Rani v Minister for Immigration

[2016] FCCA 1597

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANI v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1597

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – Applicant’s agent delivering bogus document on her behalf – Applicant therefore failing to meet requirement under PIC 4020 – whether PIC 4020 should have been waived – Tribunal not falling into jurisdictional error – application dismissed.

Legislation:

Migration Act 1958

Migration Regulations 1994

Cases cited:
Trivedi & Ors v Minister for Immigration and Border Protection & Anor (2014) 220 FCR 169

Applicant: POONAM RANI

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2137 of 2014

Judgment of: Judge Burchardt

Hearing date: 28 April 2016

Date of Last Submission: 28 April 2016

Delivered at: Melbourne

Delivered on: 11 July 2016

REPRESENTATION

The Applicant: In person

Counsel for the First Respondent: Mr Day

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be changed to ‘Administrative Appeals Tribunal’. 

2. The Application filed 22 October 2014 is dismissed. 

3. The Applicant pay the First Respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2137 of 2014

POONAM RANI

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an application filed 22 October 2014, the Applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 1 October 2014.  The Tribunal affirmed the decision of a delegate of the First Respondent not to grant the Applicant a Student (Temporary) (Class TU) visa.  The grounds of application assert that:

   “1.    The Applicant is an innocent victim of fraud by her agent in India. 

   2.    The Applicant’s father who organized the financial documents was misled by the agent who agreed to arrange the requested documents but instead provided fake bogus documents. 

   3.    The Applicant never gave any false or misleading information to DIBP.

   4.    The MRT failed to remove the PIC4020 ban.”

2. The Applicant’s affidavit, filed contemporaneously with the application, effectively repeats those grounds almost seriatim. 

3. On 2 February 2015, Registrar Allaway made orders by consent which permitted the Applicant to file any further amended application and affidavits, but she has not done so.  That is understandable given her circumstances.

4. The First Respondent filed written submissions on 24 April 2016, to which I shall return.

5. When the matter was before the Court, the Applicant essentially repeated her complaint that her difficulties were entirely the result of her agent’s fraud.  She asked how a person like her father, who is illiterate, could understand fake documentation.  She said she wished to finish her studies.  She is now married, and if she has to return to India, her husband will struggle.  He is from Fiji and cannot survive here (although she did say he has permanent residency in Australia and could, therefore, presumably work).  The Applicant said she just wanted to finish her study, and was a victim of her agent’s fraud.

6. Counsel for the Minister was content to rely upon his written submissions, although he also referred to the decision of Trivedi & Ors v Minister for Immigration and Border Protection & Anor (2014) 220 FCR 169 at [49] and the analysis therein by Buchanan J of the effects of Public Interest Criterion “PIC” 4020.

7. In reply, the Applicant referred again to her new relationship with her husband.  She said she has three months study left and just wants to finish.  I would observe in passing that, one way or another, I suspect she will achieve that outcome.  Owing to pressure of work, it is likely to be approximately eight weeks from hearing before this judgment is actually issued. 

8. The Applicant applied for a Student (Temporary) (Class TU) visa on 13 July 2012 (Court Book “CB” 1-24). 

9. The First Respondent made a request for information, in response to which the Applicant submitted a financial document from Access Bank, showing a fixed deposit account in the name of Roshan Lal, the name of her father (CB33).  That document was referred to the Australian High Commission for integrity checking. 

10. The response from Post in New Delhi is at CB55.  The fixed deposit upon which the Applicant relied is in the name of Mr Roshan Lal Sehgal, whose date of birth “as in bank records” was 4 July 1944.  The response noted “The nominee name on the fixed deposit is for the son and the son’s name is Sanjay Sehgal”.

11. The First Respondent’s representative in Delhi sought to phone the Applicant’s father, but spoke to her sister, who provided information that her father’s name was Roshan Lal, and his family name was Matta (CB56).  The message from Delhi relevantly said:

    “The Applicant has provided the financial documents of some other Mr Roshan name.  The details verified from the bank do not match the details of the sponsor.” 

12. At CB57, the message went on:

    “The Applicant has provided the financial documents of some other Mr Roshan Lal, whose first name is common to the Applicant’s father’s name.  The details verified from the bank do not match the details of the sponsor as provided by the Applicant’s sister during the sponsor interview conducted.” 

13. The message went on to give details of the different details and concluded that they had been provided a fraudulent financial document. 

14. The First Respondent wrote to the Applicant on 1 October 2012 (CB70-74) bringing these matters to her attention and requesting a response, and on 29 October 2012 the Applicant provided evidence of an overdraft against a fixed deposit in the name of her mother (by her then agent)  CB75-77.  No information was provided about the previous information which was found to have been fraudulent or misleading.

15. Thereafter, the delegate of the First Respondent rejected the Applicant’s claim (CB89-92).  The delegate found that the Applicant had provided fraudulent and misleading documents to an officer of the First Respondent and, therefore, did not meet PIC 4020, specifically cl.572.224.  The delegate noted that the Applicant had not requested a waiver of PIC 4020 on the basis of compassionate and compelling circumstances, and declined to waive the requirement, in any event.

16. The Applicant sought review by the Tribunal, and provided written submissions, as well as supporting financial documents.  (CB133-167.)  The written submissions essentially refer to the fraudulent conduct of the agent engaged by the Applicant’s father, and her endeavours subsequently, once the matter came to light, to rectify the deficiency.  It should be noted that the submission expressly raises a request for waiver of PIC 4020 on the basis of compelling circumstances (CB134).

17. The submission also noted that the Applicant’s father is an uneducated person, as is her mother, and the kernel of the submission at page CB135 is:

    “I had no reason or intention to provide fraudulent documents because my parents always had sufficient funds to pay for my studies.  It was just very misfortunate with me that my local agent, for his own selfish benefit, misguided my parents and provided us with illegitimate funds.” 

18. I note that, in referring to her academic studies, the Applicant stated inter alia at CB136:

    “I am currently enrolled in Diploma of Beauty Therapy from Sheila Baxter Training Institute, which is due to be completed on 29/1/2016.”

19. She went on to express confidence in having a fulfilling career in India, where the beauty market is huge.  She requested that PIC 4020 be waived, and her genuine funds considered.

20. The Tribunal conducted a hearing on 30 September 2014 and, as earlier indicated, the decision was handed down on 1 October 2014.  The Applicant attended the hearing.

21. The Tribunal’s decision is at CB175-179.  The Tribunal set out the nature of the application for review, and then, at paragraphs 6-7, CB176, identified the issues before it.  The Tribunal asserted:

    “6.    The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.572.224 for the grant of the visa.  Broadly speaking, this requires that:

    ·there is no evidence the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation the application for the visa or a visa that the Applicant held in the 12 months before the application was made: PIC 4020(1);  and

    (The other dot points are omitted as presently irrelevant). 

    7.    The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the grant of the visa:  PIC 4020(4).  However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B).  PIC 4020 is extracted in the attachment to this decision.”

22. The Tribunal traversed the definition of bogus document at paragraphs 8-16 (CB177-8).  The Tribunal noted the force and effect of the decision in Trivedi, and traversed the fact that the false documentation was asserted by the Applicant to have been provided by a dishonest agent, bearing in mind that her father is illiterate (paragraph 11). The Tribunal found, at paragraph 13 and following:

    “In my assessment, the Applicant is a truthful witness and she has been the victim of an unscrupulous agent.  I accept that neither her nor her father knew that the financial document was bogus.

    I find that the document submitted is a bogus document as defined in s.97(a): 

    (a)     purports to have been, but was not, issued in respect of a person; 

    As I explained to the applicant at the hearing, Trivedi is authority that it is not relevant that the Applicant was unaware that the document was bogus.  I find that there has been the necessary deceitful intent on the part of the agent in India.  In the present case the applicant was indifferent to the detail of the application and I conclude that the agent acted within the scope of his authority.  I find that the applicant had ‘caused’ the process of making the application for the visa, which extended to the giving of a bogus document. 

    Therefore, the Applicant does not meet PIC 4020(1).”

23. The Tribunal then went on to consider the Applicant’s application for waiver of PIC 4020(1) or (2).  The Tribunal recorded, and there has been no suggestion that the record is inaccurate, at paragraphs 18-20:

    “In her written statements and in her oral evidence the Applicant was only able to point to her own interests in requesting the waiver.  I went to pains to explain to her that her own interest is not a relevant factor, and that she must demonstrate:

    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,              that justify the granting of the visa. 

    The applicant was unable to provide evidence or point to any such relevant factors.  As a result, the Tribunal is not satisfied that the requirements should be waived.” 

24. While, as the First Respondent’s written submissions identify at paragraphs 16 and 17, there were some minor, but, in my view, inconsequential typographical errors and factual mistakes in the Tribunal’s decision, I accept that these do not operate on the force of the Tribunal’s decision. 

25. In Trivedi, Buchanan J said at [49]:

    “For the reasons I have already given, it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue.  It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application.  Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of intention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant.  It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application.  It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so.  In many cases that would be impossible and would defeat the apparent intention of the provision.”

26. Applying those observations to the facts of this case, it is immediately apparent that the documentation supplied by the Applicant in support of her application was clearly a bogus document within the meaning of the Act.  It was clearly equally provided to the First Respondent.  There is no doubt on the materials that the Tribunal was entitled (in my view bound) to find that this document had the necessary fraudulent intent to engage the difficulties the Applicant has faced.

27. The only issue that remains is whether the Applicant’s application for waiver should have been granted.  In this sense, it is important to remember that the Court is only concerned to remedy jurisdictional error on the Tribunal’s part, not any factual error at which it may have arrived.

28. I note that the Applicant in her oral submissions before the Court asserted that her husband is an Australian permanent resident.  That might seem prima facie to have the capacity to engage PIC 4020(4)(b).

29. The difficulty is that there is nothing that I can see in the materials that suggests that the Applicant ever raised the possibility of waiver on the basis of her now-asserted permanent resident husband before the Tribunal.  Her written submission dated 23 September 2014 does, as earlier indicated, seek waiver of PIC 4020, but the grounds advanced in support of that application did not disclose, let alone rely upon, the existence of the husband with possible permanent residence.

30. Although the MRT hearing record (CB168) discloses that someone called Neeraj Vikash Chand attended the Tribunal in the role of “support”, it seems clear this person did not speak.  It is not possible to say whether this person was or was not the Applicant’s husband.  Nothing in the Tribunal’s decision suggests that this issue of a possible exemption pursuant to PIC 4020(4) was raised, even in the most remote or oblique way.  The Tribunal could not have fallen into error in failing to address any such matter.

31. The Tribunal’s decision was, in my view, not only open to it, but one that the Tribunal was required to reach on the materials as they stood.  It does not disclose jurisdictional error.  It follows that the application will be dismissed with costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 11 July 2016