Sapkota v Minister for Immigration

[2014] FCCA 2653

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAPKOTA v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2653

Catchwords:
MIGRATION – Application for judicial review of MRT decision – applicant’s agent forwarding application containing untrue assertion applicant had undertaken a trade recognition assessment – whether applicant aware of untrue assertion – whether Tribunal fell into jurisdictional error – error not established.

Legislation:  

Migration Act 1958 (Cth), s.98

Migration Regulations 1994 (Cth), cls.485.221, 485.224

SZGJO v Minister for Immigration and Citizenship [2005] FMCA 1349 SZMME v Minister for Immigration and Citizenship [2009] FMCA 323
Vyas v Minister for Immigration and Citizenship [2012] FMCA 92
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
Sran v Minister for Immigration [2014] FCCA 37

Applicant: KIRSHNA PRASAD SAPKOTA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2290 of 2013

Judgment of: Judge Burchardt

Hearing date: 5 September 2014

Date of Last Submission: 5 September 2014

Delivered at: Melbourne

Delivered on: 26 November 2014

REPRESENTATION

Applicant: In person

Counsel for the First Respondent: Mr. Rebikoff

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application filed 20 December 2013 is dismissed. 

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 2290 of 2013

KIRSHNA PRASAD SAPKOTA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 3 December 2013.  The Tribunal affirmed the decision of a delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) Visa.  The grounds of application are as follows:

   “I am not happy with the decision made by Tribunal. 

   I have requested to waive my 4020 as I have submitted all the information that they denied” 

2. The affidavit filed in support of the application relevantly states:

   “All the information that went wrong to Immigration was Because of my migration agent that is why they should have waived my 4020 and I had given them all the supporting document as well”

3. For the reasons that follow, I do not think the applicant’s criticisms of the Tribunal’s decision are made out, and it follows that the application will be dismissed with costs. 

The Materials before the Tribunal

1. The applicant has not filed any written submissions, although I will return to his oral submissions in due course.  That is not a criticism, given his difficulties with English and lack of legal training.  Nonetheless, in order to understand the applicant’s case it is necessary to at least briefly traverse the material in the Court Book (“CB”).

2. The applicant applied for a Class VC, subclass 485 visa as a skilled graduate.  The application runs from CB1-10. 

3. At CB8, relevantly, the application form noted the requirement for a skills assessment with a relevant assessing authority, and the applicant nominated his occupation as cook, and asserted the name of an assessing authority as Trades Recognition Australia and a Date of Skills Assessment of 16 November 2010, together with a reference number.  He confirmed having a Diploma in Hospitality Management on the same page.

4. At CB11 there is an Operation Danube-created document which shows that the applicant’s skills assessment was not verified, and:

   “This case was identified for checking as DIAC Investigators found records linking this client’s current 485 application to a business called S and S Migration, who were been (sic) found to have lodged a number of applications to the Department containing false and misleading information.”

5. Under the heading Outcome on the same page it was recorded:

   “On 20 December 2011 DIAC were advised by TRA that TRA held no record of this client.  The reference number they provided could not be verified as it did not exist on TRA systems, and they had no record of this client ever holding a skills assessment.”

6. The applicant was invited by the Department to comment (CB12-15). 

7. On 16 April 2012, the delegate of the first respondent who considered the matter notified the applicant of the refusal of his visa application.  The decision record is at CB23-28.  I note that the applicant had not replied to the invitation to comment (CB25).  Scarcely surprisingly, the erroneous Trades Recognition Australia assessment assertion was at the heart of the reasons for the rejection.  I note that at CB26 the delegate recorded that the provision of false and misleading information meant that the applicant failed to meet Public Interest Criterion (“PIC”) 4020.  The decision also noted:

   “S98 of the Migration 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. 

   Whilst S and S Migration are not declared as agents in relation to your 485 application, given records of this application were found on their premises I consider that they assisted you in the lodgement of this application.  The operation of s98, in line with policy advice, is that you are still legally taken to have completed the form even if it is completed on your behalf. 

   You did not respond to the invitation and you have not raised any compassionate or compelling circumstances for the purpose of PIC 4020(4) above.  Therefore the requirements of PIC 4020(1) have not been waived. 

   As you do not meet PIC4020(1), you cannot meet the requirements of Regulation 485.224, and therefore you do not meet the requirements for a grant of a VC-485 Skilled Graduate Visa.” 

8. The applicant applied to review the decision to the Tribunal.  In due course, his migration agent at the time on 13 November 2013 wrote to the Tribunal on his behalf (CB54-57).

9. Relevantly, the letter stated (CB54):

   “…(the applicant) was approached by staff of S & S Migration who were distributing leaflets near the train stations with a promise of getting work permits.  When Krishna Sapkota visited S & S Migration, he was promised a 4-5 year work permit as he was a skilled Cook.  Krishna was encouraged by the prospect of being able to gain a work permit and signed up with S & S Migration.  He was completely unaware of the fact that S & S Migration had lodged a 485 subclass application on his behalf and provided incorrect details in the application for every single question including his contact details.  When he heard from other friends that DIBP had raided the office of S & S Migration for providing incorrect information in the visa applications lodged on behalf of applicants, he contacted DIBP about his visa status to find out that his application was refused for not meeting PIC 4020.”

10. The letter continued (CB55):

    “The persons representing S & S Migration had taken the Passport copy and other details from Krishna Sapkota and lodged the 485 visa subclass application without the applicant permission to lodge the visa application, complete understanding of the application and consequences of lodging such an application.  He had no role in providing any information of the application.  Krishna Sapkota is not aware of the Migration Law in Australia and his English Language ability is limited.  He relied on the advice of S & S Migration who he understood was a Registered Migration Agent.  Krishna Sapkota is a professional Cook and has been working for an established restaurant in Melbourne for the past three years.”

11. Having dealt with PIC 4020, waiver was sought on the basis that the restaurant where the applicant worked relied upon his cooking skills to the extent that if he was not allowed to work for the business it would have a grave and direct impact on the revenue the restaurant raises.  It was asserted (CB56):

    “There is a severe shortage of skilled cooks who can prepare authentic food from India in Melbourne and training cooks to prepare authentic Indian food according to the tastes required takes a long time, which the restaurant cannot afford.”  

12. Supporting documentation was provided from a number of restaurants.  I note that the letter from Mirch Masala does not assert in terms the matters I have just set out, but rather it constitutes a glowing reference (CB67).  A further submission was forwarded on the applicant’s behalf (CB68-70).  This set out further details of the desirability of the applicant remaining at Mirch Masala, and a supporting statement from Mirch Masala is at CB71-72.  This did support the thrust of the applicant’s case, and indeed the terms in which it is expressed appear identical to those in the applicant’s submission. 

The Tribunal’s Decision

1. The Tribunal traversed the application for review and evidence and claims at CB82-84.  At paragraphs 7-9, the Tribunal referred to the applicant’s subclass 485 application and noted that the application form stated that the applicant had received a skills assessment from Trades Recognition Australia on 16 November 2010 and noted a reference number for that assessment.  The Tribunal also noted that the form further stated that the applicant had not received any assistance in completing it. 

2. The Tribunal then referred to the Departmental investigation, which I have already referred to, and the process whereby the delegate in due course reached the decision which I have already discussed. 

3. The Tribunal traversed the review application and the written submissions filed in support of it, which I have already outlined above, and the evidence filed in support.  Nothing in my view turns on these matters, as the Tribunal clearly correctly recorded the matters to which it referred. 

4. At CB87-91, the Tribunal canvassed the matters that had occurred at the Tribunal hearing.  At paragraphs 34-36 (CB87) the Tribunal recorded:

   “34.  In relation to his visa application, the applicant confirmed that a migration agent had completed and lodged an application for a subclass 485 visa with the Department on 25 March 2011 on his behalf. 

   35.  The applicant informed the Tribunal that he had approached Firm Z as a result of picking up a pamphlet that was being distributed at the train station by this business.  As a result, he went to the offices of Firm Z where he filled out a form, and where he met someone by the name of ‘Jeetender’ (hereafter referred to as ‘Mr X’), whose surname he could not recall. 

   36.  The applicant stated that he explained to Mr X the circumstances surrounding the gradual breakdown of his marriage since 2009, the fact that his student visa was due to expire, and his experience as a cook in Australia.  Mr X informed the applicant that he was eligible, and could apply, for temporary residence on this basis.  As a result, the applicant provided his passport to Mr X so that he could obtain a bridging visa for the applicant and a visa that would allow the applicant to work in Australia.”

5. The applicant confirmed to the Tribunal that it has been his expectation that ‘Mr X’ would complete the visa application form and get a visa for him.  He did not ask to see the completed visa application form before it was lodged online.  He merely received a telephone call from ‘Mr X’ telling him that this had been done (paragraph 38, CB88).

6. At paragraphs 41-42 (CB88) the Tribunal recorded:

   “41.  The Tribunal noted that the visa application form that had been lodged with the Department on 25 March 2011 had answered “Yes” to the question regarding whether the applicant had applied for a skills assessment from Trades Recognition Australia.  It also stated that he had a skills assessment dated 16 November 2010, and set out the reference number for this skills assessment. 

   42.  The applicant acknowledged that this information was set out in the visa application, but he stated that he was unaware of its inclusion in this document.  He also confirmed that this information regarding his skills assessment was incorrect, because he had never applied for a skills assessment.  However, the applicant stated that he had not instructed Mr X to include this false information in his visa application form, and he was not aware that Mr X had done so.”

7. The Tribunal went on to canvass with the applicant PIC 4020. The Tribunal explained the terms of s.98 of the Migration Act 1958 (“the Migration Act”) and the application of general principles of agency to his circumstances, particularly in the terms of the findings of courts in SZGLO v Minister for Immigration and Citizenship [2005] FMCA 1349 and SZMME v Minister for Immigration and Citizenship [2009] FMCA 323.

8. The Tribunal also traversed with the applicant the fact that his employment reference from Mirch Masala restaurant was almost two years old and “that it did not identify the impact upon the business in a manner that might come within the terms of subclause 4020(4)”(paragraph 48, CB89).

9. When the Tribunal gave an oral invitation to comment and respond to information, most particularly the matters arising out of the conduct of the prior migration agent, the applicant asked to reply in writing.  He did so in the written submission dated 29 November 2013 set out at CB68-70 and the associated subsequent later documentation from Mirch Masala.

10. The Tribunal’s findings and reasons are at CB92-112. The Tribunal noted initially that cl.485.221 of the Migration Regulations 1994 (“the Regulations”) requires that the skills of an applicant must have been assessed by the relevant assessing authority as suitable for the nominated occupation. The Tribunal found at paragraph 70 (CB93) that:

    “70.  Accordingly, the Tribunal finds that the applicant’s skills have not been assessed by the relevant assessing authority as suitable for his nominated skilled occupation at the time of decision.”

11. That finding is incontrovertible given that the applicant himself conceded he had never undertaken an assessment and that Trades Recognition Australia confirmed that this was the case.

12. The Tribunal said at paragraphs 71-72, CB 93:

    “71.  The Tribunal has considered whether it should allow the applicant additional time in which to apply for and obtain a ‘skills assessment’ from Trades Recognition Australia.  In doing so, the Tribunal notes that neither the applicant, nor his representative, has given any indication that the applicant has applied for a ‘skills assessment’.  In addition, the Tribunal observes that even if it were to grant the applicant additional time in which to do so and he were to obtain a favourable skills assessment, this would not overcome the issues discussed below in respect of clause 485.224. 

    72.  The Tribunal notes that the Courts have held that it is not required to defer its decisionmaking (sic) processes.  As a result, having regard to all the circumstances of this particular case and for the reasons set out in this decision record, the Tribunal does not propose to defer its decisionmaking (sic) any further to allow the applicant additional time in which to apply for an (sic) obtain a favourable skills assessment for his nominated skilled occupation.”

13. The Tribunal then referred to cl.485.224 of the Regulations which brings into play, relevantly, PIC 4020. The Tribunal set out PIC 4020 at paragraph 76, CB94. This deals with the provision of documentation that is bogus or information that is false or misleading in a material particular in relation to the application for a visa and subclause (4) deals with the exemption relating to compelling circumstances.

14. The Tribunal considered authority in some detail and considered this issue itself in some detail.  Given that the original application form erroneously asserted that the applicant had conducted a Trades Recognition Assessment when he had not, the Tribunal’s conclusion that the applicant had provided false and misleading information is unsurprising.

15. At paragraph 102 CB100, the Tribunal started to address the question as to whether it could properly be said that it was the applicant who had given the false and misleading information in the circumstances whereby the form was completed by S and S Migration.  The Tribunal found that the applicant had engaged ‘Mr X’ to complete the form for him and paid $2000 in the expectation that a visa would be obtained to resolve his immigration status even though he may not have known that the false information was contained in it.  The Tribunal set out an extract from Vyas v Minister for Immigration and Citizenship [2012] FMCA 92 in which Federal Magistrate Driver, as he then was, found at [65]:

    “The provision of a document that is bogus or false or misleading information would, left unchecked, enable a person who falls short of the visa criteria nonetheless to be granted a visa.  In this respect, it does not matter whether the document is provided by the applicant knowingly or unwittingly.  Either way, a prohibition on the provision of relevantly defective documents is required.  Otherwise, undeserving applicants could receive a visa.”

16. The Tribunal went on to quote from SZGLO v Minister for Immigration and Citizenship at paragraph 109 (CB101-102), which decision was upheld on appeal in the Federal Court.

17. The Tribunal further found that in the circumstances described, there existed a relationship of agency between the applicant and ‘Mr X’ and S and S Migration (See paragraphs 112-114, CB102-103.)  At paragraph 115 (CB 103), the Tribunal found that the applicant had indeed given or caused to be given false or misleading information in a material particular in his application.

18. The Tribunal went on to consider the compelling circumstances exemption in paragraph 4020(4).  The Tribunal’s reasoning about the exemption was detailed and considered and in my view the finding that the applicant did not disclose circumstances of compelling or compassionate nature to justify the waiver of PIC 4020 was clearly open to it.

The submissions made at Court

1. The applicant, who represented himself together with the assistance of an interpreter, said that he wanted “the 4020 to be removed”.  He said he was still working at the restaurant and his employer wants to help him with his visa.  He said that the Trades Recognition Assessment was a fake and the people who had applied had run away.  He said he had been working at the restaurant for four years and “needs his 4020 removed”.

2. Counsel for the first respondent essentially relied upon the written submissions made.  He submitted the ground that the applicant was unhappy with the Tribunal’s decision was simply merits review.

3. Counsel submitted there was analysis of the matter by the Tribunal and there were two reasons why the subclass 485 visa was not granted.  The first was the lack of skills assessment and the second was the failure to satisfy PIC 4020.

4. False information was provided, it was submitted, even if the applicant was not aware of it.  Emphasis was placed on the decision of the Full Court of the Federal Court in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42.

Consideration

1. Regrettably for the applicant, the decision in this case may be stated relatively shortly.  First, on any view, the application for the subclass 485 visa could not succeed because the applicant had not conducted a Trades Recognition Assessment as the regulations plainly required.  The Tribunal’s decision not to give him more time to do so was clearly properly open to it in the circumstances described and does not reveal jurisdictional error.

2. Further, in my opinion the Tribunal’s decision that the applicant bore responsibility for the untrue statements in the application albeit lodged by S and S Migration, (and assuming that the applicant was not directly personally aware of the untruthfulness of it), nonetheless also was clearly open to it.  The applicant, as the first respondent’s written submissions point out, was clearly aware that the application was being made and was content for the agent to complete the application without further input from him.  In Sran v Minister for Immigration [2014] FCCA 37 at [44]-[45], Judge Nicholls in what in my view are relevantly indistinguishable circumstances, came to the conclusion that this was sufficient to ground an agency agreement between the applicants and their migration agent. Further, in my view, the terms of s.98 of the Migration Act and the applicability of Australia’s law relating to agency would likewise have justified that conclusion.

1. In the circumstances, the applicant’s contention that things only went wrong because of what his agent did is beside the point.  He was happy to allow the application to be made by the agent without himself in any way directly supervising it.

2. I do not accept that the Tribunal fell into jurisdictional error in forming the conclusion that it did.  

3. Further, the Tribunal’s finding in relation to the compassionate grounds exemption was at the very least open to it.

Conclusion

1. The applicant’s case cannot be made out.  While views might differ as to the Tribunal’s findings in relation to the agency point and the compelling circumstances point, on any view of the matter, the applicant could never get over the failure of not having conducted a Trades Recognition Assessment and as I have already indicated, the Tribunal’s decision in this regard is unimpeachable.  Likewise, for the reasons already expressed, the Tribunal’s decision not to extend further time to the applicant to try and obtain such an assessment cannot be challenged.  Thus, on any view, there is a basis upon which the Tribunal’s decision can be upheld in any event.  The application will be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  26 November 2014