Peraj v Minister for Immigration - [2020] FCCA 712

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERAJ v MINISTER FOR IMMIGRATION & ANOR

[2020] FCCA 712

Catchwords:
MIGRATION – Judicial Review - decision of Administrative Appeals Tribunal – application for Subclass 500 Student visa – whether the criterion in the migration regulations Public Interest Criterion 4020 is met – where information given about the applicant’s employment in Italy was an essential or necessary element of deciding whether he was a genuine temporary entrant – where the Tribunal found applicant provided information that is false, misleading or implausible – where this was a conclusion open to the Tribunal in the circumstances – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) reg 1.03.

Cases cited:

Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169

Applicant:

FERDINAND PERAJ

First Respondent:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

ADG 365 of 2018

Judgment of:

Judge Young

Hearing date:

16 March 2020

Date of Last Submission:

16 March 2020

Delivered at:

Darwin

Delivered on:

16 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr Simmons

Solicitors for the Applicant:

MSM Legal

Counsel for the First Respondent:

Mr Cummings

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application is dismissed.
The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.
The applicant pay the first respondent’s costs fixed in the amount of $5000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 365 of 2018

FERDINAND PERAJ

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 26 October 2018 which affirmed a decision of the Minister’s delegate made on 3 October 2017 to refuse the applicant a Student (Temporary) (Class TU) Subclass 500 Visa.
The Tribunal was concerned in the hearing to identify whether or not the criterion in the Migration Regulations called Public Interest Criterion 4020, PIC 4020 for short, was met. That criterion says as follows:
“To satisfy this criterion, there is no evidence before the Minister, or in this case the Tribunal, that the applicant has given or caused to be given a bogus document or information that is false or misleading in a material particular in relation to the application for the visa.”
In the applicant’s application for the student visa, he made a number of statements, and while I do not intend to be exhaustive, there is a statement under the heading of Genuine Temporary Entrant, where the applicant says, inter alia, that:
After 19 years of work in April, I proposed to my current employer a break: I wanted to travel and explore Australia as a tourist, to take my time to study English. At the beginning I left with a tourist visa. I visited a lot of cities, in particular Adelaide, which I loved the most. Staying here made me realise how important this experience is for me. For this reason I asked for an extension from my work break to my employer, finalised to study English and get an English certificate. Since the company I work for is expanding abroad, my employer accepted my proposal, in exchange I have to reach at least an upper intermediate level of English. My currently (sic) job position in the company is as a workman coordinator …
Similarly, later in the document he is asked for employment history details. He states he is employed in the present tense and gives the name of his employer as Dimocart Italia. Later in the document he is asked about future employment and the question is:
“Has the applicant been offered a job at the completion of their course?”
The applicant answered “yes” and said that the offer of employment was from Dimocart Italia.
On 23 August 2017, the Department wrote what is sometimes called an adverse information letter to the applicant. It said in the letter that a departmental officer from the Australian High Commission in London had conducted checks to verify the applicant’s claims of employment. The letter recounted that the departmental officer had telephoned Dimocart Italia and spoken to an employee. The subsequent information revealed that employee was Mr Di Molfetta.
Mr Di Molfetta is recorded as saying:
“Mr Ferdinand Peraj is not currently employed by Dimocart Italia. The referee confirmed the length of employment as being about 10 years, until Mr Peraj left on recreational leave. The referee stated that Mr Peraj went on holiday using his approved leave for three weeks but he did not state where he was going. The referee declared that, being an Albanian national, the referee thought that Mr Peraj would have just gone back to his home country to visit his family. The referee stated that Mr Peraj contacted the company to advise that he was not going to return from Australia. The referee asked Mr Peraj to submit his resignation but Mr Peraj stated he could not due to his current location and as such the company made Mr Peraj redundant.”
And:
“The referee confirmed that the company is planning expansion, but stated there was no proposal to Mr Peraj in relation to this.”
And further:
“Finally, the referee stated that Mr Peraj was not offered a promotion of any type.”
After that letter was sent to the applicant, the applicant provided two letters, which were translated. One was from a Mr Pieve who was employed, according to the letterhead, at Dimocart and, in English, the letter said:
“This is to certify that the company Dimocart … its willingness to continue their collaboration which ended in 2000. The studies carried out in Australia will be useful for Mr Peraj Ferdinand to improve his knowledge of the English language in order to advance his professional career in view of an international expansion of the company.”
It is an agreed position that the translation, which refers to the collaboration “which ended in 2000” is an erroneous translation and it should say “since the end of 2000”.
At the same time, a letter was provided from Mr Di Molfetta. An English translation reads as follows:
“I, the undersigned, Di Molfetta Gianluigi, legal representative of Dimocart, other than confirming the absolute trust in Mr Ferdinand Peraj’s abilities, I hereby confirm that the conversation I had with the Immigration department occurred during a particularly complicated and stressful day, following some events. I apologise if some of my answers were inaccurate, and I am at your disposal for further information.”
Those letters were before the delegate. After the delegate’s refusal of the visa the applicant sought a review in the Tribunal. At that stage he provided a further letter from Mr Di Molfetta in the form of a statement. Without reading the entirety of that letter, it said, starting at paragraph 3:
3. In August 2017, I received a call from the immigration department relating to Ferdinand Peraj.
4. Without knowing that my answers could jeopardise Ferdinand’s student visa application, I answered the officer’s questions in an incriminating manner.
5. When I received the call from the immigration department, I was under a stressful moment. The call interrupted my train of thought. I was angry and wanted to end the call as soon as I could.
6. I did not wish to interrupt my train of thought and did not think twice before I answered the officer from the immigration department. Therefore, when the officer asked me if Ferdinand had an open job offer from Dimocart, I said no.
7. I now remember that Ferdinand and the manager of Dimocart did have a conversation on advancing his studies in Australia. In view of an international expansion of the company, the management made a verbal officer to Ferdinand indicating that he could return to Dimocart upon completion of his studies in Australia.”
The reasons of the Tribunal recount that history. The Tribunal had regard to the claims that Mr Peraj made and also had regard to the interview conducted between the departmental officer and Mr Di Molfetta. The Tribunal also had regard to the subsequent letters and particularly the statement from Mr Di Molfetta prepared for the Tribunal, which I have just referred to. The Tribunal member was of the view that the conversation between the departmental officer and Mr Di Molfetta was:
“…a substantial interview with the departmental officer, in which he” – that is Mr Di Molfetta – “provided detailed answers to questions, and from which there was no indication that he was keen to complete the interview.”
The Tribunal found that it was implausible Mr Di Molfetta’s most recent statement, the one prepared for use before the Tribunal, was truthful. In particular, it highlighted that Mr Di Molfetta had apparently given clear and unequivocal answers to the departmental officer, which in material particulars, contradicted the claims of the applicant. That is, that he was in current employment, that he had been offered a job and there was a plan for him to return to work with that employer.
Mr Di Molfetta’s initial interview contradicted each of those claims. In my view, the Tribunal was justified in finding Mr Di Molfetta’s subsequent statement, a statement made after he was apparently aware of the consequences for Mr Peraj of his statement, was implausible. It contradicted the earlier statement Mr Di Molfetta made. Mr Di Molfetta did not, in terms, deny the record before the Tribunal of what he had said to the departmental officer. He simply said that he made errors and he that he did not remember a relevant conversation where the management, he said, had offered a job to the applicant.
In the circumstances it is not surprising that the Tribunal found Mr Di Molfetta’s subsequent explanation to be implausible. It barely explains how such an error could have been made. The explanation offered of impatience, anger and forgetfulness, does not appear to be compelling. Of course, I am not a finder of fact but I say that because in my view the Tribunal’s reasoning on that was entirely open.
The Tribunal concluded that the applicant had provided information that is false or misleading. In particular that is a reference to the information that he was currently employed, he had been offered a job and he would return to employment with that employer. Even though, perhaps taken literally those concepts in themselves do not sit together easily. Nevertheless, the information was material because it was an essential or necessary element of deciding whether the applicant was a genuine temporary entrant. Whether or not he had a job in Italy was highly relevant to the question of whether or not he was likely to return once his student visa had expired.
The single ground of review, in three parts, is as follows:
The decision of the Administrative Appeals Tribunal was affected by jurisdictional error in that the Administrative Appeals Tribunal member failed to apply or misapplied public interest criterion 4020:
(a)    The AAT found that I had provided evidence that is false or misleading. However, the member failed to establish or identify what document or evidence was false or misleading.
(b)    There was no finding that the initial reference letter that was provided was bogus or involved an element of fraud. At no point has the genuineness of the original letter ever been investigated or put to Dimocart for comment.
(c)     There was no finding that the information I included in my application form was not true and correct to the best of my knowledge, or that it involved an element of fraud.
In relation to ground (a), I do not accept that the Tribunal failed to identify what document or evidence was false or misleading. The Tribunal, while it did not accept the truthfulness of the claims made by Mr Di Molfetta in his statement to the Tribunal, did not make a finding that the documents were bogus or the documents were false or misleading. The false or misleading claims referred to by the Tribunal were those made by the applicant himself. These were in his application for a student visa in his claims that he was employed by an employer in Italy and he had been offered a job when he returned to that employer.
I say that somewhat advisedly, because on a fair reading of the claim for the student visa, the applicant does not clearly distinguish between a claim that he is currently employed and a claim that he will be offered a job when he returns. On my reading of his document he claims both.
In relation to ground (b), it is true that there was no finding that the initial reference letter provided was bogus or involved an element of fraud. The Tribunal did not make any finding about the letters from Mr Pieve or Mr Di Molfetta. That ground misses the point in my view.
In relation to ground (c), there was no finding that the information the applicant included in his application form was not true and correct to the best of his knowledge or that it involves an element of fraud. This ground is intended to refer to Trivedi v Minister for Immigration (2014) 220 FCR 169 which requires that the false or misleading statement be purposefully false or that it involve an element of fraud or deception.
It is true that the Tribunal did not make such a direct finding. However, the Tribunal’s conclusion on this point needs to be understood in the context of the forensic battleground in the case. The applicant, at no point, said that he had been mistaken about whether he was employed by Dimocart or whether he was to be given a job when he returned to Italy by Dimocart. Rather, his case was that Mr Di Molfetta, when he spoke to the departmental officer, was mistaken. Mr Di Molfetta provided a statement saying that he was mistaken, that what he had told the departmental officer was incorrect and that the truth was the applicant was to be offered a job when he returned.
For the reasons that I have given, it appears to me that it was open to the Tribunal to conclude that Mr Di Molfetta’s statement was implausible. In other words, what Mr Di Molfetta was saying was not true. That being the case it followed that the claims made by the applicant were untrue. The claims were, it could be inferred, made knowingly and deliberately.
It was not put by the applicant that he was in error in the claims he made - on the contrary. In those circumstances, it appears to me implicit in the Tribunal’s reasoning that the applicant’s claims were purposefully false or, if not purposely false, then reckless as to their truth. In other words, there was an element of deception involved. In my view, that is an implicit finding and one that was open to the Tribunal.
The grounds of review are not made out and the application is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Young

Associate:

Date: 27 March 2020