Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 828
•28 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Patel v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 828
File number(s): SYG 2490 of 2017 Judgment of: JUDGE HUMPHREYS Date of judgment: 28 April 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – Subclass 189 Skilled – Independent visa – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth), ss 107, 476(2)(a)
Migration Regulations 1994 (Cth), r 2.41
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Coal and Allied Operations Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration and Citizenship v SZNVW and Anor (2010) 183 FCR 575
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80
VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350
Number of paragraphs: 47 Date of last submission/s: 12 April 2021 Date of hearing: 12 April 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Solicitor for the Respondents: Ms Pieri appeared on behalf of the First Respondent. ORDERS
SYG 2490 of 2017 BETWEEN: ASHOKKUMAR VISHNUBHAI PATEL
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
28 APRIL 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
2.The application is dismissed.
3.The Applicant to pay the First Respondent’s costs fixed in the amount of $5600.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a citizen of India. On 30 April 2015, the applicant was granted a Subclass 189 Skilled - Independent visa. When making the application for the visa, the applicant stated that he had undertaken an English language test on 10 January 2015 and was graded as “proficient”.
A delegate of the Minister for Immigration, (“the delegate”), recorded in a decision to cancel the applicant’s visa that in October 2016, that the Department of Immigration and Border Protection (“the Department”) received information that the test taker score with the reference number given by the applicant was invalid and the scores had been cancelled. The delegate determined the test taker score report to be a ‘bogus’ document.
The delegate wrote to the applicant providing particulars about the above alleged non-compliance by providing a bogus document. The applicant provided evidence that he had received from the test provider that his scores were delayed due to an administrative review, but that on 4 February 2015 he was advised that the review was complete and his scores were available. The applicant provided evidence of his test, on 10 January 2015. The delegate considered this material but determined to cancel the applicant’s visa.
The applicant sought merits review at the Administrative Appeal’s Tribunal (“the Tribunal”). In a decision dated 3 July 2017, The Tribunal affirmed the delegate’s decision to cancel the applicant’s visa.
The applicant now seeks judicial review of the Tribunal Decision.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
After setting out the relevant background and law, the Tribunal noted that the first issue it was required to determine, was whether or not there was non-compliance in the way that the applicant filled in his application, in that, he had provided a bogus document to the Department, being the test score report.
The Tribunal noted at paragraph 14 of its decision, that the delegate stated in the s 107 of the Migration Act 1958 (Cth) (“the Act”) notice provided to the applicant, that on 26 October 2016, the English language testing body had advised that the test report form with the applicant’s name and reference number was invalid and his scores are been cancelled. The delegate concluded that, by providing the particulars that he had passed his English language test was in fact incorrect as the test score had been cancelled.
At paragraph 15 of its decision, the Tribunal noted that there was correspondence exchanged between the Department and Educational Testing Service (“ETS”) in October 2016 which resulted in a test security analyst from ETS writing to the applicant. That letter noted that an analysis of the scores of the applicant in his 10 January 2015 test, indicated that there was substantial agreement between his answers on one or more scored sections of the test and those of other test takers. This suggested that the applicant may have had unauthorised access to the test forms administered on 10 January 2015 and/or the answer keys for the test form.
At paragraph 16 of its decision, the Tribunal noted that there was also a letter from ETS addressed to the delegate dated 26 October 2016 advising that, after conducting a review, ETS had determined that there was sufficient evidence to conclude that the applicant’s scores for the 10 January 2015 administration of the English language test were invalid and that the scores had therefore been cancelled.
At paragraph 17 of the Tribunal’s decision, the applicant denied having received any email indicating that his score had been cancelled. The applicant also provided information that he had completed a Masters in Information Systems at the University of Ballarat in Australia from July 2007 to September 2009, after which he returned to India.
The applicant gave evidence as to the circumstances under which he took the test. The applicant stated that a friend, with whom he worked, told him he was travelling to another city to undertake the English test. The friend asked the applicant if he wanted to go with him. The applicant and his friend decided to go to and sit the test on the same day and bought train tickets to the other city. The applicant knew others, who are also sitting the test on the same day, at the same venue, but he could not provide their names. The applicant provided the Tribunal with a copy of his train ticket to the other city.
The Tribunal noted that the distance from his home town to the city where he undertook the test was 1812 km and the trip took over 24 hours. The Tribunal asked the applicant why he had travelled so far to undertake an English language test, given that that there were opportunities for him to undertake the test in his home town. The applicant replied that he and his friend thought that they could sight see along the way. The applicant denied any knowledge about any cheating.
At paragraph 20 of its decision, the Tribunal noted that it gave the applicant an opportunity to comment on the information from the security analyst that there was sufficient evidence to conclude that his scores for the 10 January 2015 administration of the English language test were invalid.
At paragraph 21 of its decision, the Tribunal asked the applicant about other English-language tests he had undertaken. The applicant admitted sitting three English-language tests, one in 2006 and two in 2009. The applicant remembered that he needed the score 6 or more in the test, in order to apply for a Subclass 485 visa. The applicant initially lodged an application but withdrew it because he could not achieve the required level of English language proficiency. The applicant confirmed he did not have adequate English for a temporary visa.
The Tribunal records at paragraph 21 of its decision, that it raised its concerns that the applicant, in the past, was unable to achieve the scores required for competent English, yet he claimed in his visa application that he had proficient English. The applicant acknowledged that he had not achieved competent English in 2009 but that was a long time ago. The Tribunal questioned the applicant on why he would travel nearly 2000 km to sit an English-language test when he had not sat a test for 6 years, and on the last occasions he had not achieved sufficient scores for competent English. The applicant claimed that he been preparing for the test while working in his home town.
At paragraph 22 of its decision, the Tribunal was not satisfied that the applicant had proficient English as he had claimed in his visa application. At paragraph 23 of its decision, the Tribunal was satisfied that a security analysis of his scores had properly concluded that he may have had unauthorised access to the test forms administered on the day of his test and/or the answer keys for the test form. The Tribunal was satisfied that the applicant was aware that his test results were invalid when he applied for the visa and that he intentionally misled the Department by providing the document in his visa application as evidence that he had legitimately achieved those scores and stating that he was proficient in English.
These findings were supported by the applicant’s highly unpersuasive explanation as to why he would travel nearly 2000 km to undertake an English language test in another town when he had opportunities to undertake the relevant English language test in his own town. The Tribunal was satisfied that the applicant had not completed his visa application form correctly. Having found that grounds existed for the visa to be cancelled, the Tribunal then considered whether it should exercise its discretion to cancel the visa. These included the prescribed circumstances set out in r 2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”). The Tribunal also considered relevant policy set out in the Department’s procedures advice manual, in relation to “General Visa Cancellation Powers”.
At paragraph 32 of its decision, the Tribunal concluded that the applicant did not have proficient English as he had claimed in his visa application. The Tribunal was not satisfied that the applicant had been truthful when he declared in his visa application that he had provided correct and complete information in every detail. The Tribunal formed the view that the applicant was aware that his test results were invalid when he applied for the visa and that he intentionally misled the Department in stating this.
The Tribunal noted at paragraph 33 of its decision, that it formed the view that the test taker score report did not meet the definition of a “bogus document”, in part, because it was the Tribunal had not seen evidence that the applicant was required to declare that he was not cheating, in taking the test. The Tribunal was satisfied however, that the document that the applicant relied upon, was not reflective to give his actual English language skills. The Tribunal was of the view that the decision to grant him his visa was based in part on his claim to having proficient English. The Tribunal is satisfied that the applicant travelled to a town some 2000 km away because he had unauthorised access to the test forms administered on the day and had all answers for the test form.
Paragraph 36 onwards of the Tribunal’s decision, considers the applicant’s current circumstances. The Tribunal noted that while the applicant had educational qualifications, in Information Technology, he was currently working in an unskilled job in a supermarket. The Tribunal also considered that there were no other instances of non-compliance known to the Department, that some time had elapsed since the grant of his visa, that there was no evidence that he had breached any law in Australia. There are no other circumstances that would impact one way or the other on the applicant’s situation should his visa be cancelled.
While satisfied that the cancellation of his visa may cause some stress, the Tribunal was not satisfied of the medical evidence before it that the applicant had a depressive illness which would be exacerbated by his visa cancellation. Overall, the Tribunal concluded that the applicant’s visa should be cancelled after considering all relevant factors including those matters in r 2.41 of the Regulations.
GROUNDS OF JUDICIAL REVIEW
The applicant’s grounds of judicial review are set out in an Initiating Application filed with the Court on 4 August 2017. They are handwritten and somewhat difficult to read and are reproduced verbatim:
Ground One
I have not provided to DIBP any “bogus documents” or incorrect information in my ‘189 application’. You can laborate that document and verified.
*Note: the applicant was asked what ‘laborate’ meant and he indicated that you could verify the document as to whether it is genuine or not.
Ground Two
In Tribunal final decision they stated on page 8, at ‘32’ paragraph, it has formed the view he was aware that the test results were invalid when he applied for the visa and he intentionally misled the DIBP. My test result is not invalid and I have not misled department. This is totally wrong allegation on me.
Ground Three
Tribunal has “no evidence” to show me on which base they cancelled my Visa. I told them show me ‘video recording of test date’. But they don’t have any evidence but they keep writing and explaining me theoretically.
Ground Four
Tribunal says you had unauthorised access to test forms and answer keys for the test form.
Ground Five
Why Tribunal raised its concerns regarding the distance I travelled to undertake my test.
Ground Six
I would like to keep telling give me evidence whether I provided bogus documents or information, unauthorised access answer keys.
Ground Seven
There is communication between ETS TOEFL IBT and DIBP regarding evidence then why not showing me any evidence.
Ground Eight
Ground eight is not properly reproduced on the Court File as it is below the margin but includes “many documents support my application’.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. Somewhat surprisingly, the applicant requested the assistance of an Interpreter. During the course of the hearing the applicant mostly did not use the Interpreter.
Prior to the hearing commencing, the Court ensured that the applicant was in possession of the relevant Court Books and that a copy of the first respondent’s submissions has been interpreted to him. The Court also ensured that the applicant had access to a pen and paper so that he could take notes during the course of the hearing should he so wish to.
At the commencement of the hearing, the Court explained that it was undertaking judicial review and not merits review. The Court also explained the difference between the two types of review. The Court explained the procedure by which the hearing would be undertaken.
Despite Court orders, no written submissions were provided by the applicant to expand on the grounds of judicial review outlined above. On 29 November 2017, the applicant filed an Affidavit annexing a document repeating parts of the grounds of the application and a declaration of Dhimantkumar Patel which post-dates the Tribunal decision. On 25 January 2018, the applicant filed a further Affidavit with the Court which attaches documents which were already before the Court by way of the Court Book filed on 25 September 2017.
The applicant told the Court that his English language teat results were still on the ETS website and showed him passing the test. The applicant stated that he did not do anything wrong and is unable to understand why his visa was cancelled. The applicant asked the Court to grant him a further opportunity to appear before the Tribunal to present his case
At the completion of the first respondent’s oral submissions, the applicant was asked if he wished to stay anything further in reply. The applicant stated that if it was alleged that he had cheated, why had the ETS not produced video evidence of him sitting the test and cheating.
THE FIRST RESPONDENT’S SUBMISSIONS
In relation to grounds one and two, the legal representative for the first respondent submitted that these grounds merely express disagreement with the Tribunal’s factual findings and therefore seek impermissible merits review. The grounds are incapable of establishing a jurisdictional error by the Tribunal.
Ground four merely reiterates that the Tribunal’s finding and does not articulate any error on the part of the Tribunal.
Ground three alleges that the Tribunal had no evidence to show on what basis they cancelled the visa. Ground six also asked the Tribunal for evidence on whether the applicant provided bogus documents. The the legal representative for the first respondent submits that there is no substance to any contention that the Tribunal’s findings were made with no evidence. For such a grounds to succeed, the applicant must show that there was no evidence “at all” upon which the decision was based: (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [356] per Mason CJ). Such a grounds will not succeed even if the evidence is ‘slight’: (see VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19]).
In this case, the Tribunal’s findings were plainly open, based on the applicant’s own evidence and the evidence of the ETS. Ground three further alleges that the applicant asked the Tribunal to show him evidence of the “video recording of the test date”. The legal representative for the first respondent submitted that it is for the applicant put on evidence in relation to the dispositive issues under review which they rely upon in support of the application: (see Minister for Immigration and Citizenship v SZNVW and Anor (2010) 183 FCR 575).
Ground five appears to question why the Tribunal raised concerns about the distance that the applicant travelled to take the test. The legal representative for the first respondent submitted that the Tribunal is open to ask questions that it considers relevant to the matter under review, given the inquisitorial nature of the Tribunal’s proceedings: (see: SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [24]).
The distance that the applicant travelled was 2000 km when there were opportunities to undertake English tests in his home town. The Tribunal found that this evidence raised significant concerns that there had been unauthorised access to the test forms. The legal representative for the first respondent submitted that the ground cannot succeed.
Ground seven alleges that there was communication between the ETS and the Department regarding evidence, but this evidence was not shown. By letter dated 8 June 2017, the applicant was invited to comment on or respond to the information provided by ETS to the applicant and the first respondent. The substance of that information was also contained in the delegate’s decision, which was provided to the Tribunal with the application for review. The applicant also attended hearings before the Tribunal on 1 May 2017 and 13 June 2017 where the dispositive issues were discussed. No jurisdictional error arises.
Ground eight does not articulate any jurisdictional error on the part of the Tribunal. To the extent that the grounds seek to challenge the delegate’s finding that the applicant did not comply with s 103 of the Act, the Court does not have jurisdiction to review that decision. Moreover, in conducting a de novo review, the Tribunal’s decision cures any defects and irregularities in the delegate’s decision and processes: (see: Coal and Allied Operations Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [13]).
As to the matters raised by the applicant from the bar table, these only went to the merits of the Tribunal decision and did not raise any jurisdictional error.
CONSIDERATION
Grounds one and two simply disagree with the Tribunal’s findings. The complaints, such as they are simply invite merits review, which this Court cannot undertake: (see: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54]).
Ground three asserts firstly, that there was ‘no evidence’, and that the Tribunal was required to show the applicant the evidence on which base they cancelled his visa. The function of the Tribunal is to respond to the case that is advanced by the applicant: (see: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [405]). Contrary to the applicant’s claims, there was considerable evidence before the Tribunal that the applicant had not been honest when he claimed to have proficient English. This included the applicant’s own evidence and that of the ETS analysis. Further, the Tribunal did not find that the applicant provided a bogus document to support his application, rather, he had not been truthful in his application. Ground three reveals no jurisdictional error.
Ground four does not allege any jurisdictional error. It is a simple statement, reiterating a conclusion of the Tribunal.
Ground five raises a question as to why the Tribunal raised concerns as to the applicant’s
2000 km travel to undertake his English language test. This does not constitute a ground of jurisdictional review. Clearly, the applicant’s credit was in issue as to why he would travel 2000 km to undertake a test in the English language when tests could be undertaken in his home town. This raised a legitimate question as to the motive of the applicant to undertake such travel. The Tribunal is inquisitorial in nature. It is not required to accept uncritically any and all claims made by an applicant: (see: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at [451]). There was nothing improper in the Tribunal questioning the applicant as to his travel.
Ground six states that the applicant would like to keep telling his evidence as to whether he provided bogus documents as information, or had unauthorised access answer keys. This ground, is difficult to understand and appears to question the decision of the Tribunal in relation to the provision of bogus documents. The grounds proceeds on a misconception of the factual findings of the Tribunal. The Tribunal found that it could not be satisfied that the applicant provided a bogus document as no declaration was required by the applicant in taking the test that he was not cheating. The Tribunal however went on to find that the applicant provided false information in his visa application in that he stated that he was proficient in the English language which was not correct. The Tribunal placed no weight on the initial score given in the test that he was proficient. This was a conclusion that was open to the Tribunal based on all of the evidence before it. The reasons given by the Tribunal set this out in some detail. Ground six raises no jurisdictional error.
Ground seven appears to allege procedural unfairness in that the applicant contends that there was communication between the Department and ETS regarding the applicant’s score in his English proficiency test, but that the applicant was not shown this communication. The Tribunal noted, that correspondence was exchanged between the Department and the applicant that clearly put him on notice that his test scores had been cancelled on the basis that he may have had unauthorised access to the test forms administered on the date of his test and/or the answer keys for the test. In response to this communication, the applicant provided a statutory declaration. The applicant denied any misconduct on his part in relation to the English language test.
Further, as noted at paragraph 20 of the decision record, the Tribunal also gave the applicant, pursuant to s 359A of the Act an opportunity to comment on or respond to information on the Department’s file regarding his ETS assessment and the conclusion that he had unauthorised access to the test forms and/or the answer keys. The applicant responded to that invitation and provided such information as he felt appropriate. In these circumstances, the Court is satisfied that the applicant was clearly put on notice both at a pre-departmental decision level stage, and at the Tribunal hearing as to the issue in relation to the test score. There was no lack of procedural fairness as the applicant was clearly on notice that this was an issue in contention at the Tribunal hearing.
Ground eight does not raise any jurisdictional error and merely states that the applicant has documents to support his contentions. The Court notes to the extent that the applicant seeks to challenge the delegate’s findings, the Court has no jurisdiction to review that decision pursuant to s 476(2)(a) of the Act. None of the applicant’s grounds of jurisdictional review reveal error on the part of the Tribunal to what the relief sought.
As the applicant was unrepresented, the Court has perused the Tribunal decision record but is unable to find any unarticulated jurisdictional error.
CONCLUSION
Accordingly, the application is dismissed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 28 April 2021
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