Perera v Minister for Immigration

[2015] FCCA 2274

FEDERAL CIRCUIT COURT OF AUSTRALIA

PERERA & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2274

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Skilled (Residence) (Class VB) visa – whether the applicant had provided a bogus IELTS test to the delegate – whether applicant given the opportunity to sit another IELTS test – whether Tribunal erred in making adverse findings in relation to the waiver of a visa requirement – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.363, 476

First Applicant: NILANTHA KALUM LIYANAGE PERERA

Second Applicant: NILUPA MAWARATNE WEERAPPULLIGE

Third Applicant: SADUNI AALIYAH LIYANAGE PERERA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1190 of 2015

Judgment of: Judge Street

Hearing date: 21 August 2015

Date of Last Submission: 21 August 2015

Delivered at: Sydney

Delivered on: 21 August 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the first respondent: Ms A Lucchese
Sparke Helmore

ORDERS

1. The name of the second respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1190 of 2015

NILANTHA KALUM LIYANAGE PERERA

First Applicant

NILUPA MAWARATNE WEERAPPULLIGE

Second Applicant

SADUNI AALIYAH LIYANAGE PERERA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 7 April 2015 affirming the decision of the delegate not to grant the applicant a Skilled (Residence) (Class VB) visa.

2. The applicant was sent a letter on 30 July 2013 in response to his Skilled (Residence) (Class VB) visa, in which the following was said after referring to the need to satisfy of the requirement PIC 4020 and that failure to satisfy that criterion may result in the application for the grant of the visa being refused:

   You provided an IELTS Test Report Form with your application for a test that was undertaken on 05 March 2011. The results of the IELTS test that you submitted were as follows: Listening 7.0, Reading 7.0, Writing 7.0, Speaking 7.5; Overall Band Score 7.0.

   I compared your scores with those held in a central database maintained by IELTS via an electronic verification system. This check showed that your scores were recorded as follows: Listening 6.5, Reading 5.5, Writing 6.0, Speaking 7.5; Overall Band Score 6.5.

   This means that the test results you provided were not the test results that you had achieved in the test you had undertaken. As the delegate responsible for this subclass 885 visa application, I am obligated to provide you with clear particulars about the information received relating to your IELTS results sheet and the fact that I reasonably suspect that the test report results you provided are not authentic.

   As there is evidence suggesting that you have provided, or caused to be provided, a bogus document or false or misleading information in relation to this visa application, the following applicants may fail to satisfy PIC 4020, with the result that this visa application may be refused:

   LIYANAGE PERERA, Nilathan Kalum

   WEERAPPULLIGE, Nilupa Nawaratne

   You may provide comment on the information that is considered to be false or misleading or the document that is considered to be bogus, and specify if you believe there are any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of PIC 4020 and the grant of the visa.

   As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

3. That letter drew attention to the proposition that the applicant had provided the Department with an alleged false or misleading document which might be considered to be a bogus document in relation to the applicant’s IELTS tests.  Relevantly, in relation to those tests, the alleged bogus document had a reading score of seven and the alleged genuine test had a reading score of 5.5.

4. In relation to that alleged bogus test of which the applicant was informed on 30 July 2013, the applicant did not sit any further tests to demonstrate that he had a reading ability of above 5.5 or perform other tests to prove that the test results that had shown a reading of seven were his tests.  Rather, the applicant appears to have commenced steps to challenge the correction to the IELTS test and has allegedly pursued litigation relating to whether the alleged bogus document was his test. 

5. The delegate refused the applicant’s visa application on 3 September 2014, relevantly finding that a bogus document had been provided in relation to the IELTS test showing a 7.0 reading score.  The applicant applied for a review of that decision on 13 September 2014.  The applicant attended a hearing before the Tribunal on 19 December 2014 as a result of an invitation to appear sent by letter on 5 November 2014 that complied with the requirements of the Act.

6. The Tribunal identified the evidence adduced by the applicant at the hearing during which the issue of the applicant sitting another test was clearly raised by the Tribunal, as identified in para.45, and the applicant was clearly given an opportunity to provide further material after the hearing by letters dated 6, 7 and 8 January 2015.  None of those documents annexed any further test that the applicant had sat.

7. The Tribunal found that the applicant had provided a document, being the IELTS test that was a bogus document, and found that the applicant had given or caused to be given that document to the Minister in relation to the application for a visa.  It was in those circumstances that the Tribunal turned to the consideration of whether the requirements of PIC 4020 should be waived and made adverse findings in that regard.

8. The application identified the following grounds:

   1. The MRT member made legal error in considering my evidence and making decision.

   2. I need a copy of the MRT audio tape to listen and put details of the grounds when this court asks me to do it.

9. In relation to the first ground, the assertion of legal error is unparticularised and it is clear that the Tribunal considered the applicant’s evidence in coming to the adverse findings made.  It is clear that those adverse findings cannot be said to lack in evident and intelligible justification.  It is clear that the adverse findings were open on the evidence before the Tribunal.  Nothing in the first ground advanced by the applicant identifies any jurisdictional error. 

10. It is clear that the applicant did receive a copy of the audio tape and nothing in the second ground identifies any jurisdictional error.  The matter was the subject of orders made on 4 June 2015, fixing the matter for hearing on today’s date and providing an opportunity for the applicant to file an amended application, put on further affidavit evidence and/or file submissions.  No documents were filed by the applicant.

11. At the commencement of the hearing this morning at 10.15am the applicant indicated that he wished to seek an adjournment.  The applicant gave evidence from the bar table that he had moved address two weeks ago and said that he had not received the court book or the first respondent’s submissions.  The applicant also indicated that he wanted a Sinhalese interpreter.

12. The request for an adjournment was opposed and it was common ground by the applicant that no earlier notice of his absence of receiving material or his desire to seek an adjournment had been given to the first respondent.  The matter was stood down the list and an interpreter was obtained to assist the applicant.  The applicant was also provided in that regard, with a copy of the first respondent’s submissions and the court book.

13. Approximately two hours later, Court continued to hear the adjournment application with the applicant having the benefit of the Sinhalese interpreter.  The applicant identified his circumstances were one where he had had other distractions and had not been able to focus on this matter and that he hoped to obtain financial assistance from a cricket club and to obtain the benefit of a lawyer to assist him.  The applicant also indicated that he was awaiting further documents which he wished to adduce as additional evidence in relation to his case, relating to why the document that was found to be a bogus document was not a bogus document.  The applicant also identified that he wanted more time to respond to the first respondent’s submissions and to go through the court book and to listen again to the recording.

14. It is clear from what the applicant said to the Court that he had received that recording on 3 June 2015, and it is clear that the applicant attended the hearing on 4 June 2015 when the orders were made fixing the matter for hearing.  On 4 June 2015, the applicant provided his address to the Court, and to the first respondent, clearly in the context of being able to receive communications from the first respondent.  It is also clear that the applicant had the first respondent’s contact details from the correspondence he had received, dated 8 May 2015 and 3 June 2015.

15. The first respondent opposed the adjournment application, identifying that the applicant had commenced the application on 30 April 2015 and was well aware of the orders made on 4 June 2015 fixing the matter for hearing and had made no real effort to engage with compliance with those orders, or take any steps to communicate with the first respondent.  Further, the first respondent submitted that this was a case where there was no substance in the grounds identified in the application for the reasons expressed in the first respondent’s written submissions, and that an adjournment would only increase the cost to the parties unnecessarily.

16. The first respondent also submitted that there was no basis upon which the Court could be satisfied that an adjournment would be of any utility in the context of this case.  I accept the first respondent’s submissions.  For the reasons I have given, the grounds in the application have no substance.  Nothing said by the applicant from the bar table identified any jurisdictional error.  The applicant did make reference to the proposition that he wanted more time before the Tribunal to pursue the obtaining of documents relating to his Court case, seeking to challenge the bogus document. Additional documents would not be admissible to show error as to the finding by the Tribunal.

17. It was clearly open to the Tribunal to exercise its power under s.363 to continue with the review and not grant a further adjournment in circumstances where the applicant had attended the hearing and had in fact been given an opportunity to put on further material after the hearing, which was in fact taken into account. This is not a case where the Tribunal could be said to have failed to properly exercise its statutory power in relation to deciding whether to continue with the review.

18. The decision to continue the review without a further adjournment cannot be said to lack an evident and intelligible justification.  Nothing said by the applicant disclosed any jurisdictional error.  I accept the first respondent’s submissions that the explanation for the adjournment of the present case is inadequate.  In that regard, I take into account the absence of any earlier communication by the applicant either that he required an interpreter, which in fact was provided, or that he had changed addressed or was seeking an adjournment.

19. I am not satisfied that there would be any utility in granting an adjournment, and I accept the first respondent’s submissions that in this case an adjournment would only unnecessarily increase the costs of the parties and utilise limited Court time.  I have also taken into account that the application fails to disclose any arguable jurisdictional error Tribunal and that the applicant has had a reasonable opportunity as a result of the orders made on 4 June 2015 to advance any arguable case, and has been unable to do so.

20. It is for these reasons that the adjournment was refused, and the application is dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 27 August 2015