FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Border Protection [2018] FCAFC 52
Appeal from: Singh v Minister for Immigration and Border Protection [2017] FCCA 2198 File number: NSD 1689 of 2017 Judges: BROMBERG, GRIFFITHS AND MOSHINSKY JJ Date of judgment: 5 April 2018 Catchwords: MIGRATION – appeal from a judgment of the Federal Circuit Court of Australia – where a fraudulent IELTS test report was provided to the Department – where the appellant claimed that his brother-in-law had altered the appellant’s original IELTS test report without the appellant’s authority, knowledge or complicity, and gave the altered IELTS test report to a migration agent who then provided it to the Department – whether the altered IELTS test report was a “bogus document” or “information that is false or misleading in a material particular” for the purposes of Public Interest Criterion 4020 (PIC 4020) – whether in these circumstances the appellant had “given, or caused to be given” to the Department a bogus document, or information that is false or misleading in a material particular, such that PIC 4020 was not satisfied – whether the primary judge erred in finding that the AAT did not commit jurisdictional error by misconstruing or misapplying PIC 4020 – whether the primary judge erred in finding that the AAT did not commit jurisdictional error by concluding that PIC 4020 was not satisfied in these circumstances – appeal dismissed, with costs Legislation: Migration Act 1958 (Cth), ss 5, 48, 97, 98, 100, 103, 111
Migration Regulations 1994 (Cth), Schedule 2, cl 457.224; Schedule 4, Public Interest Criterion 4020
Cases cited: Arora v Minister for Immigration and Border Protection [2016] FCAFC 35; 238 FCR 153
Coulton v Holcombe [1986] HCA 33; 162 CLR 1
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
Gill v Minister for Immigration and Border Protection [2016] FCAFC 142; 248 FCR 398
Maharjan v Minister for Immigration and Border Protection [2017] FCAFC 213
McDonald v Director-General of Social Security (1984) 1 FCR 354
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510
Park v Brothers [2005] HCA 73; 222 ALR 421
Patel v Minister for Immigration and Border Protection [2015] FCAFC 22
Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5; 144 ALD 243
Re Patterson; Ex parte Taylor (2001) 207 CLR 391
Singh v Minister for Immigration and Border Protection [2015] FCAFC 151
Singh v Minister for Immigration and Border Protection [2016] FCAFC 141; 247 FCR 554
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- AGLC
- Singh v Minister for Immigration and Border Protection [2018] FCAFC 52
- Case
- [2018] FCAFC 52
- Decision Date
CaseChat Overview and Summary
The appeal in Singh v MIBP involved the appellant, Prabhjot Singh, challenging the decision of the Administrative Appeals Tribunal (AAT) to uphold the refusal of his visa application. The central issue was whether the altered IELTS test report, provided by his brother-in-law without his knowledge, constituted a “bogus document” or “information that is false or misleading in a material particular” under Public Interest Criterion 4020 (PIC 4020) of the Migration Regulations. This criterion was a condition for the grant of a subclass 457 visa. The appellant argued that he was not complicit in providing the altered report and thus should not be held liable under PIC 4020.
The Federal Circuit Court of Australia (FCCA) reviewed the AAT's decision, considering whether the AAT had erred in finding that the appellant had "given, or caused to be given" to the Department a bogus document. The FCCA also evaluated whether the AAT had misinterpreted PIC 4020, potentially imposing absolute liability on the appellant despite his innocence and the actions of his brother-in-law. The court needed to determine if the AAT's findings were legally sound and if the AAT had correctly applied PIC 4020 in the context of the appellant's situation.
In its reasoning, the FCCA found that the AAT had correctly interpreted and applied PIC 4020. The court held that the AAT was not in error in concluding that the appellant had not satisfied PIC 4020 due to the fraudulent IELTS test report provided to the Department. The FCCA determined that even if the appellant was innocent and had no knowledge of the fraudulent document, the mere act of submitting such a document to the Department, facilitated by a third party, was sufficient to trigger PIC 4020. Consequently, the FCCA dismissed the appeal and upheld the AAT's decision, with the appellant ordered to pay the costs of the first respondent.
The Federal Circuit Court of Australia (FCCA) reviewed the AAT's decision, considering whether the AAT had erred in finding that the appellant had "given, or caused to be given" to the Department a bogus document. The FCCA also evaluated whether the AAT had misinterpreted PIC 4020, potentially imposing absolute liability on the appellant despite his innocence and the actions of his brother-in-law. The court needed to determine if the AAT's findings were legally sound and if the AAT had correctly applied PIC 4020 in the context of the appellant's situation.
In its reasoning, the FCCA found that the AAT had correctly interpreted and applied PIC 4020. The court held that the AAT was not in error in concluding that the appellant had not satisfied PIC 4020 due to the fraudulent IELTS test report provided to the Department. The FCCA determined that even if the appellant was innocent and had no knowledge of the fraudulent document, the mere act of submitting such a document to the Department, facilitated by a third party, was sufficient to trigger PIC 4020. Consequently, the FCCA dismissed the appeal and upheld the AAT's decision, with the appellant ordered to pay the costs of the first respondent.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs, as agreed or assessed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
It is desirable to provide a brief summary of the background facts, including those relating to the decision(s) by the delegate, the AAT and the primary judge. SUMMARY OF BACKGROUND FACTS(a) The delegate’s decision(s) It is not clear from the materials in the Appeal Book whether the appellant made one or two applications for the relevant visa. The AAT stated that it had conducted a review of two decisions to refuse to grant the appellant a subclass 457 visa. The Appeal Book contained only a single application for such a visa, which application is dated 14 April 2015 . It appears that the appellant’s visa application was rejected by the Minister’s delegate on 14 July 2015 and again on 6 November 2015. The delegate’s decision dated 14 July 2015 was included in the Appeal Book, but not the decision dated 6 November 2015. The basis of the delegate’s decision dated 14 July 2015 for not granting the appellant a subclass 457 visa is the delegate’s finding that the appellant did not satisfy the requirements of cl 457.224 of Sch 2 to the Regulations because, for the reasons summarised above, he did not satisfy PIC 4020. Upon receipt of the appellant’s initial visa application, the Department noted that there was a discrepancy between the IELTS test result it had received from the appellant’s migration agent and the actual result which was published by the relevant service provider. The Department invited the appellant to comment on the discrepancy. In response, the Department received a letter dated 28 April 2015 from the appellant’s sister, who was also his sponsor for the visa. In brief, she said that she owned a café in Leeton where the appellant (her brother) had worked as a chef for 20 hours per week since late 2014. She explained that she decided to sponsor him for a subclass 457 visa so that he could work full time for her. She said that she had asked her husband to assist in lodging the visa application for her brother, which the husband did online. However, she said that her husband preferred a friend of his to be sponsored for the position (even though he did not have relevant experience or qualifications), and that she and her husband had had a dispute about the matter. She claimed that her husband used the computer to falsify the appellant’s IELTS results before sending the documents to a migration agent. The sister said that she only learned of her husband’s actions when the Department wrote to the appellant about the inconsistency in the test results. She provided the Department with the correct IELTS results dated 7 June 2014, as well as a letter dated 28 April 2015 from her husband. As noted above, the correct results revealed that the appellant did not satisfy the relevant criterion concerning his standard of English to be granted a subclass 457 visa. The full contents of the sister’s letter dated 28 April 2015 are as follows (without alteration):To,Department of Immigration and Border Protection,457 Processing Centre,Melbourne, VICTemporary Work (Skilled) (457)Application Number – 475579624TRN – EGO8BNX832Date – 28/04/2015To whom it may concern,Dear sir / Madam,My name is Gurvinder Kaur Janday and I am the owner of Movie Café in Leeton NSW 2705. I am writing this letter in regards of my employee Prabhjot Singh DOB 02/03/1986. Prabhjot has been working for us in our café since late last year as chef. I appointed him to work for me on behalf of his qualifications and his past working experiences in food industry. Prabhjot has been very loyal and hardworking employee since he is started working with us but due to his visa status at that time we have appointed him its only allows him to work 20 hours per week, so I decided to apply for subclass 457 visa so he can work full time with us and help me run my business. Last week he received a letter from you guys stating that he had misled you with false document of his IELTS.I just want to justify this Prabhjot has giving me all of his required document which required by me to lodge his application for subclass 457 visa and I have giving all those document to my husband Ravinder Singh Janday to process it on the computer as I work full time job as well so due to lack of time I ask my husband to help me with his application. My husband never wants to sponsor Prabhjot Singh because he wants one of his friends to be sponsored through our café but that person does not have any required qualification and never worked in food industry before so I refused my husband to lodge his friend’s application. Since that day he is having conflict with me regarding this matter and also wants to close the business but I want to keep the business. Due to our family dispute while my husband was sending all the required document to our migration agent who is CECA in Melbourne, he make a false IELTS document through photoshoot and change all his results without us noticing, he send it to CECA and they thought the document they received all are valid and true, so they processed Prabhjot Singh application. Last week when I saw your letter I was so shocked and then I asked my husband to explain this, he agreed that yes he did it to mislead Prabhjot application so he can apply his friend’s application. Prabhjot has been very depressed since that day and very upset regarding his future, he trusted me and my family to support him with his application but due to my husband selfishness, I really do not want his career to be ruined. He is very honest and loyal person and very hardworking. He manages my business and since he had started working with us my business is doing very good. He had worked so hard and put so much his effort to build my business. I have attached his true verified copy of his IELTS document and also willing to come to see you guys personally if you wish to see Prabhjot original documents. It is my humble request to you to please consider your decision wisely as someone whole future is in your precious hands and also the future of my business is also based on your decision as well. So it is my very humble request to you to please consider his application wisely, I have also attached the letter of clarification from my husband regarding him been misleading you guys with Prabhjot application. Please do not hesitate to contact me on below given number if you need more clarification regarding this matter.Yours sincerelyGurvinder Kaur Janday[Signature]Contact – [mobile telephone number]Email id [email address]
Evidence
Evidence Before The Court
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Decision
Reasons for decision
At [49] of its reasons for decision, the AAT affirmed what it described as “the decision” not to grant the appellant the visa. This conclusion was apparently intended to apply to both the primary decisions made on 14 July 2015 and 6 November 2015 respectively (see [27] above). (c) FCCA’s reasons for judgment summarised As noted above, the appellant sought judicial review of the AAT’s decision in the FCCA. He was represented in the FCCA by Mr Arch, the same solicitor who represented him in the appeal. He raised two grounds of judicial review below. It is desirable to set out the full terms of both grounds:Grounds of applicationGround 1: The second respondent, the Administrative Appeals Tribunal erred in finding that the applicant had “given, or caused to be given” to the Minister or an officer of the Department a bogus document within the meaning of Public Interest Criterion 4020 of Schedule 4 of the Migration Regulations, namely an allegedly altered or fraudulent IELTS test result report. The Tribunal thus erred in law and committed jurisdictional error. Particulars1. The evidence before the Tribunal established that the IELTS test result report was altered by the applicant’s brother-in-law, without the applicant’s knowledge, participation or consent.2. The evidence before the Tribunal established that the applicant’s brother-in-law was solely responsible for transmitting the fraudulent IELTS test result report to a migration agent for the purpose of lodging the document with the Department.3. The evidence before the Tribunal established that the applicant did not have any direct contact with the migration agent in relation to the application. Ground 2: The Tribunal misinterpreted Public Interest Criterion 4020 and thus erred in law and committed jurisdictional error.Particulars1. The Tribunal erroneously concluded that Public Interest Criterion 4020 may be engaged in circumstances where a third party creates a bogus document and arranges for that bogus document to be given to the Department, without the knowledge, participation or consent of the applicant, where the third party engages in such conduct with the specific purpose of undermining the applicant’s visa application or otherwise damaging the applicant’s legal rights. 2. The Tribunal erroneously concluded that Public Interest Criterion 4020 may be interpreted so as to impose absolute liability on an applicant whenever a bogus document is submitted to the Department, notwithstanding the supervening conduct of a third party acting with ill intent toward the applicant. 3. The Tribunal erroneously concluded that the applicant in these proceedings did not satisfy Public Interest Criterion 4020 even though the evidence before the Tribunal established that the applicant was entirely innocent, and that the responsibility for the creation of the bogus document and the submission of that document to the Department was solely attributable to the misconduct of a third party, being the applicant’s brother-in-law.
Ratio Decidendi
Legal Principle Established
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