Sahota v Minister for Immigration

[2015] FCCA 2788

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAHOTA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2788

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal erred in findings in relation to a bogus document – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.97, 353, 359A, 360

Migration Regulations 1995 (Cth), reg.2.26B

Batra v Minister for Immigration and Citizenship (2013) 212 FCR 84; [2013] FCA 274
Kaur v Minister for Immigration and Border Protection [2014] FCA 281
Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16
Singh v Minister for Immigration and Citizenship & Another [2013] FMCA 243
SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58

Applicant: SATPAL SINGH SAHOTA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 266 of 2014

Judgment of: Judge Barnes

Hearing date: 1 October 2015

Delivered at: Sydney

Delivered on: 1 October 2015

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

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

2. The Application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 266 of 2014

SATPAL SINGH SAHOTA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 3 January 2014.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Skilled (Provisional) (Class VC) visa. 

2. The Applicant, a citizen of India, first arrived in Australia in 2007 as the holder of a student visa.  He applied for a Skilled (Provisional) (Class VC) visa, Subclass 485, in 2010.  In support of that application he provided the Department with a skills assessment from Trades Recognition Australia (TRA) dated 11 March 2010 indicating that his skills had been assessed as suitable for the nominated occupation of hairdresser.

3. As the delegate noted, the skills assessment was obtained on the basis of a work reference from Zane Hair Dezign (sic) stating that the Applicant had completed over 900 hours of work as a hairdresser between specified dates in July 2008 and October 2009.

4. While his application was being processed, the Applicant was interviewed by the Department, which raised with him the fact that the owner of the salon, a Mr Zannettides, had denied that he had worked at the salon and had ultimately denied providing the work reference submitted to TRA.

5. The delegate refused the application, finding that the work reference provided to TRA contained a false or misleading statement, that the skills assessment was obtained because of that false or misleading statement and that hence the skills assessment (which was provided to the Department) was a bogus document within the meaning of s.97 of the Migration Act 1958 (Cth) (the Act). In those circumstances, the delegate found that the Applicant did not satisfy the requirements of Public Interest Criterion 4020(1) (PIC 4020) which was a criterion that applied to the class of visa for which he had applied (see cl.485.224 of Schedule 2 to the Migration Regulations).

6. The Applicant sought review by the Tribunal.  He attended a Tribunal hearing.  The only evidence of what occurred at the hearing is the Tribunal’s account in its reasons for decision. 

7. In its reasons for decision, the Tribunal stated that the critical issue was whether the Applicant met PIC 4020, as required by cl.485.224 of Schedule 2 to the Migration Regulations. PIC 4020 relevantly provided that there be no evidence that the applicant had given or caused to be given to the Minister or an officer, a bogus document or information that was false or misleading in a material particular in relation to the application for a visa. The Tribunal pointed out that this requirement could be waived in certain compelling or compassionate circumstances. Bogus document is defined in s.97 of the Act as follows:

   97 Interpretation

   In this Subdivision:

   …

   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.

8. The Tribunal set out information about the background to the review, including material in the departmental file, the TRA assessment and the Applicant’s written claims about his work as a volunteer hairdresser from July 2008 to October 2009 and his work thereafter as a car washer and a truck driver. The Tribunal had regard to information on the department’s file indicating that a departmental officer had interviewed Mr Zannettides on two occasions in November 2011 and that Mr Zannettides did not recall the Applicant’s name; stated he had had only one student working for him and that that person was there for only three to six months for about three days a week; did not admit to signing the Applicant’s work reference; indicated that the signature on the work reference was different to his own signature; and ultimately said that the Applicant was not employed by him and that he did not write the reference for the Applicant.

9. The Tribunal also referred to information about the departmental interview with the Applicant in which Mr Zannettides’ denial that the Applicant had worked for him was put to him for comment. The Tribunal recorded that it had also raised this evidence with the Applicant under s.359A of the Act and referred to the Applicant’s response, which was, in essence, that the TRA had approved the skills assessment so he did not know what the matter was, that he worked at the salon as a volunteer and that while the signature may be different, it was not hard for a person to change his or her signature if in trouble. He had also expressed some concern that the Tribunal may have been taking into account another case not relevant to the particular visa application.

10. The Tribunal set out the Applicant’s evidence at the hearing in some detail.  It recorded that it put to him relevant issues and its concerns in relation to aspects of his claims.  

11. In its findings and reasons the Tribunal considered whether the Applicant had given or caused to be given a bogus document or information that was false or misleading in a material particular.  It stated that it was particularly concerned about a number of factors and concluded that it found the Applicant’s oral evidence about his alleged work at Zane to be particularly unpersuasive for a number of reasons, which it set out.  For the most part, these reasons related to the Applicant’s evidence at the Tribunal hearing. 

12. The Tribunal took into account the fact that at the hearing the Applicant could not tell it when he worked at Zane, the name of the business, the surname of the owner or the street in which the salon was located.  The Tribunal also found that his evidence about the transport he relied on to get to work at the salon was inconsistent in that he had first said his friend, a taxi driver, drove him but later indicated he caught the train.  In addition, the Tribunal found the Applicant’s oral evidence that he walked from Newtown station to the salon at Maroubra Junction (which the Tribunal observed was a distance of some 10 kilometres) in half an hour to be highly unlikely.

13. The Tribunal was of the view that the Applicant had been unable to provide a satisfactory explanation as to why Mr Zannettides had not provided information to the Department in support of his claims to have worked at Zane.  It found his explanation that Mr Zannettides might have been nervous because the Applicant had worked there voluntarily to be speculative and unpersuasive. 

14. It considered the Applicant’s suggestion that TRA had inquired about the work and was satisfied.  However the Tribunal found the evidence from the departmental interview with Mr Zannettides was more persuasive because it was of the view that if the Applicant did in fact work at the salon as claimed, Mr Zannettides would have informed the Department of this fact.

15. The Tribunal accepted that the Applicant was able to describe some basic hairdressing tasks, but considered that this was information that could be prepared for the hearing even if the Applicant did not do the work.  It considered it highly significant that after allegedly completing 900 hours at Zane, the Applicant then worked as a car washer and a truck driver and relevant that he could not describe his hairdressing course at the hearing.  It also observed that when asked why he did not pursue employment in hairdressing, the Applicant had embellished his evidence about his wages as a car washer.

16. The Tribunal noted that the Applicant appeared to have had dealings with a Mr Singh, to whom he claimed he gave money for assistance in securing a job and in response to the s.359A letter had denied paying Mr Singh to assist him to obtain the work reference. The Tribunal found that it did not have sufficient evidence to make a finding about the reason why the Applicant gave Mr Singh money. However, the Tribunal was of the view that if the Applicant had genuinely completed 900 hours work experience at the salon in the period claimed then Mr Zannettides would have indicated this to the Department.

17. The Tribunal concluded that the “inconsistencies in the applicant’s evidence, his lack of knowledge about the salon, its owner’s surname, its street location and the period in which he claimed he undertook the work” were “highly problematic”. It found that his evidence about his transport to Maroubra to undertake the work was “unreliable and manufactured”. The Tribunal concluded that the Applicant was not a witness of truth and that it could not rely on his evidence. It stated it had taken into account all his evidence asserting that he did undertake the work experience, but on the evidence before it, its finding that the Applicant was not a witness of truth and the fact that Mr Zannettides had not identified him as having worked at the salon as a volunteer, the Tribunal was not satisfied that the Applicant did work at the salon as a volunteer. It was not satisfied that he had completed 900 hours of work experience at Zane Hair Dezign as claimed or that he worked at Zane as a volunteer or in any other capacity.

18. On this basis the Tribunal did not accept that the work reference from Zane Hair Dezign contained truthful information. It found that the reference contained a false statement in that it stated that the Applicant had completed in excess of 900 hours work experience at Zane Hair Dezign. It found that the Applicant’s TRA skills assessment was obtained because of a false or misleading statement in the work reference that the Applicant was employed at Zane and completed in excess of 900 hours work as a hairdresser. It was therefore satisfied there was evidence the Applicant had given or caused to be given to the Minister or an officer a bogus document in relation to his visa application. The Tribunal stated that the bogus document was the TRA skills assessment provided to the Department in relation to the application for the visa. It found that the skills assessment was bogus because it reasonably suspected that it was obtained because of a false or misleading statement (made in the work reference) as provided for in s.97(c) of the Migration Act.

19. The Tribunal concluded that as there was evidence that the Applicant had given or caused to be given to the Minister or an officer a bogus document in relation to the visa application, therefore he did not meet PIC 4020(1).

20. The Tribunal went on to state that it had considered whether PIC 4020 should be waived. It recorded that the Applicant had been invited to provide evidence on the waiver provision but had not availed himself of that opportunity. As there was no relevant evidence before the Tribunal, it was not satisfied that there were any compelling or compassionate circumstances such as to satisfy the waiver requirement in PIC 4020(4).  It found that the Applicant did not satisfy PIC 4020 for the purposes of cl.485.224 and affirmed the decision not to grant him a Class VC visa.

21. The Applicant sought review by application filed in this Court on 6 February 2014.  Initially he was self-represented and relied on an application that contained one ground.  The matter was listed for hearing.  Shortly before the original hearing date the Applicant obtained legal representation.  He filed and now relies on an amended application. The hearing was adjourned.  His solicitors subsequently ceased to act for him and he is once again self-represented.  In these circumstances, although he said he relied on the grounds in the amended application, I consider it appropriate to consider both the originating application and the amended application.

22. The First Respondent prepared submissions addressing the ground in the initial application and supplementary submissions addressing the amended application.

23. The Applicant did not file any written submissions.  He was given the opportunity today to make submissions about the grounds he relied on or any issues he had with the Tribunal decision or procedures.  He took issue with the Tribunal’s failure to accept his claimed work experience and indicated that he would like a rehearing.  He contended that he had had no reason to give a bogus document.  The Applicant’s oral submissions seek impermissible merits review, but do not go to establish any jurisdictional error on the part of the Tribunal.

24. The ground in the original application takes issue with the Tribunal decision, asserts that the reason for the refusal was that the owner of the salon had denied the Applicant worked there, but claims that when the Applicant sought the skills assessment from TRA, the Department of Education, Employment and Workplace Relations inquired of the salon and found “everything all right”. The Applicant claimed that he did not know why the salon owner had denied he worked there and that he believed that the Tribunal had fallen into jurisdictional error by not believing him.

25. As submitted for the First Respondent, this ground takes issue with the Tribunal’s findings and asks the Court to engage in impermissible merits review.

26. The Tribunal findings were not based solely on the owner’s denial that the Applicant worked in the salon. As set out above, the Tribunal found, for the reasons which it gave, that the Applicant was not a witness of truth and that it could not rely on his evidence, which it saw as highly problematic. The Tribunal’s finding in relation to the credibility of the Applicant and its ultimate conclusions were findings that were reasonably open to it on the material before it for the reasons which it gave. More generally, there is nothing in the material before the Court to suggest any failure by the Tribunal to comply with its obligations under s.359A or s.360 of the Act.

27. The Tribunal wrote to the Applicant under s.359A of the Act. It had regard to his response. It invited him to, and he attended, a hearing. The invitation met the necessary statutory requirements and on the Tribunal’s account of the hearing (the only evidence in that respect before the Court) the Tribunal raised with the Applicant issues dispositive of the review in the course of the hearing.

28. As indicated, the Tribunal found that the Applicant was not a witness of truth and therefore it could not rely on his evidence regarding his claimed work experience and that the owner had not identified him as having worked there and consequently it was not satisfied that he had worked at the salon for the required 900 hours. Therefore it found that the work reference was a false or misleading statement. It was open to the Tribunal to then find that it reasonably suspected the TRA skills assessment had been obtained because of a false or misleading statement in the work reference and that hence it was a bogus document within s.97(c) of the Act.

29. Moreover, in circumstances where the Applicant did not provide any evidence in relation to compelling or compassionate circumstances, no jurisdictional error is established in the manner in which the Tribunal dealt with that issue. The ground in the original application is not made out.

30. Ground 1 in the amended application is as follows:

    1. The Second Respondent erred in finding that the information that the Applicant gave to Trades Recognition Australia (“TRA”) for the purpose of a skills assessment pursuant to Clause 485.224 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”) was a bogus document or information that is false or misleading in material particular within the meaning of Item 4020 of Schedule 8 of the Regulations (PIC 4020).

    Particulars

    a) Error in finding that TRA was a relevant assessing authority for the purposes of Clause 485.224 of Schedule 2 of the Regulations at the time the Applicant gave information to it and at the time it purported to issue an assessment of the Applicant’s skills.

    Further Particulars

    (i) TRA was not validly approved as a “relevant assessing authority” at the time the Applicant gave the information which was said to be false and misleading to it or at the time it purported to issue a skills assessment to the Applicant.

    (ii) The subsequent approval of TRA as a “relevant assessing authority” did not validate a previously invalid assessment.    

31. It appears that the amended application was prepared at a time when the Applicant had legal representation.  However this ground proceeds on a false assumption or misunderstanding as to the basis for the Tribunal’s decision.  It addresses the issue of whether a finding that an applicant gave TRA a bogus document or information that was false or misleading in a material particular would be in error in circumstances where TRA was not validly approved as a relevant assessing authority at the time the information was provided to it or at the time that it purported to issue an assessment of the Applicant’s skills.

32. The fundamental difficulty with this ground is that the Tribunal decision was not based on a finding that the Applicant gave or caused to be given a bogus document or information that was false or misleading in a material particular to a relevant assessing authority.  Had that been the case, then the issues raised in ground 1 may have been relevant.  However, as set out in the Minister’s written submissions, there is considerable authority to establish that in such circumstances in applying PIC 4020 the Tribunal would have been entitled to have regard to whether the Applicant had in fact submitted a bogus document or false or misleading information to TRA, regardless of whether TRA was validly appointed at that time (see, for example, Batra v Minister for Immigration and Citizenship (2013) 212 FCR 84; [2013] FCA 274. In that context, it would be relevant that the applicable criterion in cl.485.224, was a time of decision criterion so that the time for determining whether it was applicable to an applicant would be the time of the Tribunal’s decision (in this instance 3 January 2014). By that date TRA had been validly specified as a relevant assessing authority for the purposes of reg. 2.26B of the Migration Regulations 1994 (Cth) (the Regulations), including in relation to persons (such as the Applicant) who applied for a visa before 1 July 2010 (see legislative instrument IMMI 11/068 and Singh v Minister for Immigration and Citizenship & Another [2013] FMCA 243).

1. Moreover, while the Minister subsequently revoked IMMI 11/068 (by IMMI 12/068, commencing on 1 July 2012) the new instrument specified that TRA was a relevant assessing authority for skilled occupations, including the occupation of hairdresser nominated by the Applicant and was stated to apply to visa applicants who applied before 1 July 2010 (such as the Applicant) (see Kaur v Minister for Immigration and Border Protection [2014] FCA 281).

2. However, the short answer to ground 1 is that it misconceives the basis for the Tribunal decision. The document that the Tribunal found was a bogus document was the skills assessment prepared by TRA, not a document given to TRA. All that was necessary in that context was that there be a bogus document, not that the document be issued by or emanate from a relevant assessing authority. In Batra, Murphy J concluded that a skills assessment by TRA submitted to the Department was a bogus document in circumstances where it was based on a false work reference. In that context his Honour considered contentions that it was relevant that TRA was not properly specified as an assessing authority and that on that basis the skills assessment was a nullity and could not be treated as a bogus document.  Insofar as that is the issue intended to be raised by ground 1, his Honour rejected that argument, expressing the view that the fact that the skills assessment was of no legal effect for its specific purposes was immaterial in relation to whether or not it fell within the definition of bogus document (which turned on whether it was a document that was obtained because of a false or misleading statement). The same reasoning would apply in the present case.

3. No jurisdictional error is established either on the basis of ground 1 as pleaded or on the basis that what was intended was to raise a ground of the nature considered in Batra.

4. Ground 2 in the amended application is that the Tribunal erred in finding that the Applicant provided information that was false or misleading. There are two particulars to this ground. First, it is contended that the Tribunal placed “unreasonable and disproportionate weight” on the evidence of Mr Zannettidis in determining that the Applicant provided information that was false or misleading.  Second, that it erred in failing to take into account what is said to be “the bias of any perceived unfavourable evidence” provided by Mr Zannettidis “in regards to self-incrimination” when determining the credibility of Mr Zannettidis. The amended application goes on to provide “Further Particulars” of this aspect of ground 2, consisting of an argument that the Tribunal erred in not taking into account “other reasons” why Mr Zannettidis “may have given contradictory evidence and failed to consider the tax, employment law and workers compensation implications as the reasons” for Mr Zannettidis giving “contradictory evidence.”

5. Insofar as this ground takes issue with the weight the Tribunal gave to the evidence of Mr Zannettidis, the Tribunal’s findings were not based solely on the evidence of Mr Zannettidis. The Tribunal made an adverse credibility finding in relation to the Applicant, based on inconsistencies, lack of knowledge and unreliable and manufactured aspects of his evidence. The Tribunal took into account all the evidence before it, including its finding that the Applicant was not a witness of truth and also the fact that Mr Zannettidis did not identify him as having worked at the salon as a volunteer in not being satisfied he worked at the salon as claimed. The weight given to the Departmental interview with Mr Zannettidis was a matter for the Tribunal.

6. Moreover, the Tribunal was not under an obligation (in the sense of being jurisdictionally obliged) to take into account as a mandatory relevant consideration the alleged “bias” complained of in particular 2(b) to ground 2 or, indeed, the asserted other reasons why a person might give contradictory evidence.  Insofar as this ground may be seen as asserting unreasonableness or irrationality, this is not a case in which irrationality, illogicality, or unreasonableness is established in the manner considered in Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 and elaborated on by the Federal Court in SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58. It cannot be said that no rational or logical decision maker could have arrived at this decision on the same evidence. Beyond this, ground 2 seeks merits review. This ground is not made out.

7. Ground 3 is that the Tribunal erred in finding that the signature on the employment reference dated 6 July 2009 was not that of Mr Zannettidis.  The Tribunal did not make any express finding in relation to the genuineness or otherwise of the signature on the work reference submitted to TRA.  It did note that the information on the departmental file indicated that in an interview with the Department Mr Zannettidis had indicated that the signature on the work reference was different to his own signature, but also took into account that Mr Zannettidis had said he could not recall the Applicant’s name, that the one student who had worked for him was there only three to six months working about three days a week and the fact that he did not admit to signing the work reference, ultimately said that the Applicant was not employed by him and that he did not write the reference. 

8. The Tribunal found this evidence was more persuasive than the Applicant’s oral evidence, which it rejected on adverse credibility grounds, being of the view that if the Applicant did in fact work at the salon as claimed, Mr Zannettidis would have informed the Department. 

9. Insofar as the Tribunal may be seen as rejecting Mr Zannettidis’ evidence that he did not sign the work reference (and the ground is intended to be a “no-evidence” ground) the Tribunal was not obliged to have proper forensic evidence before it before reaching a conclusion in relation to such a matter. The Tribunal is not bound by the rules of evidence (see s.353 of the Act).

10. Moreover, rather than considering the falsity or truth of whether the signature was that of Mr Zannettidis, the Tribunal preferred his evidence that he did not employ the Applicant and that he did not write the reference. Ground 3 discloses no jurisdictional error on the part of the Tribunal.

11. As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.

12. The Applicant has been unsuccessful. The Minister seeks costs in the sum of $6,000. The Applicant told the Court that he was in financial hardship and suggested it would help if the amount could be reduced. However the Applicant’s asserted lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent. Nor am I satisfied that it is such as to warrant a reduction in the amount sought, which is reasonable and appropriate in light of the nature of this and other similar matters. The Applicant’s situation may, however, be a matter to be taken into account by the Minister in determining when and how to recover such costs.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  13 October 2015