PROMILA v Minister for Immigration

[2021] FCCA 19

FEDERAL CIRCUIT COURT OF AUSTRALIA

PROMILA v MINISTER FOR IMMIGRATION & ANOR [2021] FCCA 19

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) visa – Skilled (Provisional) (Class VC) visa – Amarante matter – bogus skills assessment provided to department – applicant providing inconsistent evidence to Tribunal – no proper basis for waiver – no jurisdictional error identified.

Legislation:
Migration Act 1958 ss. 5(1), 359A
Migration Regulations 1994, Sch. 2, cl.485.224, Sch. 4, public interest criterion 4020

Applicant: PROMILA

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 551 of 2017

Judgment of: Judge Riley

Hearing date: 28 October 2020

Date of last submission: 28 October 2020

Delivered at: Melbourne

Delivered on: 14 January 2021

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent:	Adam Cunynghame
Advocate for the second respondent:	No appearance

Solicitors for the respondents: Sparke Helmore

ORDERS

1. The application filed on 20 March 2017 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 551 of 2017

PROMILA

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Background to the application

1. The Minister summarised the background to the application in his written submissions filed on 9 October 2020 as follows:

   4.On 20 March 2009, the applicant applied for the visa: Court Book (CB) 1-11. Included with the application was a copy of a letter from Trades Recognition Australia (TRA) indicating that the applicant had nominated the position of pastry cook for the purpose of a skills assessment component and that she had completed 900 hours of work experience: CB 16-17. 

   5.On 9 October 2012, the department sent the applicant an invitation to comment that there was evidence suggesting the applicant provided, or caused to be provided, a bogus document or false or misleading information in relation to the visa application, and that the applicant may fail to satisfy cl 4020 of Schedule 4 of the Regulations (PIC 4020): CB 26-63.

   6.On 28 December 2012, a delegate of the Minister refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl 485.224 of Schedule 2 to the Migration Regulations 1994 (the Regulations) …. The delegate found that the applicant did not satisfy PIC 4020, because she had submitted to the Minister in support of her visa application a “bogus document” in the form of a skills assessment issued by TRA dated 14 July 2008 (skills assessment). The delegate found that the skills assessment had been obtained due to a false work reference made to TRA, whether or not made knowingly, about the applicant’s claimed 900 hours work experience at Bakers Hut Bread Supplies (Bakers Hut).

   7.On 2 January 2013, the applicant applied to the then Migration Review Tribunal (the MRT) for review of the delegate’s decision: CB 81-91. On 26 February 2015, the MRT affirmed the delegate’s decision: CB 111-119. On 12 April 2016, the Federal Circuit Court made an order by consent remitting the matter on the basis that the MRT had failed to give the applicant clear particulars of certain information under s 359A of the Act: CB 120-121.

   8.On 20 January 2017, the Tribunal sent the applicant a letter pursuant to section 359A of the Act, inviting her to comment on or respond to information pertaining to her visa application that might cause the Tribunal to consider that she had submitted a bogus document and did not satisfy the visa requirements: CB 128-153. The particulars of the information related to admissions by Mr Amarante in County Court proceedings and the requirement that the applicant satisfy PIC 4020. In summary, the relevant information was as follows:

   8.1Mr Amarante had admitted to creating false work references for students, stating that they had completed 900 hours of work in their relevant trade and that these were provided to TRA in support of visa applications.

   8.2Mr Amarante told police that Bakers Hut was one of the businesses involved in providing false work references and that the employer, Mr Dennis Kordemir, had agreed for Mr Amarante to sign work references on his behalf.

   8.3The period during which Mr Amarante was involved in producing false work references coincided with the period the applicant claimed to have undertaken work experience at Bakers Hut. Work reference documents were found at Mr Amarante’s premises that related to the applicant and her claimed work experience at Bakers Hut.

   8.4Mr Kordemir had given oral evidence to a differently constituted Tribunal that only two volunteers had fully completed the 900 hours required work experience at Bakers Hut; the applicant was not named as one of those people

   9.In response to a request by the applicant, the Tribunal provided an extension of time for her to respond to the section 359A letter until 13 February 2017: CB 158-159. On 13 February 2017, the applicant sent a letter to the Tribunal stating that she had not supplied false or misleading information or any bogus document: CB 166-187. The letter attached a number of documents, including the TRA assessment, the relevant Bakers Hut work reference and evidence that the applicant had worked at another business.

   10.On 20 January 2017, the Tribunal also invited the applicant to appear before it on 15 February 2017 to give evidence and present arguments: CB 154-155. On 15 February 2017, the Tribunal granted a postponement to the applicant and invited the applicant to a hearing before it on 22 February 2017: CB 190-192.

   11.On 22 February 2017, the applicant appeared before the Tribunal to give evidence and present arguments: CB 195-198. 

Legislation

1. For the purposes of the visa, the applicant was required to provide a skills assessment pursuant to reg.485.224(1) of Schedule 2 to the Migration Regulations 1994 (“the Regulations”), which relevantly provided as follows:

   The skills of the applicant for the applicant's nominated skilled occupation have been assessed, during the last 3 years, by a relevant assessing authority as suitable for that occupation.

2. Public interest criterion 4020 (“PIC 4020”), which is in Schedule 4 to the Regulations, relevantly provided that:

   (1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, 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)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a)compelling circumstances that affect the interests of Australia; or

   (b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.

   (5)In this clause:

   information that is false or misleading in a material particular means information that is:

   (a)false or misleading at the time it is given; and

   (b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

3. The term, bogus document, is defined in s.5(1) of the Migration Act 1958 (“the Act”) as follows:

   bogus document, in relation to a person, means 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.

The Tribunal’s reasons

1. The Tribunal considered that the skills assessment provided by the applicant was a bogus document, and consequently, that the applicant did not meet PIC 4020. The Tribunal based that conclusion on the information it had given to the applicant pursuant to s.359A of the Act, but also on concerns it had about the applicant’s credibility due to various inconsistencies in the applicant’s own evidence. The Minister addressed this issue in his written submissions as follows:

   15Those concerns arose from inconsistencies between the information contained in the applicant’s three statements to the MRT, her letter of 13 February 2017 to the Tribunal, and her oral evidence at the hearing ([19]). The applicant maintained that some of the letters were typed by her, others by her former representative. The Tribunal went through the relevant content of the letters and noted the applicant’s responses at hearing ([22] – [25]). In particular, the Tribunal noted:

   15.1In her first letter, the applicant had accepted that information in her visa application was false and misleading. At the hearing she claimed the letter did not reflect what she had written by hand. She could also not satisfactorily explain claims in the letter to have been a “victim” of Mr Amarante and that she was previously told she did not need to obtain work experience ([22]).

   15.2At the Tribunal hearing, the applicant stated that Mr Amarante was her former teacher. In the second letter, the applicant had stated that she came to know about Mr Amarante only through investigations by the department. The applicant could not explain the statement in her second letter ([23]).

   15.3In her third letter, the applicant had stated that her skills assessment had been revoked by TRA because it could not verify her work experience. At the hearing, the applicant first denied this, and then changed her position to state it had in fact been revoked, as had been reiterated in her fourth letter ([24]-[25]).

   16The Tribunal noted that the applicant’s response to the adverse information was that she had worked for Bakers Hut so the work reference contained information that was true. The Tribunal found that the applicant’s evidence was vague about the number of hours she had worked and contradictory in other aspects. It found that she did not give satisfactory evidence to explain information she had provided in the letters or the information linking her to Mr Amarante’s fraud ([28]). The Tribunal accepted that she may have visited and spent time at Bakers Hut, but found that the evidence was not sufficient to counter the reasonable suspicion it had that the information contained in the work reference about the hours she worked was false or misleading ([28]). Consequently, the Tribunal was not satisfied that there was no evidence that the applicant had given or caused to be given to the Minister a bogus document, because it reasonably suspected that the skills assessment was obtained because of a false or misleading statement, whether or not made knowingly ([18],[29]).

2. Having decided that the applicant did not satisfy PIC 4020(1), the Tribunal then considered whether that requirement should be waived pursuant to PIC 4020(4). At paragraph 17 of his written submissions, the Minister summarised the Tribunal’s consideration of this issue as follows:

   The Tribunal then proceeded to consider whether PIC 4020 should be waived ([30] – [38]). The Tribunal noted that, despite being invited by the delegate and the MRT to comment on the potential for waiver of PIC, it was not until the hearing on 22 February 2017 that she advanced arguments that a waiver be made ([32]). It had regard to the whole of the applicant’s conduct ([34]), her claims to have worked elsewhere in Australia, that her life had been on hold for 10 years because of the events surrounding her visa application, and the fact that she had an uncle, aunty and cousin in Australia that she saw monthly ([36] – [37]). Based on these considerations, the Tribunal found that the evidence did not show compelling circumstances affecting the interests of Australia, such that if the applicant was not granted the visa, Australia’s trade or business opportunities would be adversely affected; that relationships with a foreign government would be damaged; or that Australia would miss out on a significant economic or other benefit. It was also not satisfied that there were compassionate or compelling circumstances that affected the interests of an Australian citizen, permanent resident or eligible New Zealand citizen ([38]).

Ground 1

1. The first ground of review in the application filed on 20 March 2017 is:

   I applied for Skilled Graduate Visa SC 485 on 20 March 2009 but DIBP refused my visa on 28 December 2012 on the basis that I did not satisfy the requirements for cl.485.224 of Schedule 2 to the Migration Regulations 1994 (the regulations).

2. This is not a ground of review as such and simply recounts part of the background to the matter.

Ground 2

1. The second ground of review in the application is:

   I appealed to AAT (formerly MRT) on 2 January 2013 and my appeal was refused on 27 Feb 2015 by MRT as they affirmed the DIBP decision.

2. This is not a ground of review as such and simply recounts part of the background to the matter.

Ground 3

1. The third ground of review in the application is:

   I applied for Judicial Review and on 12 April 2016, the Federal [Circuit] Court of Australia made an order by consent remitting the matter to the Tribunal. The reason for remittal was that MRT failed to give particulars of certain information under s.359A of the Act.

2. This is not a ground of review as such and simply recounts part of the background to the matter.

Ground 4

1. The fourth ground of review in the application is:

   Following the remittal of the matter by the Court to the Tribunal I got a further invitation pursuant to s.359A. I went to Tribunal for hearing on 22 February 2017.

2. This is not a ground of review as such and simply recounts part of the background to the matter.

Ground 5

1. The fifth ground of review in the application is:

   The Tribunal concluded that I do not satisfy cl.485.224 because I do not satisfy PIC 4020. There are various reasons Tribunal mentioned in decision record and concluded that I do not satisfy PC 4020 for the purposes of cl.485.224(1).

2. This is not a ground of review as such and simply recounts part of the background to the matter.

Ground 6

1. The sixth ground of review in the application is:

   I completely disagree with the Tribunal decision and reasons mentioned in the decision record. I would like Federal [Circuit] Court to accept my application and give me a chance to present evidence in court in support to my application.

2. The application was filed on 20 March 2017. The matter came on for hearing on 28 October 2020. In the intervening 3.5 years, the applicant did not file any further evidence. Indeed, at the hearing on 28 October 2020, she told the court that she did not have any further evidence. Otherwise, this ground simply seeks impermissible merits review.

Ground 7

1. The seventh ground of review in the application is:

   I came to Australia on 26 March 2006 and lived in Australia for more than 11 years. I have spent a considerable time in Australia during which I have worked at different places on the basis of experience provided to DIBP. I still can't believe that Tribunal refused to accept my claims and evidences, so I request the Federal [Circuit] Court to exercise its powers and reverse the decision after reviewing the evidences

2. This ground simply seeks impermissible merits review.

Oral submissions

1. At the hearing on 28 October 2020, the applicant was unrepresented. The court explained its limited function in judicial review and invited the applicant to point to anything that the Tribunal had done that was wrong. The applicant was unable to point to anything that might amount to jurisdictional error. She merely described to the court her personal circumstances and her history in Australia of being a law abiding and tax paying member of the community.

2. In oral submissions, the Minister emphasised that the Tribunal had taken into account the applicant’s personal circumstances in relation to the question of waiver, but was not persuaded that the matters raised by the applicant met the criteria. I accept that submission.

Conclusion

1. I have carefully considered all of the material in this case. I have been unable to identify anything that could amount to a jurisdictional error. Consequently, the application will be dismissed with costs.

I certify that the preceding twenty four (24) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate:

Date:         14 January 2021