Singh v Minister for Immigration
[2020] FCCA 2677
•25 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2677 |
| Catchwords: MIGRATION – Skilled visa – decision of the Administrative Appeals Tribunal – Public Interest Criterion 4020 – whether the Tribunal’s finding was illogical – whether the Tribunal imposed an impermissible onus on applicant to prove his case – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 65, 97, 362B, 375A Migration Regulations 1994 (Cth), Public Interest Criterion 4020 |
| Cases cited: Abebe v Commonwealth (1999) 197 CLR 510 Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| Applicant: | AVTAR SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 492 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 22 September 2020 |
| Date of Last Submission: | 22 September 2020 |
| Delivered at: | Perth |
| Delivered on: | 25 September 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr A Gerrard |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 492 of 2019
| AVTAR SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
The applicant is a citizen of India. He arrived in Australia on December 2005 on a student visa (Court Book (“CB”) 26).
On 15 July 2009, the applicant applied for a Skilled (Provisional) (Class VC) visa (the “visa”) (CB 5-93). The applicant’s nominated occupation was as a “Motor Mechanic” (CB 8).
The applicant’s visa application included a skills assessment from Trades Recognition Australia (“TRA”) (CB 1). The applicant also provided a “reference letter” from the owner of “Always Automotive” which stated that the applicant had “more than 940 hours of unpaid work experience as a Motor Mechanic” (CB 62-64).
On 21 February 2011, the then Department of Immigration & Citizenship invited the applicant to comment on adverse information that it had received. Relevantly, the invitation provided (CB 123-126):
The department has conducted checks to confirm the information that you provided in your application. During this process we have received unfavourable information which does not support your application.
Results of departmental checks of your claims indicate that some of the information provided with your application may have been misleading or incorrect.
Australian immigration officers have conducted checks against your claim for work experience as a Motor Mechanic. On examination of data held by Trades Recognition Australia (TRA), you have been identified as claiming work experience at Always Automotive.
The following adverse information was discovered during the course of these checks:
You have been found to have not worked 900 hours as a requirement to obtain a skills assessment and the work reference that you provided from Always Automotive was found to be fraudulent.
You have provided evidence for your claimed employment at Always Automotive. Serious concerns have been raised in the process of this Department attempting to verify your c1aims.
A short response was provided by the applicant’s migration agent on 17 March 2011 which stated that the applicant was making inquiries in order to verify his employment (CB 127-132).
On 18 July 2012, the Department invited the applicant to comment on further information. Specifically, the applicant was asked to comment on whether he met Public Interest Criterion (“PIC”) 4020 of the Migration Regulations 1994 (Cth) (the “Regulations”). The Department stated that there was reason to believe that the skills assessment submitted as a part of the applicant’s applications was fraudulently obtained (CB 135-139).
On 13 August 2012, the applicant responded. He provided a statutory declaration which stated that he had worked more than 940 hours at Always Automotive. Written submissions were also provided (CB 140-147).
On 30 August 2012, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 151-159). The delegate was not satisfied that the applicant met PIC 4020 and determined that it would not waive the criterion.
The applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) on 18 September 2012 (CB 168-178).
On 27 June 2014, the Tribunal invited the applicant to provide information and comment or respond to information as follows (CB 198-200):
Invitation to comment on or respond to information
The particulars of the information are:
• an employment reference issued to you by Always Automotive was fraudulently produced or procured
• the employment reference was provided by you or on your behalf to Trades Recognition Australia to obtain a positive skills assessment in your nominated occupation
• [omitted] (“[CA]”) has pleaded guilty in criminal proceedings in Victoria to the manufacture and sale of work references matching the employment reference submitted to TRA to obtain your skills assessment
• [CA] has admitted that the work references were fraudulent in content and that they were created to assist clients to apply for permanent residence in Australia.
This information is relevant to the review because the criteria for the grant of the Skilled Graduate visa you have applied for include that there be no evidence that you have given or caused to be given to persons including the Minister a bogus document or information that is false or misleading in a material particular in relation to the visa application.
If the Tribunal relies on this information in making its decision, it may find that you do not meet this criterion for the grant of a visa and so the Tribunal may affirm the decision of the delegate to refuse to grant the visa.
You are invited to give comments on or respond to the above information in writing.
Invitation to provide information
You are also invited to provide the following information in writing:
• Evidence that as at the date on which you made your visa application you had applied for an assessment of your skills for your nominated skilled occupation by a relevant assessing authority and, further, that your skills for that occupation have been assessed by the relevant assessing authority as suitable for that occupation.
On 13 August 2014, the applicant provided a letter to the Tribunal in response to the invitation (CB 209-211). The applicant maintained that he had completed the required number of hours of work.
On 27 November 2014, the Tribunal sent the applicant a further invitation to comment or respond to information (CB 224-232). The information included further details about the alleged fraudulent documents, a statement from ‘CA’ that he had produced fraudulent documents for Always Automotive and evidence that the applicant’s reference letter was found on ‘CA’’s USB stick.
On 11 December 2014, the applicant responded to the invitation with a statement which again stated that he had completed the required number of hours and that he did not know ‘CA’ (CB 233-234).
The applicant attended a hearing before the Tribunal on 9 January 2015 (CB 262-265). Post-hearing submissions were provided to the Tribunal on 12 January 2015, 27 January 2015 and 28 January 2015 (CB 266-274).
On 9 March 2015, the Tribunal affirmed the delegate’s decision not to grant the applicant the visa. The Tribunal found that the applicant did not meet PIC 4020 and determined that it was not appropriate to waive the criterion (CB 279-302).
The applicant then applied to this Court for judicial review of the Tribunal’s decision of 9 March 2015.
On 23 September 2016, a Judge of this Court set the Tribunal’s decision aside and remitted the matter for reconsideration (CB 303-322). The Court determined that the Tribunal’s decision was affected by jurisdictional error as there had been a failure to disclose a certificate issued pursuant to s.375A of the Migration Act 1958 (Cth) (the “Act”). The applicant was found to have been denied procedural fairness as a result of the non-disclosure.
The Minister appealed that Circuit Court’s decision.
On 19 December 2016, the Full Court of the Federal Court dismissed the Minister’s appeal (CB 323-337).
The Minister than sought special leave in the High Court.
The High Court refused that application on 12 May 2017 (CB 338-353) and the matter was remitted to the Tribunal.
On 22 May 2017, the Tribunal advised the applicant that it would be reconsidering his application (CB 355-356).
On 16 October 2019, the Tribunal advised the applicant’s migration agent that the s.375A certificate was invalid. The Tribunal released the documents covered by the certificate in full (CB 400-421).
On 17 October 2019, the applicant’s migration agent forwarded written submissions to the Tribunal (CB 423-434). Supporting statements from the applicant and his brother were provided to the Tribunal on 22 October 2019 (CB 435-439).
On 24 October 2019, the applicant attended a hearing before the Tribunal (CB 440-442).
On 1 November 2019, the Tribunal invited the applicant to comment on or respond to information and to provide information (CB 455-464). The invitation was in the same terms as the invitations dated 27 June 2014 and 27 November 2014 (as detailed above at [10] and [12]).
On 15 November 2019, the applicant’s representatives provided a number of documents in response to the invitation (CB 530-558).
On 5 December 2019, the Tribunal again affirmed the decision not to grant the applicant the visa (CB 565-592).
On 18 December 2019, the applicant applied to this Court for review of the Tribunal’s decision dated 5 December 2019. That application for judicial review is the subject of these reasons for judgment.
The matter was heard in this Court on 22 September 2020 – more than 10 years after the applicant applied for the visa.
To succeed in this Court, the applicant must show jurisdictional error on the part of the Tribunal.
The Tribunal’s Decision
The Tribunal’s decision of 5 December 2019 is 28 pages long and spans 115 paragraphs.
The Tribunal began by setting out the type of visa under review. It then summarised the delegate’s reasons for refusing the visa and confirmed that the applicant was represented by a migration agent and had attended a hearing before the Tribunal (at [1]-[5]).
The Tribunal then set out (in considerable detail) the history of the applicant’s application. The Tribunal noted that:
a)the applicant had applied for the visa on 15 July 2009. During the course of the delegate’s assessment, information came to light about whether the applicant had provided a fraudulent document. The applicant was asked to comment on this information on two occasions. The Tribunal summarised the applicant’s response to the delegate’s letters and noted that the delegate refused to grant the visa on 30 August 2012 (at [6]-[14]);
b)the applicant sought review at the Tribunal of the delegate’s decision. The Tribunal explained the procedural history of that application, noting that the applicant was invited to comment on information on two occasions and that the Tribunal had summonsed information from the Secretary of the Minister’s Department. The applicant had responded to the invitations to comment. The Tribunal also referred to the previous Tribunal affirming the decision on 9 March 2015 (at [15]-[22]; and
c)the matter was remitted to the Tribunal on the basis that there was no evidence to suggest that the applicant had been advised of the s.375A certificate and that this amounted to a denial of procedural fairness (at [23]).
The Tribunal then noted that the applicant was represented before the Tribunal and that his migration agents had obtained access to the written material under s.362B of the Act. The Tribunal also confirmed that the s.375A certificate was invalid and that all of the information the subject of the certificate had been provided to the applicant (at [24]-[26]).
The Tribunal provided a detailed overview of the hearing that took place before it on 24 October 2019. The Tribunal:
a)stated that it heard evidence from the applicant’s sister and that, at the hearing, the Tribunal discussed the previous request for information the applicant had been sent by the Tribunal on 12 August 2014 and 27 November 2014. The Tribunal noted that, for the sake of completeness, it would send those letters again after the hearing (at [27]-[32]);
b)summarised the applicant’s evidence he had provided in response to questions posed by the Tribunal. This included evidence about the hours he could work on his student visa, financial information, the applicant’s employment history, the applicant’s study history and his personal circumstances (at [33]-[44]);
c)detailed the information the applicant had provided in relation to Always Automotive. This evidence included a description of the applicant’s duties and the tools he used in the automotive trade. The applicant stated that during the course of the delegate’s review he offered to “undergo testing”. He also confirmed that he would give “consideration” to working in the automotive industry again – notwithstanding that he had not done so since he left Always Automotive in 2008 (at [45]-[47]);
d)discussed the information it had in relation to ‘CA’ and invited the applicant to comment on this information. The Tribunal noted the applicant’s response to that information. Relevantly, it was noted that he stated that he had genuinely completed the required work experience and was a “genuine person” (at [48]-[52]); and
e)took evidence from the applicant’s sister and summarised the information provided by her. The Tribunal asked the applicant’s sister how she and her family would be affected if the applicant left Australia. She stated that she would be left without support if the applicant returned to India (at [54]-[58]).
The Tribunal then set out the invitation to comment that had been sent to the applicant following the hearing (at [58]-[61]).
The Tribunal then referred to the documents that had been provided in the post-hearing submissions and outlined the contents of the statement the applicant had provided with the post-hearing submissions (at [62]-[68]).
The Tribunal noted:
70. The issue in this review is whether the visa applicant meets Public Interest Criterion 4020 (PIC 4020) as required by cl.487.228 for the grant of the visa. Broadly speaking, this requires that:
• there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made: PIC 4020(1); and
• the applicant and each member of the family unit has not been refused a visa because of a failure to satisfy PIC 4020(1) during the period starting 3 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2) and (2AA); and
• the applicant satisfies the Minister as to his or her identity: PIC 4020(2A); and
• neither the applicant nor any family unit member has been refused a visa because of a failure to satisfy PIC 4020(2A) during the period starting 10 years before the application was made and ending when the visa is granted or refused, unless the applicant was under 18 at the time the application for the refused visa was made: PIC 4020(2B) and (2BA).
71. The requirements in PIC 4020(1) and (2) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa: PIC 4020(4). However, this waiver does not apply to the identity requirements in PIC 4020(2A) and (2B). PIC 4020 is extracted in the attachment to this decision.
The Tribunal then summarised the legal principles relevant to PIC 4020:
72. The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in the definition of bogus document to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Arora v MIBP [2016] FCAFC 35; Batra v MIAC [2013] FCA 274.
73. The requirement in PIC 4020(1) not to provide a bogus document, or false or misleading information, applies whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant: PIC 4020(3). It also applies whether or not the document or information was provided by the applicant knowingly or unwittingly.
74. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged. However, an element of fraud or deception by some person is necessary to attract the operation of the provision: Trivedi v MIBP [2014] FCAFC 42.
75. The Tribunal notes that the Full Federal Court in Trivedi’s case observed that it would be an intolerable or impossible burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the applicant who provided them knew them to be so. However, the court also held that an element of fraud or deception is necessary in order to attract the operation of Public Interest Criterion 4020. In other words, the court considered that there must be some element of knowledge or intention on somebody’s part because Public Interest Criterion 4020 is directed to information or documents which are purposely untrue, and they are not directed to innocent, or indeed unintended or accidental matters.
The Tribunal noted that the evidence before it included evidence that ‘CA’ was convicted of criminal offences pertaining to the provision of fraudulent work references for persons attempting to obtain permanent residence under the skilled migration program (at [76]). It also noted that information before it indicated that ‘CA’ had stated that he had provided references of this sort from Always Automotive (at [77]-[79]).
The Tribunal then referred to the evidence that the applicant had given the Tribunal to “rebut” the Tribunal’s concern that the work reference that the applicant provided was a “bogus document” (at [80]).
The Tribunal noted that Always Automotive had closed down and that this made it difficult for the Tribunal to meaningfully test the evidence (at [82]).
The Tribunal noted that the applicant could not provide “records of any type” (at [84]) but confirmed that it had had regard to the evidence from the applicant’s former flatmates – who “vaguely” remembered that the applicant had worked as a volunteer (at [85]).
The Tribunal continued:
86. The Tribunal finds that the evidence regarding CA’s criminal conviction along with the evidence that the applicant’s work reference was found in CA’s direct possession and was used as an exhibit in CA’s successful criminal prosecution is sufficiently probative evidence to satisfy the requirement in Trivedi’s case for there to be an element of fraud or deception on part of someone, if not the applicant, in order to attract the operation of Public Interest Criterion 4020.
87. The applicant has not provided evidence during the course of merits review before the AAT or indeed in merits review before the MRT, which in the view of the Tribunal is sufficiently probative to lead it to find that that there is no evidence that the applicant has given or caused to be given to persons including the Minister a bogus document or information that is false or misleading in a material particular in relation to the visa application.
88. The evidence before the Tribunal is that CA was convicted in the Country Court of Victoria of the production of up to 1000 fraudulent references which were used by visa applicants to submit to TRA in order to obtain a positive skills assessment, something that is required to meet the criteria for the grant of a Skilled visa. CA was convicted as a result of a Federal Police investigation and an investigation undertaken by the Department and on the basis of his own admissions. The evidence provided to the Country Court of Victoria was sufficiently probative for it to find beyond a reasonable doubt that CA was guilty of a range of fraud offences and as a consequence he was convicted and sentenced to a period of imprisonment.
89. The evidence found in the possession of CA included a reference that matched in material particulars that submitted by the applicant to TRA from Always Automotive and an admission by CA that one of the employers that he had engaged with for the purpose of the provision of false work references was Mr [‘FB’] the former proprietor of Always Automotive.
90. Conversely the evidence that has been submitted in rebuttal by the applicant is an assertion that he did not know and never met CA and that he did not pay any money for a reference and that he had completed 940 hours voluntary work. The Tribunal during the course of the review hearing attempted to elicit evidence from the applicant to corroborate his claimed voluntary work and how he was able to complete this whilst studying and meeting his cost of living expenses in Australia. The applicant provided statements from former flatmates stating that they provided some financial assistance to the applicant from time to time and the applicant also gave oral evidence pertaining to funds that he brought to Australia from India at the time he first arrived.
91. There is no evidence apart from the assertion that the applicant undertook this work such as records, corroborative statements from fellow employees or from the proprietor of the business or indeed from any other source
92. The Tribunal acknowledges that the applicant was familiar with the physical environment around the location of the former business Always Automotive but does not find that this evidence is sufficiently probative to lead to a finding that the applicant completed the claimed 940 hours of voluntary work as claimed. The Tribunal notes the applicant was able to provide generic answers to his purported duties during the time of his claimed voluntary employment, however the Tribunal finds that given the applicant’s completion of automotive studies as a student that this does not provide definitive evidence of him having completed the claimed experience. The Tribunal further notes that after the completion of his automotive studies the applicant has not undertaken any paid work in this area and has predominantly worked as a taxi driver for West Suburban Taxis.
93. Having regard to the totality of the evidence before it, the Tribunal finds that the applicant submitted a work reference from Always Automotive to TRA for assessment. The applicant then submitted a favourable skills assessment from TRA to the Department with his skilled visa application. Having regard to the evidence before it the Tribunal is unable to find that the circumstances envisaged in Trivedi’s Case in relation to innocent, unintended or accidental matters are applicable in this review.
The Tribunal continued:
94. The Tribunal accordingly finds that the applicant gave, or caused to be given, a ‘bogus document’ to the Department when he lodged his Subclass 487 visa application on 15 June 2009.
95. Having regard to the totality of the evidence before it the Tribunal considers that it is indicative of the fact that the applicant gave, or caused to be given, a ‘bogus document’ as defined by s.5(1) of the Migration Act.
96. The Tribunal consequently finds that it cannot be satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an Officer of the Department, the Tribunal or a relevant assessing authority a ‘bogus document’ in relation to his application for a Subclass 485 (Skilled - Graduate) visa.
97. The Tribunal accordingly finds that the applicant does not meet the requirements of paragraph 4020(1)(a) and subclause 4020(1).
The Tribunal then referred to the principles it was required to assess when deciding whether to “waive” the requirements of PIC 4020, as follows:
98. The requirements of PIC 4020(1) and (2) may be waived where there are compelling circumstances that affect the interests of Australia, or where there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen (as defined in r.1.03), that justify the granting of the visa. The decision-maker must first be satisfied that there are such circumstances, then must consider whether to exercise the discretion to waive the requirements, having regard to those circumstances: Kaur v MIBP (2017] FCAFC 184.
99.The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others.
The Tribunal referred to the applicant’s submission that the Tribunal should carefully consider whether to waive PIC 4020 because, by refusing to do so, the Tribunal risked unfairly punishing the applicant for ‘CA’’s fraudulent conduct (at [101]).
The Tribunal also explained that the applicant had submitted to it that the circumstances were “compelling” because, unless the waiver power was used, the applicant would suffer in a way that would undermine confidence in the Australian migration system and undermine the nation’s capacity to attract suitable applicants for skilled migration (at [103]).
In relation to whether there were compelling circumstances, the Tribunal noted that the applicant’s sister would suffer (at [104]) and referred in detail to the sister’s evidence in this regard (at [105]).
Having noted that it had had regard to the applicant’s submissions the Tribunal continued:
108.The Tribunal finds that the applicant and his representative have not identified any compelling circumstances that affect the interests of Australia that would warrant the waiver of PIC 4020. The Tribunal does not agree with the submission that the integrity of the visa system being compromised by the offending of CA and the effect that this has had on the ability to attract suitable skilled migrants is something that would be contemplated by this waiver provision. The consideration of the waiver provisions only comes into play if there has been a finding that an applicant has been caught out by PIC 4020 which requires that there is no evidence that an applicant in a visa application has provided false and misleading information in a material particular or a bogus document to the Department. The Tribunal has found that PIC 4020 does apply in this case and the Tribunal is of the view that there must be compelling evidence that affect the interests of Australia to overcome this finding.
109. There is no evidence before the Tribunal which suggests that Australia’s trade or business opportunities would be adversely affected, that its relationship with a foreign government would be damaged, or that Australia would miss out on a significant benefit that the applicant could contribute to Australia’s business, economic, cultural or other development if he is not granted a Subclass 487 visa.
110. The evidence before the Tribunal indicates that the applicant has undertaken and completed automotive studies in Australia. There is no evidence that he has undertaken paid work in this industry despite the fact that, as discussed with the applicant at hearing, it is an industry where there is a skills shortage in Victoria, the state in which he resides. Thus there is no evidence which could lead the Tribunal to find that as a result of the applicant’s completion of these studies Australia would miss out on a significant business, economic or cultural benefit if he was not granted a Subclass 487 visa to remain in Australia.
111. The Tribunal notes that the applicant has been in Australia for an extended period of time and that his sister has been in Australia since 2009 and that they are close. The Tribunal notes that the applicant resides in Victoria and his sister in Western Australia. The Tribunal finds that the sibling relationship between the applicant and his sister as described at hearing and in the submissions at review do not constitute factors that would give rise to a finding that PIC 4020 should be waived on the basis that there are compassionate or compelling circumstances that affect the interests of an Australian citizen-the applicant’s Australian citizens family members would suffer if he is not granted the visa. The Tribunal notes the considerable physical distance that exists between the applicant and his sister and her family. The Tribunal notes that there are now multiple ways that people can remain in contact whilst separated and given the uptake of new technology across the globe finds that the applicant and his sister and her family would be able to utilise this technology to remain in touch. The Tribunal accordingly finds that the separation of the applicant from his sister and her family does not constitute a sufficient basis for finding that PIC 4020 should be waived due to the existence of compelling and compassionate circumstances that affect an - Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.
112. The applicant has also claimed to have been suffering with depression and is on medication. A report dated 11 October 2019 from Dr Anthony Lo the applicant’s long term General Practitioner has been provided. This report states that in 2017 the applicant “suffered suicial (sic) thoughts as he had been involved in complicated and protracted legal proceedings around his visa to stay in Australia.” The report noted that the applicant is on medication for insomnia and on medication for major depression. Dr Lo describes the applicant as a calm pleasant and reasonable gentleman who has become distressed and depressed as a result of his struggle with the Australian immigration system. Dr Lo states that the applicant has not been “in a good psychological state of health due to the protracted nature of the legal proceedings, especially since most of the legal decisions have (sic) come down in his favour.” Dr Lo states that if the applicant were to leave Australia he would suffer an exacerbation of his depression which could endanger his health. The Tribunal has considered the opinion provided by the applicant’s general practitioner and does not dispute the findings. However there has been no evidence provided by a psychiatrist pertaining to the applicant’s diagnosis or with regard to the diagnostic tools that have been used to diagnose the applicant’s mental health condition. Nor has there been any evidence provided of a short or long term treatment plan for the applicant and the diagnosis by the general practitioner appears to have been made on the basis of self-reporting by the applicant and not in consultation with a consultant psychiatrist. The Tribunal also notes that throughout all of this the applicant has been able to maintain work as a taxi driver in Victoria.
The Tribunal was not satisfied that there were compelling circumstances that affected Australia’s interests or compassionate or compelling circumstances that affected the interests of an Australian citizen or permanent resident that would justify waiving the requirements of PIC 4020 and granting the visa (at [113]).
On the basis of the above, the Tribunal affirmed the delegate’s decision dated 30 August 2012 not to grant the applicant the visa (at [114]-[115]).
Proceedings in this Court
The application for judicial review dated 18 December 2019 contains 11 grounds of review as follows:
1. The AAT has made its decision based on circumstantial evidence that the employment experience letter is “bogus/fraudulent” based on the fact that the author of the letter is linked to a matter/person who was convicted for similar issues.
2. The AAT has no “real” evidence of the document being “bogus/fraudulent” other than (1) above
3. The AAT put the onus on the applicant to provide further evidence to prove that his experience is genuine.
4. Given the delay that the AAT process, the business which issued the letter is not in operation for many years.
5. The author of the letter is not contactable.
6. Accordingly, it is “unfair” for the AAT to make assumptions as in (1) above, and to put the onus on the applicant to provide further evidence that the document is genuine, when evidently (for (4) and (5), above) he cannot do so - as the matter is beyond the applicant’s personal control.
7. The matter is akin to the following hypothetical scenario: an applicant obtains qualifications via proper studies from a Registered Training Organisation (RTO). A few years later, the registration of the RTO that issued the Certificates for the qualifications is cancelled due to misconduct on the part of the licensee. The misconduct includes real evidence that the licensee has issued certificates to some students who may not have met the course requirements.
8. Does this mean that all students who may have passed their courses previously (few years ago) will also have their Certificates deemed as invalid/false/bogus?
9. Surely, in absence of direct and real evidence, it will be unfair on the previous students if their Certificates are deemed non-genuine – just because, at a later date, the registration of the RTO was cancelled due to relevant unrelated issues.
10. The applicant maintains that the experience is indeed genuine, and the letter is not a bogus document
11. As such, due to “no evidence” being available in the matter to the contrary, the document must be deemed as genuine and that PIC 4020 is indeed satisfied for the purposes of cl 485.224 of the Migration Regulations 1994.
The Court gave the applicant an opportunity to file an amended application, any affidavit evidence and an outline of written submissions. No further materials were provided.
The materials before the Court are thus limited to the judicial review application dated 18 December 2019, a Court Book numbering 592 pages (marked as Exhibit 1) and an outline of submissions filed by the Minister on 24 August 2020.
The Court confirmed with the applicant at the hearing that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was unrepresented, the Court gave him the opportunity to explain orally what he thought the Tribunal “did wrong”. This is the standard procedure in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained to him that the only issue before the Court was whether the Tribunal fell into jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. Further, for migration decisions of this sort, they most commonly include, but are not limited to, the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131] (“SZMDS”); Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant told the Court that the Tribunal did not have any proof that he was “guilty”. He explained that he had never met the person “who the Tribunal was trying to link him with.” The applicant reiterated that the Tribunal made false allegations and could not “prove” that he “did anything wrong”. He stressed that there “was no real evidence that he ever met ‘CA’” or paid him money.
The Court will address these submissions below.
Consideration
Interpreting the applicant’s grounds of review and oral submissions as broadly as possible, the Court has identified the following concerns:
a)the Tribunal came to an illogical decision in finding that the documents were “bogus” or there was “no evidence” that the document relied on by the Tribunal was, in fact, bogus (Grounds 1, 2 and 7-11);
b)the Tribunal imposed an unfair burden/onus on the applicant that required him to “prove” that the documents were genuine (Grounds 3-6).
It is convenient to set out PIC 4020 prior to considering the applicant’s concerns.
PIC 4020 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 Tribunal during the review of a Part 5 reviewable decision, 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 of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent 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.
Was the Tribunal’s conclusion “illogical” or was there “no evidence” to support the conclusion?
In effect, what the applicant challenges in his grounds of review is the Tribunal’s finding that the reference letter was “bogus”. He argues that the basis on which the Tribunal found the reference letter from Always Automotive (signed by the proprietor of Always Automotive (Mr ‘FB’)) was “bogus” was “reached in error” (i.e., the finding was illogical or not based on concrete evidence).
The substance of the applicant’s complaints in grounds 1-2 and 7-11 appears to be that the Tribunal is required to be positively satisfied that the document is not genuine. That is, the applicant appears to suggest that in the absence of “real” evidence, the Tribunal was required to find that the reference letter was, in fact, genuine.
“Bogus document” is defined in s.5 of the Act as follows:
bogus document, in relation to a person, means 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.
It is apparent from this definition and the use of “reasonably suspect” that the Tribunal is not required to positively find or determine that a particular document is bogus. Rather, the decision-maker need only hold a reasonable suspicion.
In Gill v Minister for Immigration & Border Protection [2017] FCAFC 51 it was stated (with reference to what was then s.97 of the Act (which was in the same terms as s.5 of the Act)):
90. The wording of s 97 of the Act has particular significance in the context of the appeal. The work experience letter can only be a “bogus document” within the meaning of that provision if the Tribunal “reasonably suspects” that it fell within one of the three categories defined in that provision. The phrase “reasonably suspects” is important. As the High Court observed in George v Rockett [1990] HCA 26; 170 CLR 104 (George v Rockett) at [12], with reference to s 679 of The Criminal Code (Qld) (which provided that a justice may issue a search warrant “[I]f it appears to a justice, … that there are reasonable grounds for suspecting…”) (footnotes omitted):
When a statute prescribes that there must be “reasonable grounds” for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. That was the point of Lord Atkin’s famous, and now orthodox, dissent in Liversidge v. Anderson: see Nakkuda Ali v. M.F. De S. Jayaratne; Reg. v. Inland Revenue Commissioner; Ex parte Rossminster Ltd; Bradley v. The Commonwealth; W.A. Pines Pty. Ltd. v. Bannerman. That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers: see, e.g., Attorney-General v. Reynolds. Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist…
91. These principles were recently reaffirmed by the High Court in Prior v Mole [2017] HCA 10 (Prior v Mole) at [4] per Kiefel and Bell JJ, [24] per Gageler J, [73] per Nettle J and [98] per Gordon J. Their Honours also emphasised that the test of reasonable grounds for “a belief” is objective.
92. In our opinion, the principles set out in George v Rockett and Prior v Mole are equally apposite to a provision such as s 97 of the Act, which does not refer to “reasonable grounds” or a “belief”, but instead uses the phrase “reasonably suspects”. Although it is clear that “belief” is more than “suspicion” (see George v Rockett at [14] and [15]), it is necessarily implicit in the phrase “reasonably suspects” that the facts and circumstances, objectively viewed, must be sufficient to induce the relevant state of mind, i.e. suspicion, in a reasonable person.
Here, in determining whether the letter from Always Automotive was bogus, the Tribunal noted the following evidence:
a)information that ‘CA’ was convicted in the County Court of Victoria of a range of criminal offences pertaining to the provision of fraudulent work references for students to use in their attempts to obtain permanent residence in Australia under the Skilled visa migration program (at [76]);
b)evidence indicating that on 11 November 2009 ‘CA’ participated in a formal taped record of interview with Departmental investigators in which he made numerous admissions to Departmental investigators with regard to his involvement in the production of hundreds of fraudulent documents spanning 40 different employers (at [77]);
c)the record of interview with ‘CA’ undertaken by Departmental investigators which provided the names of those complicit with this scheme. Always Automotive and the proprietor Mr ‘FB’ were expressly named (at [77]);
d)a statement of ‘CA’ provided to the Australian Federal Police pertaining to the provision of fraudulent documents used by students to obtain a visa outcome in Australia. ‘CA’ expressly noted in the record of interview that “these fraudulent documents were used by international students in support of skills assessment applications they submitted to TRA. The skills assessment was subsequently used in support of General Skilled Migration (GSE) visa applications lodged with DIAC.” (at [78]);
e)the record of interview with the Australian Federal Police on 21 April 2011 which referred to the interview with Departmental investigators on 11 November 2009 where ‘CA’ made numerous admissions to producing hundreds of fraudulent documents including an admission to Departmental investigators that work reference letters on letterheads of Always Automotive were produced (at [79]);
f)evidence that ‘CA’ was convicted in the Country Court of Victoria of the production of up to 1000 fraudulent references. The evidence provided to the County Court of Victoria was sufficiently probative for it to find beyond a reasonable doubt that ‘CA’ was guilty of a range of fraud offences and as a consequence he was convicted and sentenced to a period of imprisonment (at [88]); and
g)evidence found in the possession of ‘CA’ which included a reference letter that matched the letter that the applicant had submitted to TRA and an admission by ‘CA’ that one of the employers that he had engaged with for the purpose of providing false work references was Mr ‘FB’ (the former proprietor of Always Automotive) (at [89]).
The applicant was provided an opportunity to “rebut” that evidence and explain why it was not probative. The Tribunal noted that the applicant stated as follows:
a)he explained that he had never met or seen ‘CA’, did not pay any money for a reference and had completed 940 hours voluntary work (at [81] and [90]);
b)he said he was not able to provide “records of any type” pertaining to his claimed period of voluntary employment at Always Automotive. He asserted that no such records existed and, as the business had closed down, he was now unable to obtain any corroborative evidence from Mr ‘FB’ (at [84] and [91]);
c)he provided post hearing statements from former flat mates who claimed that they had lived with the applicant in shared accommodation at the time the applicant was undertaking his claimed employment with Always Automotive. One stated that there was a “period of a few months when he was working as a volunteer at an auto mechanic business” and another stated that he “vaguely” remembered that the applicant was working as a volunteer at an automotive business (at [85]); and
d)he stressed that he had demonstrated that he was familiar with the physical environment around the location of the former business Always Automotive, was able to provide generic answers to his purported duties during the time of his claimed voluntary employment at Always Automotive and, since the completion of his automotive studies, he had not undertaken any paid work in the automotive area (at [92]).
It is apparent from the Tribunal’s reasons that it determined that the evidence that the applicant had provided was not sufficiently probative for the Tribunal to find that he had not given a bogus document “to the Minister” (at [87]). The Tribunal referred to there being no evidence other than an “assertion” from the applicant (at [91]) and noted that the applicant’s knowledge about, and completion of, his studies was not definitive or sufficiently probative of him having completed the relevant work experience (at [92]). Hence, the applicant’s evidence did not outweigh or remove the suspicions that the Tribunal had – suspicions which arose on the other materials that were before it.
While the applicant may not agree with the Tribunal’s conclusions in this regard, there was clearly evidence before the Tribunal that would allow it to “reasonably suspect” that the skills assessment from TRA was obtained because of a “false or misleading statement” from Mr ‘FB’ at Always Automotive. In the circumstances, it was entirely logical for the Tribunal, on all of the materials before it, to hold a reasonable suspicion that the reference letter was fraudulent. The Tribunal’s reasons for finding that the applicant’s “rebutting” evidence was not sufficiently probative was entirely sound.
Here, as highlighted by the Minister, the investigative material relied upon by the Tribunal was circumstantial evidence demonstrating that the reference provided to the TRA was likely to be attenuated by fraud. That evidence was clearly probative. Further, the applicant’s work reference letter was found on the USB of the ‘CA’ (who had admitted to making false references). This too was probative.
As confirmed in Gill (at [37]) and Verma v Minister for Immigration and Border Protection [2018] FCAFC 87 at [37], the Tribunal only needed to be satisfied that there was some probative evidence that the applicant had provided a bogus document.
As correctly contended by the Minister before this Court, the Tribunal’s task here was to consider whether there was material before it that was sufficiently probative to lead it to reasonably suspect that the reference letter from Always Automotive contained a statement that was false or misleading in a material particular. If the Tribunal concluded that there was such material, it could not then conclude that PIC 4020 was satisfied.
In light of the information concerning ‘CA’ that was before the Tribunal, it cannot be said that no decision-maker could not have held a “reasonable suspicion” that the letter from Always Automotive was not genuine: SZMDS. In the circumstances, it cannot be said that the Tribunal erred by concluding that PIC 4020 was satisfied.
Grounds 1-2 and 7-11 do not identify any error in the Tribunal’s decision.
Was an impermissible onus imposed?
In ground 3, the applicant argues that the Tribunal imposed an unfair “onus” on him to “provide further evidence”.
As the Tribunal correctly stated, it is for the applicant to supply the relevant facts and evidence in support of their case to meet the relevant visa criterion: Abebe v Commonwealth (1999) 197 CLR 510 (“Abebe”).
Here, the Tribunal expressly acknowledged the difficulty the applicant had in obtaining “corroborative evidence” from the employer. It took this into account and noted that many applicants were in the same position. The Tribunal assessed all of the evidence that the applicant had provided in “rebuttal” but was simply not satisfied that the evidence provided was sufficiently probative.
Here, the Tribunal undertook a careful analysis of the materials that were before it and weighed the evidentiary materials accordingly. It was not satisfied on the basis of that evidence that the document from Always Automotive was not a bogus document.
While the applicant (as he states in ground 6) might consider it unfair that he is required to satisfy the Tribunal that a document is not bogus (and in difficult circumstances), the Tribunal did not impose an impermissible onus on the applicant. It was, and remains, an applicant’s responsibility to satisfy the Tribunal that they should be granted the visa: Abebe.
Section 65 requires positive satisfaction of the criterion of the visa. It does not assume that, in the absence of evidence the applicant does not meet criteria, they are taken to meet the criteria.
Further, to the extent that the applicant states in ground 4 that the “delay” in the Tribunal process meant that it had been “some years” since Always Automotive closed and, as such, it was more difficult for him to contact persons associated with Always Automotive, this does not amount to jurisdictional error.
Again, the Tribunal acknowledged the difficulties the applicant faced in obtaining evidence. It noted (at [87]) that the applicant had not provided any evidence to the previously constituted Tribunal (whose decision was made four years earlier) that was sufficiently probative. Further, the delegate had also invited the applicant to comment and provide information as early as 2011.
Accordingly, while the time period between the applicant’s alleged work experience at Always Automotive (in 2008 and 2009) and the Tribunal’s ultimate disposition of the matter (in 2019) was undeniably lengthy, it cannot be said that that deprived the applicant of procedural fairness or a real and meaningful opportunity to present evidence and arguments.
Grounds 3-6 are, accordingly, dismissed.
Conclusion
The application for judicial review has failed to identify any error. The Court has otherwise been unable to identify any jurisdictional error.
The application is, accordingly, dismissed.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 25 September 2020
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