as a Massage Therapist on a part time basis for 20 hours per week from 1 October 2015 to 31 October 2017. In payment summaries covering 1 June 2015 to 30 June 2017 and 1 July 2017 to 31 October 2017, Zebra Artistic Salon is referred to as Zebro Enterprise Pty Ltd ([22]).
c) The applicant’s main source of income in 2018 was identified in the tax declarations as Delivery Driver, and none of the financial information or company details relating to the Trustee for Mocha Holistic Massage Centre were reported in the applicant’s income tax return declaration for the 2018 financial year ([24]).
d) Annual superannuation statements include payments by Zebro Pty Ltd into the applicant’s superannuation fund during the 2016, 2017 and 2018 financial years as well as payments by the Trustee for Mocha Holistic Massage Centre during 2018, however, these payments were not consistent with the applicant’s income tax returns ([25]).
e) The applicant’s Form 80 dated 4 February 2019 identified that he worked as a Delivery Driver with Navi & KK Pty Ltd from November 2017 until June 2018 and also worked as a factory worker for Rain Harvesting from July 2018 until January 2019. These positions overlapped the time the Director of Mocha Holistic Centre, in the reference dated 6 December 2018, supported the applicant’s claim that he worked as a full-time Massage Therapist at Mocha Holistic Centre from 23 April 2018 until 22 December 2018 ([26]).
The Tribunal noted that information before it supporting that the applicant worked at Zebra Artistic Salon as a Massage Therapist from October 2015 to October 2017 formed part of the VetAssess Skilled Migration Assessment and for their Points Test Advice. A skills assessment and points test are mandatory criteria in order to be granted the visa. ([27]).
The Tribunal stated that the applicant had not provided information to reasonably satisfy the Tribunal that he worked as a Massage Therapist with either Zebra or Mocha during the period claimed [28]. In the absence of further information from the applicant, the Tribunal went on to say that it favoured the taxation information over the other the evidence provided with the visa application. The Tribunal also said that it had not been provided with any explanation of the inconsistent employment information provided in the visa application compared with the Form 80; in particular, the dates the applicant worked as a delivery driver, and the employment as a factory worker which was only mentioned in the Form 80 ([29]).
The Tribunal found that there were unexplained inconsistencies in the evidence and that it was reasonable for the Tribunal to suspect that the reference and unsigned payment summaries provided by the applicant in relation to Zebra were documents that purport to have been, but were not, issued in respect of the applicant and were therefore, “bogus documents” as defined by s 5(1) of the Act ([30]).
The Tribunal said that it was satisfied that the claims of employment with both Zebra and Mocha were “false or misleading in a material particular” as defined in PIC 4020(5) because it was false or misleading at the time it was given and was relevant to a criteria the Minister may consider when making a decision on the visa application because relevant employment history is used in determining points and qualifications for occupations ([31]; [32]).
Therefore, the Tribunal found the applicant did not meet PIC 4020(1) ([34]).
Waiver of PIC 4020(1) or (2)
The Tribunal noted that the requirements of PIC 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, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa. The Tribunal noted at [35] that the decision maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances, and referred to the authority Kaur v Minister of Immigration and Border Protection [2017] 256 FCR 235.
The Tribunal was not satisfied that the requirements should be waived, as the applicant had not identified that they were seeking the waiver and had provided no information in support of the requirements of PIC 4020(4) and said that it could not identify anything on the file to justify the granting of a waiver ([37] - [39]).
Therefore, the Tribunal concluded that the requirement of PIC 4020(1) should not be waived ([40]).
The Tribunal concluded that the applicant did not satisfy PIC 4020 for the purposes of
cl 190.216 in Schedule 2 of the Regulations ([41]-[42]) and affirmed the delegate’s decision not to grant the applicant a Skilled Nominated (Permanent) (class SN) (subclass 190) visa ([43]).
PROCEEDING IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by application filed on 6 February 2024.The applicants also filed an Affidavit affirmed by the applicant on 6 February 2024. The Affidavit recites the procedural steps before the delegate and the Tribunal, repeats the grounds of judicial review and annexes the Tribunal’s decision.
On 14 August 2024, procedural orders were made permitting the applicants to file and serve an Amended Application with proper particulars and any additional evidence on which they seek to rely and requiring the applicants to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely upon. Orders were also made as to the preparation, filing, and service of a Court Book.
The applicant appeared in person via Microsoft Teams unrepresented. He was assisted by an Interpreter in the Gujrati and English languages.
The material before the Court included the application, the applicant’s Affidavit, the Response, the first respondent’s written submissions and the Court Book.
The Court confirmed that the applicant had a copy of the material that was before it and asked the applicant whether he required the first respondent’s submissions to be interpreted to him. The applicant responded that he did not require the interpretation of the first respondent’s submissions in the Gujrati language.
CONSIDERATION
For the applicants to be successful they must satisfy the Court that the Tribunal’s decision is affected by material jurisdictional error.
As the applicant was unrepresented, the Court explained that the Court’s role is to determine whether the Tribunal’s decision is affected by jurisdictional error and that accordingly, the Court cannot make a decision on the merits of the applicant’s visa application. It was explained that the Court’s task is instead to determine whether the Tribunal made a legal or procedural error.
The applicants did not file an amended application.
The grounds of review set out in the application are (without alteration):
1. The Tribunal failed to act according to substantial justice and merits of the case because the Department was unreasonable in concluding that I do not meet the requirements under PIC 4020 based on some inconsistent documents that happened because I am not good with keeping the dates and maintaining proper records of my employment and other details.
2. There are compelling and compassionate circumstances that exists in my case and so the court is requested to exercise its discretion to remit the file back to the tribunal for the reconsideration.
3. The Tribunal found that there are unexplained inconsistencies in evidence and that it is reasonable for the Tribunal to suspect that the reference and unsigned payment summaries provided by me in relation to Zebra Artistic Salon are documents that purport to have been, but were not, issued in respect of the applicant. The inference that these documents are 'bogus document' as defined in s 5(1) is based on mere assumptions and not facts.
4. The Tribunal concluded that I have given, or caused to be given a bogus document, or information that is false or misleading in material particular but there are no facts to substantiate this claim and these allegations are based on mere circumstantial.
5. My family has lived in Australia for many years, and we have contributed directly and indirectly to the Australian communities and so the court is pleaded to show leniency and mercy on my family so that we can live in harmony in Australia.
The applicants did not file written submissions. The applicant was afforded the opportunity to make oral submissions as to the grounds of review. The applicant said that he did not have anything he wished to say. After the first respondent’s Solicitor had made oral submissions, the Court gave the applicant the opportunity to make submissions in reply or to say anything he might wish to say in support of his application for judicial review. The applicant said that he did not have anything to say.
Grounds one, three and four: Tribunal’s finding that the applicant did not meet the requirements of PIC 4020 was unreasonable, not based on facts but on mere assumptions and circumstantial evidence
In ground one, the applicants assert that the Department was unreasonable in concluding that the applicant did not meet the requirements of PIC 4020. As the first respondent correctly submitted in its written submissions (FRS [21]), to the extent that the applicants seek judicial review of the delegate’s decision, the Court has no jurisdiction to do so (s 476(4) of the Act).
The Court has also considered whether the Tribunal’s decision was legally unreasonable in concluding that the applicant did not meet the requirements of PIC 4020.
The Court agrees with the submissions of the first respondent (FRS [24]) that the Tribunal’s reasons for decision ([15] – [17]) correctly identified by reference to the decision of the Full Court of the Federal Court in Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 the approach to be taken in identifying whether an applicant had given, or caused to be given to the Minister, a bogus document or information that is false or misleading in a material particular in relation to a visa application. The Tribunal then went on to apply that approach in its review of the documents and information submitted with the visa application and the information that the Department had considered. There is nothing in the Tribunal’s decision in preferring the information in the applicant’s income tax returns which demonstrates that the Tribunal acted in a way which was legally unreasonable in coming to the conclusion that the reference and unsigned payment summaries provided in relation to Zebra were bogus documents and that the claims of employment with Zebra and Mocha were false or misleading in a material particular, that is, because the employment history was used in determining points and qualifications for occupations. It was a conclusion that was reasonably open to the Tribunal on the material before it.
That analysis also disposes of the applicant’s complaint in grounds three and four. The Tribunal’s decision was clearly based on a proper review of the documents and information before it as is demonstrated in the Tribunal’s review at paragraphs [20] to [31] of its reasons for decision.
The applicant did not respond to the letter from the Department. The applicant asked the Tribunal to determine his application for review on the information and documents that it had before it. The applicant did not provide any documents or submissions to the Tribunal. That the applicant now says that the Court should consider his explanation that the inconsistencies ‘happened because I am not good with keeping the dates and maintaining proper records of my employment and other details’ is a request for the Court to engage in impermissible merits review.
No jurisdictional error is established on either grounds one, three or four.
Grounds two and five: Compelling and compassionate circumstances and contributions to the Australian community
In ground two, the applicant pleaded that there are compelling and compassionate circumstances that exist in his case and asks the Court to remit the matter to the Tribunal for reconsideration. Relatedly, in ground five, the applicant asks the Court to show leniency because his family has lived in Australia for many years and has contributed directly and indirectly to the Australian communities.
After determining that PIC 4020(1) was engaged, the Tribunal engaged in the two step inquiry identified in Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 which requires the decision maker to first identify whether there were any compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interest of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen and secondly, in the event of such a finding, whether to waive the requirement in PIC 4020(1) having regard to those circumstances ([35]). The Tribunal correctly set out what is meant by the expressions ‘compelling circumstances’ and ‘compassionate and compelling circumstances’ ([36]).
The applicant made no submission to the Tribunal in support of a waiver. The Tribunal said that it could not find anything on the file to justify the grant of a waiver. The applicant does not identify any material that was before the Tribunal that would be relevant to a consideration of waiver. Accordingly, the Tribunal’s decision was reasonably open to it.
No jurisdictional error is established on either ground two or ground five.
CONCLUSION
Having found no jurisdictional error, the application is dismissed.
I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 13 November 2024
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