Rani v Minister for Immigration

[2016] FCCA 581

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 581

Catchwords:
MIGRATION – Review of a decision by the Migration Review Tribunal – Skilled Provisional (Class VC) visa – subclass 485 visa – false and misleading information of a TRA assessment – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.98, 359(2), 359A
Migration Regulations 1994 (Cth), sch.2: cls.485.221(1)(a), 485.224
 sch. 4: 4020, 4020(1), 4020(4)

SZFDE v The Minister for Immigration and Citizenship (2007) 232 CLR 189 SZGJO v MIAC [2005] FMCA 1349

First Applicant: GEETA RANI

Second Applicant: RAVINDER KUMAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2636 of 2014

Judgment of: Judge Hartnett

Hearing date: 29 February 2016

Delivered at: Melbourne

Delivered on: 17 March 2016

REPRESENTATION

The First Applicant: In Person

Counsel for the First Respondent: Mr Smyth

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal.

2. The Application is dismissed.

3. The applicants pay the costs of the First Respondent fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2636 of 2014

GEETA RANI

First Applicant

RAVINDER KUMAR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Before the Court is an Application for judicial review of a decision of the Migration Review Tribunal (as it then was) (‘the Tribunal’) which affirmed a decision of a delegate of the First Respondent not to grant the applicants’ Skilled Provisional (Class VC) visas. 

2. The Application was filed on 23 December 2014.  The grounds of application are as follows:-

   “(1) Me and my husband application for skilled provisional class VC visa was not Consider (sic) according to law. Because we could not submit the document on time.”

3. The ground for judicial review is, as submitted by Counsel for the First Respondent, “unintelligible”. The allegation that the application was not considered according to law is meaningless in the absence of particulars.  The Affidavit sworn or affirmed on 23 of December 2014 does not assist the Applicants. It, in essence, annexes the Decision Record of the Tribunal of 12 December 2014. 

4. Registrar Caporale, on 15 April 2015, made Orders by consent, which included that the First Applicant (she being the primary visa applicant) file and serve any amended application with proper particulars of the grounds of the application and other documents, including written submissions. The Applicant filed neither an amended application nor written submissions.

5. The First Respondent, in response to the Applicants claims for final orders dated 15 January 2015, seeks the Application be dismissed, and the applicants pay the First Respondent’s costs of the proceeding.  In accordance with the Orders of Registrar Caporale, the First Respondent has filed and served Written Submissions on which it relies.  These submissions are dated 18 February 2016. 

6. On the hearing of this matter, the First Applicant, Ms Geeta Rani, appeared as a litigant in person.  Whilst she did not foreshadow in writing to either the Court or the other party that she sought an adjournment of the proceedings, she nevertheless orally sought such an adjournment at the commencement of the hearing. She claimed that she required further time to obtain legal representation, and to obtain documents as to her migration agent.

7. The First Applicant’s application for an adjournment was refused.  In the Court’s view the applicants have had ample time in which to obtain legal representation, and to prepare their case.  The proceeding was filed by them in December 2014, some approximately 14 months before the hearing.  There are also no documents that could assist the applicants in this judicial review application. The First Applicant was given the opportunity to make submissions to the Court orally and to give evidence in the proceedings.  She did so.  Included in that evidence was the First Applicant’s evidence that she instructed her migration agent to obtain a Subclass 485 Temporary visa for the applicants. 

History

1. The applicants applied for a Skilled Provisional (Class VC) visa by electronic lodgement on 23 December 2010.  The applicants indicated that they wished to be considered for the grant of a Skilled (Graduate) (Subclass 485) visa. The applicants, Ms Rani and Mr Kumar, are husband and wife. Ms Rani is the primary visa applicant. One criterion for the grant of the visa was that at the time of decision an applicant held a skills assessment for her or his nominated skilled occupation.

2. Ms Rani’s application sought to meet this criterion by specifying that an assessment had taken place on a particular date and bore a particular TRA reference number.  On 20 February 2012, the First Applicant was contacted by the Department of Immigration and Citizenship (‘the Department’) and provided with an invitation to comment on adverse information in relation to her 485 application.  In summary, the invitation to comment put the following adverse information to the First Applicant:- 

   “It is alleged that your 485 application, currently under consideration by the Department, was lodged with the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information. Whilst you have no agent declared in your application, the Department has identified a file with your personal details and the application reference numbers in the office of S & S Migration. 

   … you provided the following reference indicating a successful skills assessment TRA10035778921… TRA have no record of providing you this skills assessment. TRA also have no record of ever providing you with any skills assessment. It is therefore alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.

   You may provide comment on the information that is considered to be non-genuine, 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…”

3. The First Applicant did not respond to the invitation to comment.

4. Public Interest Criterion (‘PIC’) 4020 in sch.4 to the Migration Regulations 1994 (Cth) (‘the Regulations’) is as follows:-

   “(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.

   (2)  The Minister is satisfied that during the period:

   (a)  starting 3 years before the application was made; and

   (b)  ending when the Minister makes a decision to grant or refuse to grant the visa;

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (2AA)  However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (2A)  The applicant satisfies the Minister as to the applicant's identity.

   (2B)  The Minister is satisfied that during the period:

   (a)  starting 10 years before the application was made; and

   (b)  ending when the Minister makes a decision to grant or refuse to grant the visa;

   neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

   (2BA)  However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (3)  To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (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.

   Note: For the definition of bogus document, see subsection 5(1) of the Act.”

5. The delegate found that whilst S & S Migration were not declared as agents in relation to the First Applicant’s 485 visa application, nevertheless records of the application of the First Respondent were found on their premises, and thus the delegate considered that they assisted the First Applicant in the lodgement of her application. The First Applicant was advised that the operation of s.98 of the Migration Act1958 (Cth) (‘the Act’), in line with policy advice, was to the effect that she was to have completed the form, even if it was completed on her behalf.

6. Section 98 of the Act states:-

   “A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.”

7. The delegate noted that the First Applicant did not respond to the invitation to comment, and did not raise any compassionate or compelling circumstances for the purpose of PIC 4020(4). Therefore the requirements of PIC 4020(1) had not been waived. The delegate noted that the application had been refused following an assessment that the requirement of the PIC 4020 criterion were not met. No skills assessment had taken place on the nominated date or otherwise, and the reference number was not genuine.  Thus, Ms Rani had provided false and misleading information and on the 11 May 2012 the delegate of the Minister refused to grant the visas the applicants sought.  

8. The applicants sought review of the delegate’s decision in the Tribunal, and on 2 April 2014, the applicants were invited to comment on or respond to information which the Tribunal considered would, “subject to your comments or response, be the reason or a part of the reason, for affirming the decision under review”. Such information and enclosed documents were forwarded to Mr Howard Donkin as the authorised recipient of the applicants. The Tribunal had earlier, and on 1 June 2012, acknowledged receipt of the applications for review made by the applicants in respect of the decisions to refuse to grant Skilled Provisional (Class VC) visas on 31 May 2012. 

9. The particulars of the information given by the Tribunal were:-

   (a)that Trades Recognition Australia had no record of providing the skills assessment referred to in the visa application; and

   (b)that documents or information relating to the applicants was located in the office of S & S Migration which entity had been found to have lodged applications to the Department that contain false or misleading information.

   The Tribunal said further:-

   “This information is relevant to the review because the criteria for the grant of the Skilled Graduate visa you have applied for include that there be no evidence that you have given or caused to be given to persons including the Minister a bogus document or information that is false or misleading in a material particular in relation to the visa application.

   If the Tribunal relies on this information in making its decision, it may find that you do not meet this criterion for the grant of a visa and so the Tribunal may affirm the decision of the delegate to refuse to grant the visa.

   You are invited to give comments on or respond to the above information in writing.

   Invitation to provide information

   You are also invited to provide the following information in writing:

   ·Evidence that as at the date on which you made your visa application you had applied for an assessment of your skills for your nominated skilled occupation by a relevant assessing authority and, further, that your skills for that occupation have been assessed by the relevant assessing authority as suitable for that occupation…”[1]

   [1] Letter from Migration Review Tribunal to Mrs Rani and Mr Kumar dated 2 April 2014.

10. On 11 April 2014, the Tribunal received a request for an extension of time. It agreed to such extension of time and sought comments or response and information to be received by the Tribunal by 30 April 2014. By letter of 19 August 2014, the applicants were invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in their case. The Tribunal noted that it had arranged a hearing for 9 December 2014.

11. The Tribunal affirmed the delegate's decision.  It was satisfied that the applicants had caused the false particulars to be given on the application form.  The casual link it found, consistently with authority, was that the First Applicant was indifferent to the contents of her visa application and therefore had given or caused to be given the details in issue.

12. The Tribunal correctly set out in paragraph 5 of its Decision Record that the issues in the case before it were whether the First Applicant had a suitable skills assessment for her nominated occupation at the time of the Tribunal's decision, as required by cl.485.221(1)(a), and whether First Applicant met PIC 4020 as required by cl.485.224 for the grant of the visa.  The Tribunal noted that 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.

13. The Tribunal noted that the First Applicant stated on her application form for the visa that between June 2009 and December 2010 she completed a Diploma of Graphic Design at Cambridge International College at Melbourne. She had nominated the occupation of a graphic pre-press trades worker in her application and stated that she had applied for the skills assessment to VETASSESS on 23 August 2010.  She provided TRA receipt/reference number TRA10035778921.  The Tribunal then noted that the reference number the First Applicant provided could not be verified as it did not exist on TRA’s systems and the TRA had no record of the First Applicant ever holding a skills assessment. The Tribunal noted the proceedings relating to the delegate's proceeding.

14. The Tribunal noted that on 2 April 2014, the Tribunal differently constituted wrote to the review applicants pursuant to ss.359A and 359(2) of the Act inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review and inviting them to provide information that the First Applicant applied for and obtained a skills assessment from the relevant assessing authority. The Tribunal noted that on 1 May 2014 the applicants responded by admitting that the First Applicant sought professional advice from S & S Migration but denied that she knowingly agreed to make an application for a visa for which she did not satisfy the requirements. She conceded she did not have a TRA skills assessment. The Tribunal noted that the matter was constituted to the presiding member on 14 August 2014 and that thereafter the Tribunal wrote to the applicants inviting them to attend the hearing on 9 December 2014.

Tribunal Hearing

1. At the Tribunal hearing, the First Applicant appeared to give evidence and present arguments.  She was represented by a registered migration agent who attended the hearing.

2. The Tribunal set out a summary of the First Applicant's oral evidence in paragraph 19 of the Decision Record.  Relevantly, it is as follows:-

   “She came to Australia in May 2009 as a holder of a Student visa and after completing a three months English language course, she enrolled into a Certificate of Multimedia course at Cambridge International College at Melbourne. She did not complete the course and ceased her studies in March 2010.  She gave birth to her son in May 2010.  In 2012 she completed a Certificate IV in Cookery (eight months duration) and in November 2014 enrolled into Diploma of Hospitality course.  She held a casual employment as a cook at a coffee shop.

   She stated that her intention upon arriving to Australia was to complete her studies and return to India.  Those plans changed in time and now she intends to complete her studies and apply for Australian permanent residency.

   In November 2010, she approached S & S Migration offices intending to apply for a further student visa.  She never wanted to study Multimedia course and wanted to pursue her career in Hospitality.  Her student visa was valid until March 2011. She was advised by S & S Migration to apply for a subclass 485 visa.  She provided a copy of the applicants’ passports, a copy of the birth certificate of her son and a copy of her marriage certificate.  She instructed S & S Migration that she was studying Multimedia course at Cambridge International College at Melbourne and provided her residential address.  She signed the application form without reading it or checking the information and paid $2,500 for S & S Migration's services.

   She received the acknowledgement letter and bridging visa ‘A’ grant from the Department at the beginning of November 2010.  She knew that an application for a subclass 485 visa was lodged with the department. She received a telephone call from the department and on their request, provided her e-mail address.  Soon after she received a letter from the Department requesting documentary evidence in support of the application, including a request for skills assessment and IELTS test results. At that point in time she was aware that in order to be granted a subclass 485 visa, she needed to apply for and obtain skills assessment for her nominated occupation. She did not provide requested documents and did not make further inquiries with the Department.”[2]

   [2] Migration Review Tribunal Decision Record dated 12 December 2014 at [19].

3. The Tribunal invited the First Applicant to indicate if there were any compelling circumstances that affected the interests of Australia or any other compassionate or compelling circumstances that affected the interests of an Australian citizen, permanent resident or eligible New Zealand citizen which would justify the grant of the visas. The First Applicant did not raise the existence of any such circumstances. The Tribunal noted that circumstances affecting the applicants were not relevant for considerations of PIC 4020(4) as neither of them was an Australian citizen or permanent resident. 

Consideration

1. The First Applicant puts nothing before the Court which discloses an arguable basis for the relief claimed.  The Tribunal made findings as follows as set out in paragraph 25 of the Decision Record:-

   “…the applicant has not applied at any time for a TRA assessment for her nominated occupation of a Graphic Pre-press Trade Worker.”[3]

   As such, she was not able to satisfy the requirements of cl.485.221(1), which meant that the visa application itself must fail.

   [3] Ibid at [25].

1. The Tribunal proceeded then to consider whether the First Applicant satisfied cl.485.224, which required her to meet PIC 4020, and whether there were compelling circumstances that affected the interests of Australia, or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.  The Tribunal noted in paragraph 31 of the Decision Record that the issue was whether at the time of decision the First Applicant satisfied PIC 4020.  The Tribunal noted it was required to make an assessment as to whether there was evidence before it that was sufficiently probative to lead to a conclusion that the First Applicant had given or caused to be given to the Minister or an officer of the Department, the Tribunal or a relative assessing authority, a bogus document or information that was false or misleading in a material particular in relation to her application for a Skilled Provisional (Class VC) visa.  Based on the evidence before it and as set out in paragraph 35 of the Decision Record, the Tribunal found:-

   “…that the relevant information was purposefully untrue in that the first named applicant either intended to provide this information to the Department, or S & S Migration intentionally provided this information to the Department, and the first named applicant adopted and consented to providing this information by failing to take any interest in the application and the way in which it was being presented by S & S Migration agents to the Department.”[4]

   The Tribunal further noted that:-

   “… It was open to the applicants to make inquiries about the nature of the application or the content of the application. The first named applicant was, to say the least, indifferent to the nature or content of such an application.  Her desire was to remain in Australia as long as possible.”[5]

   [4] Ibid at [35].

   [5] Ibid at [36].

2. The Tribunal had regard to the reasoning in SZGJO v MIAC [2005] FMCA 1349 and noted that such authority suggested that:-

   “…lack of involvement or failure to take any interest in the application and the way in which it was being presented may be sufficient to make a connection between the applicant and the application submitted by another person. In the Tribunal's view, this is what happened here. Accordingly, the Tribunal does not accept that the applicant's claimed lack of knowledge about the application or information provided by S & S Migration means that PIC 4020 does not apply to her.”[6]

   [6] Ibid at [39].

3. Paragraph 40 of the Decision Record was as follows:-

   “Based on the evidence before it, which the Tribunal considers of sufficiently probative value, the Tribunal finds that the first named applicant has given or caused to be given a TRA reference number to either the Minister and/or an officer with her visa application. This information is false or misleading because the Department investigations revealed that TRA had no record of the first named applicant. The reference number the applicant provided could not be verified as it did not exist on the TRA systems and the TRA had no record of the first named applicant ever applying for a skills assessment. This information, being the TRA reference number provided by the applicant to the Minister and/or an officer, is false or misleading in a material particular because cl. 485.221 requires the applicants for subclass 485 visas to apply to have been assessed by the relevant assessing authority as suitable for their nominated occupation.”[7]

   [7] Ibid at [40].

4. The Tribunal then considered waiver, on which the First Applicant had made no substantive submission.  It expressed itself to be unable to be satisfied that compelling circumstances existed for the purposes of PIC 4020(4).  It affirmed the delegate's refusal decision.

5. The First Applicant denied knowingly agreeing to make an application for a visa for which she did not satisfy the grant requirements and claimed to have every right to expect, and reason to believe, that she would receive professional advice according to law from her migration agents, S & S Migration. However, there is the existence of s.98 of the Act, a deeming provision, which is referred to earlier in these reasons. Secondly, there is the wording of PIC 4020(1) itself, which makes it clear that there is no fault or mental element. The Tribunal had to resolve an issue of fact. It had to be satisfied that the applicants did not give or cause to be given the impugned information. The Tribunal considered the evidence before it and made findings based on that evidence. Such findings were open to it. It clearly set out its process of reasoning, cited authorities and reached a conclusion based on the evidence. There is no evidence of fraud on the Tribunal of the type identified in SZFDE v The Minister for Immigration and Citizenship (2007) 232 CLR 189.

6. There is no jurisdictional error attending the decision of the Tribunal.  As said by Counsel for the First Respondent, it is not apparent that the Tribunal took into account any extraneous or irrelevant consideration, failed to take into account any relevant consideration, misdirected itself as to the law to be applied or reasoned in a way that was irrational, illogical or otherwise impermissible. Accordingly, this Application must be dismissed and costs shall follow the event.

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

Date: 17 March 2016