Shaik v Minister for Immigration

[2016] FCCA 753

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHAIK v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 753

Catchwords:
MIGRATION – Judicial review of Tribunal decision affirming delegate’s decision not to grant Applicant a Skilled visa – whether Applicant provided false and misleading information within meaning of PIC 4020 – whether circumstances justify waiver – whether Applicant had relevant Skills assessment – no jurisdictional error – application dismissed.

Legislation:

Migration Regulations 1994 (Cth), PIC4020 of sch.4, cl.485.224 of sch.2, cl.485.221(1) of sch.2

Cases cited:
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42

Applicant: KALEEM UDDIN SHAIK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2241 of 2014

Judgment of: Judge Jones

Hearing date: 8 March 2016

Date of Last Submission: 8 March 2016

Delivered at: Melbourne

Delivered by: Judge Harland (on behalf of Judge Jones)

Delivered on: 6 April 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr Day

Solicitors for the Respondents: DLA Piper Australia

ORDERS

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

2. The Applicant’s application for judicial review is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2241 of 2014

KALEEM UDDIN SHAIK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and Background

1. This is an application for judicial review in relation to a decision of the then Migration Review Tribunal (“the Tribunal”), dated 13 October 2014, affirming a decision by a delegate of the Minister for Immigration and Border Protection not to grant the Applicant a Skilled (Provisional) (Class VC) visa (“the visa”). 

2. It was a criterion for the grant of the visa that the Applicant satisfy Public Interest Criterion (“PIC”) 4020 of Sch.4 to the Migration Regulations 1994 (Cth) (“the Regulations”): cl.485.224 of Sch.2 to the Regulations.

3. PIC 4020 of Sch.4 to the Regulations required relevantly 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 …, 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.

   … 

   (4) the Minister may waive the requirements of any or all the paragraphs (1)(a) or (b) and subclause (2), if satisfied that:

   (a) compelling circumstances that affect the interest of Australia; or

   (b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permit 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.

4. The Applicant did not provide any documents with his visa application, however he indicated in the application form that he had applied for a skills assessment, and provided a reference number for a purportedly successful skills assessment (CB8).  By email, dated 17 February 2002, the Department of Immigration and Border Protection (“the Department”) wrote to the Applicant, inviting him to comment on information that he was being assisted by S & S Migration, who have been found to have provided false and misleading information in the past, and that the Trade Recognition Australia (TRA) had no record of the Applicant’s skill assessment (CB13-14).  The letter noted that the Applicant had not appointed S & S Migration as his agent, but that a file with the Applicant’s detail had been found at the S & S Migration offices.

5. The Applicant then appointed a Migration Agent, and a request was made by the agent for an extension of time to respond to the Department’s email was granted (CB16-17).  However, the agent subsequently advised the Department, in an email dated 2 July 2012, that he had received no instructions from the Applicant and could not assist further (CB25).  The delegate made a decision on 2 July 2012, refusing the Applicant’s visa application (CB30). 

6. The delegate found that the TRA had confirmed that they did not provide the Applicant with the reference given by him on the application form, and had not provided the Applicant with a skills assessment. The delegate found that the Applicant’s statement on his visa application was false or misleading, and that the Applicant did not satisfy PIC 4020 of Sch.4 to the Regulations. The Applicant applied to the Tribunal for a review of the delegate’s decision on 16 July 2012 (CB41). He provided a copy of the delegate’s decision record along with his application and was represented by a Migration Agent.

7. On 28 March 2014, the Tribunal emailed the Department asking for evidence of the correspondence between the Department and TRA, and evidence of the link between the Applicant and S & S Migration, which had been relied on by the delegate in this and other cases (CB66).  This information was provided by the Department by emails in April and July 2014 (CB85-86).  The Department provided the evidence from the TRA, but did not provide any evidence about the documents found at the offices of S & S Migration, and stated that this evidence was never made available to the delegate. 

8. By letter, dated 28 April 2014, the Tribunal invited the Applicant to comment on or respond to information (CB67-69).  The information which was put to the Applicant was, in summary, that:

   a)the TRA had no record of providing the skills assessment referred to in the visa application;  and

   b)documents or information relating to him were located in the office of S & S Migration, who had been found to have lodged applications to the Department that contained false or misleading information. 

9. The Applicant’s Migration Agent responded to the letter on 21 May 2014, with written submissions and supporting documents. This response commences at CB71.  At CB72 the submission provides as follows: 

   5.  The review applicant does not deny he sought the professional assistance of S&S Migration.  He does deny that he knowingly agreed to make an application for a visa for which he did not satisfy grant requirements and that this visa application was based on a false TRA skill assessment. 

   9.  After completing Certificate IV in Financial Services [Accounting] the review applicant attended the office of S&S Migration. In conference he advised S & S Migration that he wanted to transfer to an education institution where he could complete a bachelor of accounting that would help him in his desire to become either a CPA or Chartered Accountant.

   10.    During his conference with the representative of S & S Migration he was advised that he did not need to hold a student visa. He was advised he could apply for a visa that he now knows was a sc 485 visa to which he was not entitled, that would allow him to work and/or study. On this advice the review applicant instructed S&S Migration to carry out this work.  This is what happened.

   …

   12.    The review applicant has applied to the TRA for a skill assessment in the occupation of cook and does have a successful skill assessment.  The review applicant agrees he his application [sic] and subsequent valid skill assessment was based on incorrect information.

   13.    The review applicant agrees that he does not have a valid skill assessment.

   14.    The application was lodged for him by S & S Migration and he was not aware of the details of his application.  He denies that he was a willing and knowing partner to the actions of S & S Migration. However he now also understands that he is legally responsible for the information provided to relevant authorities, including TRA, on his behalf by S & S Migration. 

10. The Applicant attended a hearing before the Tribunal on 8 October 2014 (CB93).  At the hearing, the Applicant gave the same account as set out in his written submissions.  Relevantly for this proceeding, the Applicant informed the Tribunal that he knew S & S Migration were going to apply for skilled visa, and paid them specifically for that service.  At paragraph 15 (CB102) the Tribunal records:

    “… Mr Shaik told Mr Singh that he had obtained a Bachelor of Commerce in India and he wanted advice about becoming a Chartered Accountant or a Certified Practising Accountant in Australia. Mr Shaik took his passport, his Certificate IV and Bachelor certificates to the meeting with Mr Singh. During the meeting Mr Singh took a copy of the educational certificates and Mr Shaik’s Indian passport.  Mr Singh told Mr Shaik that he did not need to study and that he could wait until near the expiry of his student visa and then Mr Singh would apply for a skilled visa for Mr Shaik. Mr Singh stated that Mr Shaik could wait until near the expiry of the student visa to apply for the skilled visa and once Mr Shaik had the skilled visa he could study and work as an accountant.  Mr Shaik could not recall if Mr Singh told Mr Shaik this was a sub class 485 visa, Mr Singh did tell Mr Shaik it was a skilled visa. Mr Singh told Mr Shaik that after Mr Singh applied for the visa that Mr Shaik has to pay a fee of $2000 to Mr Singh.  Mr Shaik did not pay any money to Mr Singh at the first meeting.  Mr Singh told Mr Shaik that Mr Singh would lodge the paperwork with the department. Mr Singh told Mr Shaik that after the visa application form was lodged Mr Shaik should wait for the Department to reply and then Mr Shaik would need to complete the English language exam.”

11. At paragraph 17 (CB102), Mr Shaik confirmed to the Tribunal, contrary to the submissions made on his behalf, that he did not have a skills assessment from TRA as a cook.  Turning to the decision of the Tribunal, the Tribunal at paragraph 20 of its decision record (CB103), accepted the Applicant’s account of events in relation to his dealings with S & S Migration and the lodgement of his visa application.

12. The Tribunal found at paragraph 21 (CB103), based on the delegate’s decision record, that the Department made inquiries about the skills assessment cited in the application form and was advised by TRA that they had no record of the reference number given in the application and had no record of giving the Applicant a skills assessment.  The Tribunal noted the Applicant’s own evidence that he had not applied for a skills assessment and did not have a skills assessment. 

13. At paragraph 22 (CB103), the Tribunal concludes as follows:

    On the evidence available, the Tribunal finds that the applicant stated in his visa application form that his nominated occupation was cook and the relevant assessing authority was TRA and that he had a skills assessment on 19 August 2010 with a reference/receipt number of TRA 10/362774186.  The Tribunal considers that the TRA reference number and date constitute information that is false or misleading in a material particular within the meaning of PIC4020(5) as the Tribunal is satisfied from the advice from TRA and Mr Shaik’s evidence, and the Tribunal finds that the TRA did not provide the applicant with a skills assessment with the reference number TRA 10/362774186 and at the time of application TRA had never provided the applicant with any skills assessment. Further the Tribunal is satisfied that this information was false or misleading at the time it was given, as required by PIC4020(5)(a).  The Tribunal is also satisfied that the information is relevant to the requirement in cl.485.221 that the applicant has a suitable skills assessment at the time of decision, as required by PIC 4020(5)(b).

14. The Tribunal accepted at paragraph 26 of the decision record (CB104) that the Applicant was not aware of the false information given in the visa application, but relying on the authorities in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 (“Trivedi”), it found that it was not necessary for the Applicant to know for the false information for PIC4020 of Sch.4 to the Regulations to be engaged.

15. The Tribunal stated at paragraph 26 (CB104):

    The Tribunal finds that the applicant has ‘given or caused to be given’ this false or misleading information regarding the TRA skills assessment to the Minister or a relevant officer by causing a visa application to be lodged in his name along with his other personal information, in which this false or misleading information regarding the skills assessment was contained.  The Tribunal finds that Mr Singh was the agent of Mr Shaik and that when Mr Singh lodged the visa application he did so as Mr Shaik’s agent.

    Mr Shaik engaged Mr Singh to lodge the visa application on his behalf and paid Mr Singh a fee for this service and knew the visa application was made.  The Tribunal accepts that Mr Shaik was not aware of the information included in the visa application form because he left it in the hands of Mr Singh to complete the visa application form and Mr Shaik did not see the form or ask to see the completed form lodged on his behalf.

    Section 98 provides that a visa applicant who does not fill in his or her own application form will be taken to have done so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.  Therefore the Tribunal is satisfied that the applicant is taken to fill in the application form by causing Mr Singh to fill it in on his behalf.

    …

16. The Tribunal then proceeded, in its decision record, to consider whether it should waive the requirements of PIC 4020(1) of Sch.4 to the Regulations at paragraphs 28 to 31 of its decision (CB105) but was not satisfied that the relevant circumstances allowing for waiver existed. The Tribunal concluded at paragraph 32 that the Applicant did not satisfy PIC 4020 of Sch.4 to the Regulations as required by cl.485.224 of Sch.2 to the Regulations.

17. At paragraph 28 (CB105), the Tribunal referred to the provisions in PIC 4020(4) of Sch.4 to the Regulations for waiver, and noted at paragraph 29 (CB105), that Mr Shaik made no specific submissions in relation to the provisions relating to waiver. Mr Shaik’s representative is recorded as stating that Mr Shaik went to a firm being an authorised Migration Agent and trusted them, and that Mr Shaik stated that he worked sometimes in Australia, that his family reside in India and that he does not have a partner.

18. At paragraph 30 (CB105), the Tribunal stated that it had considered Mr Shaik’s evidence and, whilst it was sympathetic to his circumstances that he now found himself in, such that he cannot pursue his goal to be an accountant in Australia at the current time and that he relied on a registered Migration Agent to assist him to remain in Australia, it was not satisfied that Mr Shaik’s personal circumstances constituted circumstances that affect the interests of Australia or are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen justifying the grant of the visa.

19. The Tribunal then turned to consider a separate requirement for the grant of the visa, namely, the criterion set out in cl.485.221(1) of Sch.2 to the Regulations (CB105-106).  This criterion required that the Applicant’s skills had been assessed as suitable for the nominated skilled occupation by a relevant assessing authority.  The Tribunal found at paragraph 36 (CB105-106), that the Applicant’s evidence to the Tribunal was that he did not have a skills assessment and he has not had a skills assessment undertaken by the TRA.

20. Not unsurprisingly, the Tribunal found that the Applicant could not satisfy the requirements under cl.485.221(1) of Sch.2 to the Regulations for the grant of the visa. Turning to the judicial review, in his application for judicial review the Applicant specified as his grounds for review as follows:

    The Migration Review Tribunal on 14 Oct 2014 [sic] made a jurisdictional [sic] error when it affirmed a decision of [sic] delegate of the Minister for Immigration and Border Protection refusing to grant me a skilled (residence) (class VB) 885 visa.

21. As the Applicant was self-represented, I explained to him the nature of judicial review and, in particular, that the Court’s function was not to engage in a merits review or to decide whether he should be granted the visa he sought.  Rather, the Court’s function was to examine the decision of the Tribunal and decide whether the Tribunal had engaged in jurisdictional error or, to put it another way, serious legal mistake.  I took the Applicant to his grounds of application and asked him why he said the Tribunal decision was wrong.

22. His submissions were brief. They were that he did not tell S & S Migration to apply for the occupation of cook.  I am not satisfied that the Applicant’s grounds for judicial review give rise to jurisdictional error on the part of the Tribunal.  The Applicant does not deny that he knew he was applying for a skilled visa.  He does say that he had no knowledge of the fact that his application contained information that was false or misleading. 

23. However, having regard to the judgment of Buchanan J (with whom Allsop CJ and Rangiah J agree) in Trivedi, it is not necessary that the Applicant was knowing or complicit in the deceptive character of the information which was furnished.  At paragraph 49, Buchanan J stated:

    “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 attention, 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 application 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 intent of the provision.”

24. The Tribunal found that the TRA assessment contained in the Applicant’s application for the visa was purposely untrue and that it had a falsity about it. It was not required, therefore, to undertake an analysis as to whether the Applicant knowingly provided the information, or was somehow complicit in the provision of that false or misleading information. The Applicant further accepted that he had no skills assessment and had not applied for one through the TRA. Consequently, another independent criterion which the Applicant was required to comply with (cl.485.221(1) of Sch.2 to the Regulations) was not satisfied, and this was noted by the Tribunal.

Conclusion

1. For the reasons given in this judgment I find that the Tribunal’s decision does not disclose jurisdictional error.  Consequently, I would dismiss the application for judicial review with costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 6 April 2016