RANI v Minister for Immigration

[2014] FCCA 2908

FEDERAL CIRCUIT COURT OF AUSTRALIA

RANI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2908

Catchwords:
MIGRATION – Student visa – Subclass 572 – where PIC4020 not met because tribunal determined applicant gave false documents to first respondent in support of visa application – where applicant claimed that she was unaware that the documents were false – where knowledge of falsity not necessary before PIC4020(1) engaged – application dismissed.

Legislation:  

Migration Act1958
Migration Regulations 1994, cl.572.224 of schedule 2, public interest criterion 4020

Minister for Immigration v SZIAI (2009) 83 ALJR 1123
Trivedi v Minister for Immigration (2014) 141 ALD 252

Applicant: SONIA RANI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 708 of 2014

Judgment of: Judge Jarrett

Hearing date: 28 November 2014

Date of Last Submission: 28 November 2014

Delivered at: Brisbane

Delivered on: 28 November 2014

REPRESENTATION

The Applicant appearing on her own behalf

Solicitor for the First Respondent: Ms Kelly

Solicitors for the First Respondent: Clayton Utz

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed 17 October 2014 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of $6646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 708 of 2014

SONIA RANI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

ex tempore

1. This is an application for the issue of constitutional writs in respect of a decision of a migration review tribunal.  By her amended application filed on 7 October, 2014 the applicant seeks that an order of a migration review tribunal be quashed and that her application be returned to a migration review tribunal to be determined according to law.

2. The applicant applied for the issue of a Student Temporary (Class TU) visa.  That visa was refused by a delegate of the first respondent and that refusal was the subject of an application for review before a migration review tribunal.  The tribunal determined to affirm the decision under review and it is from that decision that this application arises.

3. In these proceedings, the Court’s task is to determine whether the tribunal’s decision is affected by jurisdictional error.  That is the only basis upon which this Court can interfere with the tribunal’s decision.  There are only very limited circumstances in which the Court can interfere with decisions concerning the facts or merits of the case. 

4. The applicant’s application for a student visa was to be granted according to the requirements of the Migration Act 1958 and the Migration Regulations1994.  The Student category of visas has a number of sub-classes.  The applicant’s application was assessed against sub-class 572.  Some of the criteria relating to that sub-class are to be found in schedule 2 to the Regulations.  Clause 572.224 of schedule 2 to the Regulations contains a criterion to be satisfied by the applicant at the time the decision concerning her visa application is made.  That criterion required the applicant to satisfy certain public interest criteria, and relevantly in this case PIC4020.

5. Public interest criterion 4020 required that at the time of the visa decision there was no evidence that the applicant had given or caused to be given to the first respondent a bogus document or information that was false or misleading in a material particular in relation to the application for the visa.

6. For the purposes of her application, the applicant provided to the first respondent, by his delegate, two fixed deposit receipts in her father’s name.  That the deposits existed was important for her visa application.  The first respondent’s delegate undertook inquiries in relation to those deposit receipts.  According to the tribunal’s reasons, the delegate forwarded those documents to an overseas post for verification.

7. An officer of the first respondent’s department interviewed the applicant’s father, who lived in India.  He stated that he did not have any fixed deposits and that, rather than residing in New Delhi as the applicant had informed the departmental officers, he had been residing in Karnal for 25 or 30 years.  He did not have any house in New Delhi.  He provided other information, including financial information, to the first respondent’s officer.

8. The first respondent’s delegate wrote to the applicant, giving her the information obtained by the overseas post and asking for her comments on it.  The applicant’s explanation was that her grandfather had recently passed away, her father was stressed and was unable to “speak properly”.  As a result of her father’s stress, his evidence, she said, was misunderstood.

9. The tribunal, in its reasons for decision, considered that information and came to its own conclusion that the applicant had provided information to the first respondent that was false.  Accordingly, the tribunal determined that the applicant did not satisfy public interest criterion 4020.

10. The tribunal went on to consider whether it should waive compliance with public interest criterion 4020 and determined that, in the circumstances, it was inappropriate to do so.  Accordingly, the delegate’s decision was affirmed.

11. In this application, the applicant relies on three grounds of review.  The first two grounds of review, in my view, amount to two different ways of saying the same thing, namely, that the tribunal fell into jurisdictional error because it did not determine that the applicant had not knowingly provided false or misleading information in relation to her visa application.

12. In that respect, the applicant’s case is that she did not knowingly provide false or misleading information in relation to her visa application and therefore the tribunal ought to have determined that public interest criterion 4020 had been met.

13. However, as the first respondent points out, that argument is clearly met by the decision of the Full Court of the Federal Court of Australia in Trivedi v Minister for Immigration (2014) 141 ALD 252. In that case, at paragraph 54 of the judgment, Buchanan J says:

    In summary, I conclude that:

    ·    Public interest criteria 4020(1) refers to information that is false in the sense of purposely untrue.

    ·    It is not necessary to conclude that a visa applicant is aware that information is purposely untrue before public interest criteria 4020 is engaged.

    ·    The FCCA was correct to conclude that the MRT did not make a jurisdictional error when it found that PIC 4020 was engaged in the present case.

14. The Chief Justice of the Federal Court and Rangiah J agreed with Buchanan J. 

15. It is, in the circumstances of this case, not to the point to demonstrate that the applicant did not know that the information she provided to the first respondent was untrue.  The tribunal was correct to conclude that public interest criterion 4020(1) was engaged in this case.

16. The third ground of review complains that the tribunal did not undertake inquiries that the applicant invited the tribunal to undertake.  But there is no obligation on the tribunal to undertake any inquiries at all except in the very limited circumstances identified in Minister for Immigration v SZIAI (2009) 83 ALJR 1123. In any event, the tribunal said this:

    The tribunal has considered the applicant’s request to verify the financial documents but decided not to do so because the issue before the tribunal is not whether the applicant has the funds to support her study in Australia but whether, in the past, she had given or caused to be given information that was false or misleading or a bogus document.

17. The tribunal’s approach was entirely correct.  The tribunal’s finding that the applicant gave with her visa application financial documents relating to Mahinda Paul Singh

RECORDED :  NOT TRANSCRIBED

1. I intend to complete the judgment without an interpreter.

2. The finding by the tribunal that the applicant gave with her visa application financial documents relating to Mahinda Paul Singh that were false was open to the tribunal on the evidence before it.  The tribunal’s determination that the documents were bogus was open to the tribunal on the evidence before it.

3. No jurisdictional error is demonstrated by the application. 

4. In those circumstances, the amended application filed on 7 October, 2014 is dismissed with costs.

RECORDED  :  NOT TRANSCRIBED

1. Order that the applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6646.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 28 November 2014.

Associate: 

Date:         12 December 2014