Singh v MIMAC
[2013] FCCA 1435
•24 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 1435 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it misapplied Public Interest Criterion 4020 – finding that Tribunal misapplied s.97 of the Migration Act 1958 and Public Interest Criterion 4020 – Talukder v Minister for Immigration distinguished. |
| Legislation: Migration Act 1958, ss.65, 97, 474 Migration Regulations 1994, cls.886.223, 886.224, 886.225 of sch.2, Public Interest Criterion 4020 (cl.4020 of sch.4) |
| Cases Cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2001) 207 ALR 12 Talukder v Minister for Immigration & Citizenship (2009) 111 ALD 405 |
| Applicant: | AMANDEEP SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 204 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 19 September 2013 |
| Date of Last Submission: | 19 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 24 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Applicant: | Christopher Levingston & 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 18 January 2013 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 to it dated 5 October 2010.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 204 of 2013
| AMANDEEP SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFIARS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 11 January 2009 the applicant lodged an application for a Skilled (Residence) (Class VB) subclass 886 visa with the Department of Immigration and Citizenship (“Department”). On 20 September 2010 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy the requirements of cls.886.223 and 886.224 of sch.2 to the Migration Regulations 1994 (“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.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
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
The criteria for the grant of a subclass 886 visa are set out in pt.886 of sch.2 to the Regulations. One of the criteria the applicant had to satisfy at the time he made his application was cl.886.223 which relevantly required that his skills had been assessed by a relevant assessing authority as suitable for his nominated skilled occupation.
At the time of the delegate’s decision, the applicant had to satisfy cl.886.224 which required the delegate to be satisfied that there was no evidence that the information given or used to obtain the applicant’s skills assessment was false or misleading in a material particular. Specifically, it provided:
No evidence has become available since the time of application that the information given or used:
(a) to meet the requirements of item 1136 of Schedule 1; or
(b) to satisfy Subdivision 886.21; or
(c) to satisfy clause 886.221; or
(d)to obtain the skills assessment mentioned in subclause 886.223 (1);
was false or misleading in a material particular.
By the time the Tribunal made its decision on 18 January 2013, cl.886.224 had been omitted from the Regulations and the “false and misleading information” criterion which the applicant had to satisfy was to be found in cl.886.225. Clause 886.225 relevantly required, as a time of decision criterion, that the applicant satisfy Public Interest Criterion (“PIC”) 4020. PIC 4020, which is found in sch.4 to the Regulations, relevantly provides:
(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, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; …
A bogus document is defined in s.97 of the Act as:
… 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.
Background facts
Department
In his application the applicant nominated the occupation of pastry cook and provided a skills assessment from Trades Recognition Australia (“TRA”) dated 7 May 2008. The applicant also provided a copy of a work reference letter dated 11 April 2008 ostensibly signed by Emmanuel Ploumidis, the manager/owner of Pastry Art Design, verifying that the applicant had worked at Pastry Art Design as a volunteer pastry cook for more than 910 hours between 1 May 2007 and 7 April 2008.
On 4 August 2010 the Department wrote to the applicant inviting him to comment on information it had received that his skills assessment had been obtained by false documents and a false work reference. It also invited him to comment on information it had received from TRA that TRA had decided to revoke his skills assessment. In an email response on 31 August 2010, the applicant claimed that his skills assessment had been approved after TRA had conducted a thorough investigation, that he had not submitted any fraudulent documents as part of his application and that TRA had not contacted him about cancelling his skills assessment. The applicant attached to his email copies of his work experience letter and his handwritten timesheets.
On 20 September 2010 the delegate refused to grant the applicant a visa on the basis that he did not hold a suitable skills assessment for his nominated occupation and therefore did not satisfy cl.886.223 of sch.2 to the Regulations. The delegate also found that the applicant had provided false and misleading information to the Department and therefore did not satisfy cl.886.224. In this connection, the delegate noted that a departmental investigation had identified seventy-six applicants, including the applicant, who had paid for work references to support their skills assessments to TRA and then knowingly used the skills assessments they subsequently obtained to support visa applications.
Tribunal
The applicant appeared before the Tribunal on 8 October 2012 and claimed that he had attempted to contact Mr Ploumidis but without success. He claimed that he had not contacted his co-workers so they could verify that he had worked at Pastry Art Design because it was stressful and because he had not been involved with them socially. The applicant also said that he had not been informed by the TRA that they had revoked his skills assessment. He said he was working as a casual in aged care.
During the Tribunal hearing, the applicant’s migration agent submitted that even though it might have been that not all the references (on Pastry Art Design stationery) were bogus, it was difficult to tell which ones were not. The migration agent submitted that the applicant’s name was a very common one and that there might have been a “mismatch”. It was submitted that the applicant’s then-employer was willing to sponsor him in aged care but the applicant had not studied in that field. The migration agent referred to three previous Tribunal cases and said that they were relevant to the applicant’s case because two of them involved a man associated with Mr Ploumidis who had created false documents and the other one involved PIC 4020.
On 26 October 2012 the applicant’s migration agent sent an email to the Tribunal forwarding copies of email correspondence between TRA and the applicant which indicated that the applicant’s skills assessment was still valid and had not expired or been revoked. In response to the Tribunal’s own enquiries, on 9 November 2012 TRA advised that the applicant’s skills assessment had not been revoked.
On 10 December 2012 the Tribunal wrote to the applicant inviting him to comment on or respond to information it considered would be the reason or part of the reason for it affirming the delegate’s decision. That information was that a certain person had been charged with creating false documents, including false work references, for the purposes of enabling international students to obtain positive skills assessments for the skilled migration program. During the investigation, the person had admitted to producing hundreds of fraudulent reference letters from different employers, including Mr Ploumidis of Pastry Art Design. The person admitted that Mr Ploumidis had emailed him his business logo and that he had used it to manufacture Pastry Art Design false work references. The Tribunal noted that the information was relevant to its review because it could cast doubt on the applicant’s work experience and could lead it to find that he had provided to TRA a bogus document or information which was false or misleading in a material particular.
In response, the applicant said in a statement dated 14 January 2013:
a)he had worked at Pastry Art Design for more than 900 hours. He was unlucky that the restaurant had been used by someone to generate fake work experience letters. However, he knew nothing about that and had received his letter and timesheets from his employer;
b)he had worked on a voluntary basis because it was difficult to find a paid job in his field and therefore did not have any evidence of his employment other than his work experience letter and timesheets signed by Mr Ploumidis; and
c)the Tribunal could clarify any doubts it had about his letter and timesheets by sending them to the “forensic department”.
The Tribunal’s decision and reasons
The Tribunal noted that TRA had confirmed the applicant’s evidence that his skills assessment remained valid and had not been revoked. It also noted that it had asked the Department to provide correspondence from TRA advising its purported decision to revoke the applicant’s skills assessment but had received no response. Based on that information, the Tribunal was satisfied that the applicant’s positive skills assessment remained valid and, therefore, that he met cl.886.223(1).
However, the Tribunal was not satisfied that the applicant had undertaken 900 hours of volunteer work experience at the Pastry Art Design. It “reasonably suspect[ed]” that the applicant’s positive skills assessment from TRA had been obtained because he had made a false or misleading statement to TRA that he had completed over 900 hours of directly-related work experience. Consequently, the Tribunal found that the applicant’s work reference letter and documents were bogus documents within the meaning of s.97(c) of the Act and that because he had given TRA bogus documents in relation his visa application he did not meet the requirements of PIC 4020(1)(a). In this connection:
a)the Tribunal placed weight on information it had received about the Department’s investigation into the provision of fraudulent work references. It found that the information in the delegate’s decision, that the applicant’s work reference letter had been identified as one of those obtained with false employment documents, cast doubt on whether the applicant had worked at Pastry Art Design. Whilst it had regard to the submissions made by the applicant’s migration agent at its hearing, the Tribunal found them largely speculative. It found that when combined with its other concerns, the information from the Department raised concerns about the authenticity of the applicant’s claimed work experience and the work reference from Pastry Art Design;
b)the Tribunal noted that it was unclear what the applicant’s reference to the “forensic department” meant. It decided not to send the applicant’s documents elsewhere, noting that even if such an enquiry resulted in confirmation that the applicant’s former employer had written the letter and signed the timesheets, such information would not have overcome the serious concerns raised by the departmental investigation into fraudulent work references;
c)the Tribunal found that there was nothing in the applicant’s account, or any material, which persuaded it that the applicant had worked at Pastry Art Design for more than 900 hours. Whilst accepting that there would be no payslips because the applicant’s claimed work had been voluntary, the Tribunal noted that it would have expected to have seen some other material supportive of the applicant’s claim to have performed the work, such as supporting statements from co-workers. Given its concerns about the applicant’s claimed work experience, the Tribunal gave the timesheets little weight; and
d)the Tribunal accepted that the applicant might have performed a small amount of work at Pastry Art Design to familiarise himself with the premises but, in light of its concerns, it did not accept that he had performed over 900 hours of work as a pastry cook as he alleged.
Having found that the applicant did not meet the requirements of PIC 4020(1)(a), the Tribunal considered whether there were compassionate or compelling circumstances to justify waiving them. It found that the applicant had made no specific submissions on the issue and, although accepting that the applicant worked as a casual in aged care, did not find that that alone was sufficiently compelling to justify it granting him a visa. The Tribunal therefore concluded that there was no basis upon which it could waive the requirements of PIC 4020.
Proceedings in this Court
In his amended application the applicant alleged:
1.The Tribunal erred in its interpretation and application of Item 4020(1) of Schedule 8 [sic] of the Migration Regulations (PIC 4020(1)).
Particulars
(a)The Tribunal found the following to be evidence that the applicant had given, or caused to be given, a bogus document in relation to his application for a visa:
(i) That the applicant’s alleged employer had provided false work references for certain people; and
(ii) An absence of positive evidence that the applicant himself worked the required 900 hours at “Pastry Art Design” to qualify for a positive skills assessment from Trades Recognition Australia (TRA); and
(iii) It’s conclusion that he had not worked the required 900 hours; and
(iv) Its ‘reasonable suspicion’ that the applicant’s positive skills assessment from TRA was obtained by a false or misleading statement.
(b) It was not legally open to the Tribunal to so find.
The applicant’s argument was that before the Tribunal could decide whether or not to affirm the delegate’s decision, it had to make a finding on whether or not there was evidence that he had given, or caused to be given, to a relevant person or body a bogus document or information which was false or misleading. He said that whether or not such evidence existed was a jurisdictional fact because the Tribunal’s power to determine the review depended on it making a finding on that question. With all respect to the somewhat more elaborated arguments made by the applicant, I do not agree.
The matter on which the Tribunal’s jurisdiction to make a decision on the review rested was the existence or absence of its satisfaction that the applicant met the criteria for the grant of the visa he sought: s.65(1) of the Act. As was said in analogous circumstances in Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2001) 207 ALR 12:
… s 65 of the Act provides that the minister is to grant a visa sought by valid application “if satisfied” of various matters. These include that any criteria for the visa prescribed by the Act are satisfied: s 65(1)(a)(ii). Section 65 imposes upon the minister an obligation to grant or refuse to grant a visa, rather than a power to be exercised as a discretion. The satisfaction of the minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a “jurisdictional fact” or criterion upon which the exercise of that authority is conditioned. The delegate was in the same position as would have been the minister (s 496) and the tribunal exercised all the powers and discretions conferred on the decision-maker: s 415. (at 20 [37] per Gummow and Hayne JJ, Gleeson CJ agreeing at 13 [1]) (reference omitted)
What the applicant identified as a jurisdictional fact was in reality only an intermediate fact on which the Tribunal’s ultimate view of the matter would be partly based. Consequently, to make out the allegation that the Tribunal was guilty of jurisdictional error because it had not lawfully reached its lack of satisfaction that the applicant met all the visa criteria, it would be necessary for the applicant, based on the way he argued his case, to show that the Tribunal’s finding on the PIC 4020 issue was entirely without evidentiary support.
Reliance was placed on what Edmonds J said in Talukder v Minister for Immigration & Citizenship (2009) 111 ALD 405:
In my view, the word ‘evidence’ is used, in contradistinction to the word ‘information’, which is also used in the clause, to impose a requirement that, whatever facts are conveyed by the material relied upon to establish that the information given to meet the requirements of item 1128CA(3)(k) of Schedule 1 was false or misleading in a material particular, are sufficiently probative to lead to that conclusion. (at 411 [20])
However, his Honour’s reasoning is not relevant to the present case. In Talukder, Edmonds J considered a provision relevantly identical to the cl.886.224 which applied to the applicant’s case when it was before the delegate but which had been omitted from the Regulations before the Tribunal made its decision. Importantly, the requirements of provisions such as cl.886.224 that there be:
a)no evidence of an applicant giving information which was
b)false or misleading in a material particular,
were augmented in one significant respect when cl.886.224 and its analogues were repealed by Migration Amendment Regulations 2011 (No 1) and at the same time replaced by PIC 4020 and the various references to it throughout the visa criteria in sch.2 to the Regulations. PIC 4020 speaks of there being no evidence that an applicant has submitted information that is false or misleading but it also speaks of there being no evidence of use of a bogus document, which was the basis of the decision on the applicant’s review. Importantly, what amounts to a bogus document is determined separately from PIC 4020 by application of s.97 of the Act.
For a document to be considered bogus, it is only necessary that the decision-maker “reasonably suspect” that it
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.
A failure to meet the requirements of PIC 4020 will occur if there is evidence of a bogus document having been submitted. If a document which is found to be bogus under the relatively undemanding test in s.97 has been submitted in connection with a visa application, no more is needed to show that there is evidence of the sort referred to in PIC 4020. Consequently, although use of the word “evidence” in PIC 4020 may imply the need for probative evidence, as the criterion in this respect only requires evidence that a bogus document has been submitted, not that a document that has been submitted is bogus, in that respect it operates very differently from the criterion discussed in Talukder.
The applicant’s submission that that there had been no probative evidence before the Tribunal on the question whether he had submitted a bogus document, only information of no particular evidentiary value, did not address the manner in which the Regulations relevantly operate. The matters to which the Tribunal referred as being the basis of its suspicion that the documents supplied to TRA were bogus were set out in the second set of paras.59, 60 and 61 of its decision record. They are summarised above at [17(a)-(c)] and it was to those paragraphs that the applicant referred when he submitted that there had been no probative evidence before the Tribunal on whether he had submitted a bogus document. However, for the reasons given above, the matters set out in those paragraphs of the Tribunal’s reasons did not go to the question of whether a bogus document had been submitted to the TRA but to whether the material submitted to the TRA met the definition of bogus document, which required a reasonable suspicion, not probative evidence to the standard discussed in Talukder. In that regard, whatever might be said of the material referred to in paras.60 and 61 of its reasons, in para.59 the Tribunal referred to and later plainly relied on an important passage in the delegate’s reasons for refusing the applicant a visa. The delegate had said:
Staff from the Department of Immigration and Citizenship (DIAC) have conducted an investigation into applicants paying for work references to support their Skills Assessment application to TRA. The positive Skills Assessment Application Result was then knowingly used to support a visa application lodged with DIAC. The outcome of the investigation has highlighted 76 clients who were identified as being involved in these activities. And Skills Assessment Application Result reference number TRA08/106209452 (dated 7/5/2008) which was issued to Amandeep Singh (CID 72078064641) has been identified as one of those that were obtained with false employment documents.
That statement, relying as it did on information gathered by the Minister’s department, provided the Tribunal with a reasonable basis for suspecting that the information contained in the documents supplied to the TRA, and which led to the applicant obtaining his skills assessment, contained false or misleading statements. In those circumstances, the Tribunal should have found that the TRA assessment was a bogus document within the meaning of s.97 of the Act on the basis that the documents which the applicant had submitted to the TRA met the test set out in s.97(c). However, it did not do that. Instead, it held that the falsity of the documents submitted to TRA meant that it was they that were bogus documents, a finding which does not reflect any of the tests in s.97.
The relevant reasoning appears in the second and third sentences of para.66 of the Tribunal’s reasons where it said:
The Tribunal reasonably suspects that the applicant’s positive skills assessment from TRA was obtained because of a false or misleading statement to TRA that the applicant had completed over 900 hours of directly related work experience. Consequently the Tribunal finds that the applicant’s work reference letter and documents were ‘bogus documents’ within the meaning of s.97(c) of the Act.
Those statements disclose a critical misunderstanding of how s.97 operates because they characterised the documents submitted to TRA as bogus documents on the basis that they were false and misleading, not on the basis that they had been “obtained because of a false or misleading statement”. That misunderstanding continued in para.67 of the Tribunal’s reasons where the Tribunal held that there was evidence before it that the applicant had given a bogus document to a relevant assessing authority and that therefore the applicant did not meet the requirements of PIC 4020(1)(a).
The Tribunal’s finding that the documents which the applicant had submitted to TRA were bogus was erroneous because it arose out of a misapplication of s.97 of the Act. Because that finding was erroneous, there was no basis for the Tribunal’s consequent finding that the applicant did not meet the requirements of PIC 4020(1)(a) for the reasons it stated.
Conclusion
As the Tribunal misapplied s.97 of the Act and PIC 4020, its decision on the applicant’s review is affected by jurisdictional error.
Consequently, the matter will be remitted to the Tribunal to be determined according to law.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 24 September 2013
15
2
3