SHARMA v Minister for Immigration
[2014] FCCA 2821
•9 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHARMA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2821 |
| Catchwords: MIGRATION – Skilled visa – refusal – review by Migration Review Tribunal – false and misleading information allegedly given to Trades Recognition Australia (“TRA”) – at time information given TRA not a relevant assessing authority – TRA a relevant assessing authority at time of decision on visa application – whether Public Interest Criterion 4020 applied to information given to TRA. |
| Legislation: Migration Regulations 1994, regs.1.03, 2.26B, cls.886.212, 886.223, 886.225 of sch.2, cl.4020 of sch.4 |
| Singh v Minister for Immigration & Citizenship [2012] FMCA 145 Batra v Minister for Immigration & Citizenship (2013) 212 FCR 84 Rafi v Minister for Immigration & Citizenship [2012] FMCA 1002 Bari v Minister for Immigration & Citizenship (2013) 274 FLR 212 Kuligowski v Metrobus (2004) 220 CLR 363 Talukder v Minister for Immigration & Citizenship (2009) 111 ALD 405 |
| Applicant: | VIKRANT SHARMA |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 63 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 30 July 2013 |
| Date of Last Submission: | 27 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 9 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. J. Karp |
| Solicitors for the Applicant: | Christopher Levingston and Associates |
| Counsel for the First Respondent: | Mr M. Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue bringing the second respondent’s decision of 13 December 2012 into this Court to be quashed.
A writ of mandamus issue directing the second respondent to re-determine according to law the applicant’s application made to it on 28 September 2011.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 63 of 2013
| VIKRANT SHARMA |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of India and travelled to Australia on a student visa in April 2007. On 10 July 2009, he lodged an application for a Skilled - Sponsored (Class VB) subclass 886 visa. On 19 September 2011, that application was refused by a delegate of the first respondent (“Minister”) on the basis that the applicant did not satisfy the requirements of cl.886.225(a) of sch.2 to the Migration Regulations 1994 (“Regulations”) because he did not meet Public Interest Criterion 4020 (“PIC 4020”) found in sch.4 to the Regulations. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.
Relevant legislation
Clause 886.212 of sch.2 to the Regulations set out a criterion which an applicant for a subclass 886 visa had to satisfy at the time he or she applied for such a visa. The version of cl.886.212 applicable to the applicant was the one in force at the time he made his visa application: reg.4 of, and item 7 of sch.2 to, the Migration Amendment Regulations 2009 (No.15); items 26 and 29 of sch.2 to the Migration Amendment Regulation 2012 (No.2). That criterion required that, at the time of application:
… the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.
“Relevant assessing authority” is defined in reg.1.03 of the Regulations as a person or body specified under reg.2.26B of the Regulations. Regulation 2.26B relevantly provides:
2.26B Relevant assessing authorities
(1)Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:
(a) a skilled occupation; and
(b) one or more countries;
for the purposes of an application for a skills assessment made by a resident of one of those countries.
(1A)The Minister must not make an instrument under subregulation (1) unless the person or body has been approved in writing as the relevant assessing authority for the occupation by:
(a) the Education Minister; or
(b) the Employment Minister.
Clause 886.22 of sch.2 to the Regulations set out the criteria which had to be satisfied by an applicant for a subclass 886 visa at the time a decision was made on the visa application. It applied to the applicant’s application notwithstanding that it was subsequently omitted: items 26 and 29 of sch.2 to the Migration Amendment Regulation 2012 (No.2). At all relevant times, cl.886.223 provided:
886.223
(1)The skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation.
(2)If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of studying a registered course.
Clause 886.225(a) was also a time of decision criterion and required applicants to satisfy PIC 4020. At the time of the delegate and Tribunal’s decisions, PIC 4020 relevantly provided:
4020
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, … 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.
…
(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.
By IMMI 11/068 (SLI F2011L02011), which commenced on 1 October 2011, the Minister specified Trades Recognition Australia (“TRA”) as the assessing authority relevant to the applicant’s claimed occupation of hairdresser. However, it appears that at all earlier times relevant to the applicant’s application, TRA had not been validly specified: Singh v Minister for Immigration & Citizenship [2012] FMCA 145 at [65], Batra v Minister for Immigration & Citizenship (2013) 212 FCR 84 at 85-86 [7]-[12]; Rafi v Minister for Immigration & Citizenship [2012] FMCA 1002 at [2], [4] and [28]. That is to say, at no relevant time prior to 1 October 2011 had TRA been validly specified as a relevant assessing authority.
Background
Primary application
On his visa application form, lodged electronically on 10 July 2009, the applicant indicated that he held a skills assessment for the nominated occupation of “Hairdresser” from Trades Recognition Australia (“TRA”), dated 7 January 2009. A copy of that skills assessment result was included in the visa application and indicated that the applicant’s application for a skills assessment for the purpose of migration was successful and that his occupation was “Hairdresser”. It also stated that the evidence provided to it satisfied the formal training requirements, including the requirement that the applicant have completed 900 hours of directly related work experience. His application also included a copy of a letter from Mr Ching Mercado, the owner of Highlights Hair and Make-up Salon (“salon”) in Blacktown, which stated that the applicant had worked there as a hairdresser and hair stylist from 8 October 2007 to 31 August 2008 and had worked more than 900 hours as a hairdresser. It further stated that the applicant had worked twenty hours a week while he was studying and more during his college holidays.
As part of an investigation relating to claims of work experience at the salon, officers of the Minister’s department (“Department”) visited it on 21 March 2011 and spoke to Mr Mercado. When shown photographs of twenty-eight students, Mr Mercado was unable to provide names for all of them but confirmed that they had all worked for him as volunteers and each had completed 900 hours of work experience. Underneath a photograph of the applicant, Mr Mercado wrote the name “Sukhwinder”. He was unable to provide employment records, such as timesheets, for the students and gave inconsistent information as to how many students were working for him at the time of the visit and how many days they worked.
On 15 August 2011 the delegate wrote to the applicant inviting him to comment on information which had been supplied with his visa application and was suspected to be fraudulent. The delegate referred to the departmental investigation and raised concerns as to whether the applicant had undertaken the work experience claimed. She also noted that the applicant had relied on this work experience in order to obtain his TRA skills assessment.
In response, the applicant provided a statement from Mr Mercado dated 16 August 2011 stating that he had worked from 8 October 2007 to 31 August 2008 on a voluntary basis. Mr Mercado referred to the departmental investigation and stated that the officers had asked him only about his paid employees and had not asked him specifically about the applicant’s unpaid training at the salon.
On 19 September 2011 the delegate refused the applicant’s visa application on the basis that she was not satisfied that he met the requirements of PIC 4020 or that he had ever been employed by the salon as a hairdresser. The delegate also decided, on balance, that the work experience information provided with the applicant’s application to TRA was false or misleading in a material particular.
Review application
On 28 September 2011, the applicant sought a review of the delegate’s decision. On 10 September 2012 the Tribunal wrote to the applicant inviting him to comment on information which the Tribunal considered would be a reason or part of the reason for affirming the delegate’s decision, including his reliance in the TRA application on his employment as a hairdresser. In a response received by the Tribunal on 10 October 2012, the applicant’s representative stated that the applicant’s employer had re-confirmed the applicant’s unpaid training and enclosed two further letters signed by Mr Mercado and a certificate of completion of volunteer work issued by Mr Mercado. The applicant’s representative also referred to Singh’s case where it had been held that TRA had not been validly appointed as a relevant assessing authority at any time relevant to the application the subject of that case.
The applicant appeared before the Tribunal on 23 November 2012. At the hearing he confirmed that he had undertaken a Certificate III in Hairdressing and a Diploma in Hairdressing Salon Management. He stated that he had had no hairdressing experience before arriving in Australia but had chosen to become a hairdresser because he believed that he could make good money as one. The applicant said that he was not then working as a hairdresser but wanted to undertake further study in hairdressing, including a master’s degree at TAFE.
The applicant stated that he was referred to the salon by relatives who were clients of the business. He said that he started working there on 8 October 2007, after commencing his hairdressing studies in July or August 2007. He stated that he started as an apprentice, washing towels and preparing hair colours and then slowly started to do haircuts and colouring too. He initially stated that he started cutting hair within two to three months of commencing his employment. He later stated that he began cutting hair under Mr Mercado’s supervision four or five months after arriving at the salon and was able to do a full haircut by himself a couple of months after that.
The applicant stated that he worked at the salon on Thursdays and Fridays and sometimes on Saturdays. He then stated that he worked on Wednesdays too. He also said that during the holidays he worked on weekdays. He stated that as a condition of his study he could only work twenty hours a week when college was in session but during holidays he could work more hours. He stated that he did not have a fixed start time because he worked on a voluntary basis but he would do no more than twenty hours a week when college was in session.
The applicant stated that Mr Mercado did not keep any records concerning him because he was a volunteer. He said that he recorded his hours on a piece of paper which he had never shown to Mr Mercado and which he had lost. The applicant stated that when he finished at the salon at the end of August 2008 he told Mr Mercado the dates of his work experience and that he had completed 900 hours. He stated that the reference letter which Mr Mercado subsequently provided to TRA was based on that information.
The applicant was not sure why Mr Mercado had been unable to recognise him from the photograph shown to him by the departmental officers or why he did not remember him by name. He said that Mr Mercado used to call him Victor because he had had difficulty with his real name.
After the hearing, the Tribunal received a letter from the applicant’s representative making submissions concerning what were said to be compelling circumstances justifying waiver of the criteria for the visa. The present proceedings do not touch on that issue.
Tribunal’s decision and reasons
The Tribunal referred to Singh’s case where it was held, relevantly for this case, that a valid specification of TRA as an assessing authority had been made in an instrument which commenced on 1 October 2011 (IMMI 11/068). It went on to observe that the instrument relevant to this matter commenced on 1 July 2012 (IMMI 12/068) and to find that, in this case, TRA was the relevant assessing authority for the occupation of hairdresser. The Tribunal was satisfied that the reference letter from Mr Mercado dated 25 November 2009, which the applicant had given to TRA as evidence of his 900 hours of work experience as a hairdresser, had been given for the purpose of obtaining an assessment that his skills were suitable to satisfy the requirement in cl.886.223(1).
The Tribunal did not accept that the applicant had completed 900 hours of work experience as a hairdresser at the salon. In this connection, the Tribunal referred to:
a)the findings of the departmental investigation of the salon in March 2011;
b)Mr Mercado’s claim that he was only asked about paid employees. The Tribunal placed limited weight on this because the Department’s investigations indicated that Mr Mercado had been asked general questions about the students who worked for him;
c)the applicant’s oral evidence at the hearing, which it considered, on the whole, lacked credibility. In this regard, it found that the applicant’s evidence of the days and hours he worked and when he first started to cut hair shifted when questioned. The Tribunal further found that the applicant’s evidence about how he found the salon and why his relatives would travel from Liverpool to Blacktown for a haircut was not truthful and that his claimed desire to undertake further study in hairdressing also reflected poorly on his credibility;
d)the lack of documentary evidence as to the applicant’s work experience apart from the letters from Mr Mercado and the certificate of completion of volunteer work which Mr Mercado had issued to him. The Tribunal placed limited weight on the certificate as evidence that the applicant had completed 900 hours of work experience because it was undated and did not state the number of hours of work experience actually completed. In addition, it did not accept that the reference letter, or any of the other letters from Mr Mercado, contained reliable information about the number of hours of work experience the applicant had gained at the salon; and
e)Mr Mercado’s claim that the applicant had completed 900 hours work in his salon notwithstanding his statement that he could not provide records because he did not keep them for unpaid employees. The Tribunal also referred to the applicant’s allegation that Mr Mercado had made that statement on the basis of the applicant’s assertion and without any documentary support for or corroboration of it. Given its concerns about the applicant’s credibility, the Tribunal was of the view that Mr Mercado’s reference letter could not be relied upon as evidence that the applicant had worked more than 900 hours as a hairdresser.
Given those findings, the Tribunal concluded that the reference letter from the salon which the applicant had provided to TRA for the purpose of obtaining a suitable skills assessment contained information that was false or misleading at the time it was given. Therefore, it found that there was evidence before it that the applicant had given or caused to be given to the relevant assessing authority information that was false or misleading in a material particular in relation to the application for the visa. Accordingly, it found that the applicant did not satisfy PIC 4020(1)(a).
The Tribunal also referred to the applicant’s submissions concerning waiver of the requirements of PIC 4020(1) by reason of compassionate or compelling circumstances but no issue concerning that was raised in these proceedings.
Proceedings in this Court
Application
In the amended application filed in these proceedings the applicant alleged:
1.The Tribunal erred in finding that the information that the applicant gave to Trade Recognition Australia for the purpose of a skills assessment pursuant to Clause 886.223 of Schedule 2 of the Migration Regulations was false or misleading in a “material particular” within the meaning of Item 4020 of Schedule 8 of the Migration Regulations (PIC 4020).
Particulars
(a)Error in finding that Trades Recognition Australia (TRA) was a “relevant assessing authority” for the purposes of Clause 886.223 of Schedule 2 of the Migration 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) Trades Recognition Australia 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 Trades Recognition Australia as a “relevant assessing authority” did not validate a previously invalid assessment.
2.The Tribunal misconstrued and misapplied the words, “no evidence” in PIC 4020.
Particulars
(a)The Tribunal erred in finding that because the evidence of the applicant and that of the man said to be his employer were unreliable, the applicant had not in fact worked the 900 hours that he claimed to have worked.
Further particulars
(i) Given its findings that the evidence of the applicant and that of the employer were unreliable, it was only open for the Tribunal to find that there was no evidence on the subject of whether the applicant had worked the required 900 hours.
Ground 1
Submissions
The parties agreed that although TRA had not been a relevant assessing authority at the time the applicant applied to it for an assessment of his vocational skills, it had become one by the time the delegate and the Tribunal made their decisions because, in the meantime, the Minister had specified it in IMMI 11/068. The question raised by the first ground of the application was whether PIC 4020 would apply to the applicant in such circumstances, namely where TRA had not met the definition of relevant assessing authority when information was given to it but did when decisions concerning the truthfulness of that information came to be made by the delegate and the Tribunal.
The applicant submitted that PIC 4020 relevantly applied only if, at the time allegedly false or misleading information was given, the recipient was a relevant assessing authority. He submitted that a body’s appointment as a relevant assessing authority must have been in place before the material referred to in PIC 4020 was given to it and that it was not sufficient that the body became a relevant assessing authority at some later time, as in his case. The applicant submitted that false or misleading information given to a body which was not at that time a relevant assessing authority was not relevant to the decision on a visa application.
The Minister referred to Bari v Minister for Immigration & Citizenship (2013) 274 FLR 212 where Nicholls FM held, in circumstances similar to the present, that if TRA had been validly specified as a relevant assessing authority by the time of the Tribunal’s decision, it was open to the Tribunal to find that the applicant had given false or misleading information to a relevant assessing authority, even though the TRA had not been a relevant assessing authority when the applicant gave it the information. The Minister submitted that I should apply the decision in Bari unless I was of the view that it was plainly wrong, noting that the applicant had made no detailed submission that it was.
Consideration
The question therefore is: what is meant by the expression “relevant assessing authority” in PIC 4020 where it talks of information “… that the applicant has given, or caused to be given, to … a relevant assessing authority …”?
Although cl.886.225(a) was a time of decision criterion which referred to and thereby incorporated the requirements of PIC 4020, it did not alter the meaning of the words used in PIC 4020. Specifically, it did not have the effect that the words “… that the applicant has given, or caused to be given, to … a relevant assessing authority …” mean “… that the applicant has given, or caused to be given, to a body which at the time of decision is a relevant assessing authority …”. The criterion must be construed according to its own terms.
PIC 4020 is concerned that there be no evidence that an applicant has given false or misleading information to any of the entities or persons to which it refers. The entities or persons to which it refers are:
… the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth …
With the exception of the Tribunal, all of those references are to offices or roles held by natural or corporate persons, not to those natural or corporate persons themselves. That indicates that for information to engage the operation of PIC 4020 it must be given to a person when the person is the holder of the statutory office or the performer of the statutory role and, having regard to PIC 4020’s statutory context, it is probable that it must be given to them in that capacity. For instance, false and misleading information given to a private member of parliament who, by the time of decision, has been appointed to be the Minister, would not be caught by PIC 4020. Similarly, as the applicant’s address suggested, information given to an individual before he or she became an officer of the Minister’s department or a Medical Officer of the Commonwealth would not be caught by PIC 4020. I therefore find that, unless at the time allegedly false or misleading information is given to a person that person holds one of the offices or performs one of the roles referred to in PIC 4020, the information is of no relevance to PIC 4020.
Consequently, with respect, I cannot agree with the conclusion reached by Nicholls FM in Bari’s case. I therefore find in this case that TRA was not a relevant assessing authority at any time material to the operation of PIC 4020. As a result I also find that the Tribunal erred in applying PIC 4020 with the consequence that its decision is affected by jurisdictional error.
I raised with the parties whether it might be futile to remit the matter to the Tribunal. The applicant opposed such a course and the Minister did not, in the end, support it. In circumstances where the Minister did not press such a claim and the applicant opposed it, I need not consider the issue further.
Ground 2
Submissions
In light of the finding I have made concerning the operation of PIC 4020 it is not necessary to consider the second allegation made by the applicant. However, in the event that I am wrong concerning PIC 4020 I will do so.
The applicant submitted that although the Tribunal found that his evidence lacked credibility, it did not make a finding that he had not worked at the salon, stating instead that it did not accept his word as to the number of hours he had worked. He argued that the Tribunal used that conclusion to find that the information he had given to TRA was false and misleading and that it had, in effect, reasoned that because it did not believe him or Mr Mercado, there was evidence of falsity. In this respect the applicant submitted that rejecting evidence does not prove its opposite and that the Tribunal’s disbelief that he had worked for 900 hours meant that there was no evidence on the question, not that it had been proved that he had not done that work. In this regard, the applicant referred to Kuligowski v Metrobus (2004) 220 CLR 363 where it was said:
In general, disbelief in a witness’s evidence does not establish the contrary. Similarly, disbelief in the case presented by the moving party does not necessarily permit the court to conclude that the positive case of the opposing party is correct. In particular cases it may not be possible to reach a conclusion either way:
“[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden.”
A failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. (at 385-386 [60]) (references omitted)
The applicant submitted therefore that the Tribunal was mistaken as to what constituted “evidence” or “no evidence” with the consequence that its conclusion that certain information he had give to TRA was false or misleading in a material particular was affected by error.
The Minister argued that there was evidence before the Tribunal sufficient for it to draw a lawful conclusion that the applicant had not worked as a hairdresser at the salon for the hours claimed. In his written submissions the Minister set out a number of matters which he argued had been relied on by the Tribunal in reaching that conclusion, namely:
a)the conclusion of the departmental investigation that the salon could not have gainfully employed six to eight students working twenty hours per week;
b)Mr Mercado’s failure to remember the applicant’s name when shown a photograph of him;
c)the unsatisfactory nature of the applicant’s evidence at the Tribunal hearing;
d)the lack of particulars in Mr Mercado’s letters and certificate which meant that those documents were entitled to little weight; and
e)the fact that Mr Mercado had certified the 900 hours’ work on the applicant’s say-so which meant that reliance could not be placed on his letter confirming those hours.
The Minister argued that the Tribunal did not need to find that false evidence had been provided. He argued that it was sufficient that there be evidence which conveyed facts which were sufficiently probative as to lead to the conclusion that certain information was false or misleading in a material particular: Talukder v Minister for Immigration & Citizenship (2009) 111 ALD 405 at 411 [20]. He observed that the inquiry was not whether the applicant had lied but whether there was no evidence of reliance on false or misleading information.
Consideration
The relevant finding made by the Tribunal was:
83.As the Tribunal does not accept that the reference letter, or any of the other letters, from Mr Mercado contain reliable information about the number of hours’ work experience the applicant gained at his salon, and the Tribunal’s views on the applicant’s credibility, it does not accept that the applicant has 900 hours’ work experience as a hairdresser at Highlights Hair and Makeup Salon.
Earlier, at para.79 the Tribunal had found that the applicant was not truthful in relation to one particular aspect of his claims and that, on the whole, his oral evidence at its hearing lacked credibility.
Contrary to the burden of the applicant’s submission, the Tribunal’s statement at para.83 of its reasons that it did not accept the 900 hours’ work experience claim should be understood to be a finding that the applicant had not worked those hours. The matters identified by the Minister provided the Tribunal with a sufficient basis to reach that conclusion. They were evidence of probative value sufficient to support that finding.
The Tribunal’s finding in para.83 of its reasons was also the basis of its further conclusion that the applicant’s claim to TRA that he had 900 hours’ work experience was false or misleading. So much is made clear in paras.85 and 86 of the Tribunal’s reasons where it said:
As the Tribunal does not accept that the applicant has 900 hours’ work experience as a hairdresser at Highlights Hair and Makeup Salon, the Tribunal thus finds that the letter from Highlights Hair and Makeup Salon provided by the applicant to TRA for the purpose of obtaining a suitable skills assessment contained information that was false or misleading at the time it was given.
As the Tribunal has found above that the information that he had worked for over 900 hours is false or misleading at the time it was given to TRA and relevant to cl.886.223, the Tribunal thus finds that there is evidence before it that the applicant has given, or caused to be given, to a relevant assessing authority, information that is false or misleading in a material particular in relation to the application for the visa. Accordingly, the Tribunal finds that the applicant does not satisfy PIC 4020(1)(a) on this basis.
For those reasons, the second ground of the application is not made out.
Conclusion
Jurisdictional error on the part of the Tribunal has been demonstrated in connection with the first ground of the amended application.
Consequently, the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 9 December 2014
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