SINGH v Minister for Immigration

[2017] FCCA 2931

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2931

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where Tribunal found English language test results to be a bogus document – where Applicant did not attend Tribunal hearing – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5C, 359A, 360A, 362B, 379A(5)(b), 379C

Migration Regulations 1994 (Cth), sch.2, cls.885.224, 885.213, 4020(1)

Applicant: AVTAR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 664 of 2016

Judgment of: Judge Hartnett

Hearing date: 30 October 2017

Delivered at: Melbourne

Delivered on: 30 October 2017

REPRESENTATION

The Applicant: In Person

Solicitor acting as Counsel for the First Respondent: Mr Grant

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 664 of 2016

AVTAR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made on 8 March 2016 by which the Tribunal affirmed a decision of a delegate of the First Respondent (‘the delegate’) not to grant to the Applicant a Skilled (Residence) (Class VB) visa (‘the visa’). 

2. The grounds of application, in general terms, simply recite the procedural history of the Applicant from the time of his arrival in Australia in July 2007 on a student visa.  They are not grounds of judicial review. The only possible ground is ground 5 which is as follows:-

   “I wish to apply in Federal Court on the grounds that department did not paid heed towards my email and gave the decision without providing any future extension.”

3. The First Respondent seeks that the application be dismissed and costs follow the event on the basis that no jurisdictional error attends the Tribunal’s decision. 

History

1. The Applicant applied for the visa on 20 April 2012.  In applying for the visa, the Applicant had to meet a range of criteria which included cl.885.224 of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). Clause 885.224 required, amongst other things, that the Applicant satisfy public interest criterion (PIC) 4020. PIC 4020 required that there be no evidence that the Applicant had provided a “bogus document” or information that was false or misleading in a material particular to a relevant entity.

2. At the time of the visa application, cl.885.213 of the Regulations also required that an Applicant have competent English.  At or around the time of his application, the Applicant provided an International English Language Testing System (IELTS) test report form for a test dated 21 January 2012 that showed the Applicant had achieved scores of 8.5 in listening, 6.5 in reading, 6.5 in writing and 6.5 in speaking. 

3. On 25 February 2014 the Department of Immigration and Border Protection (‘the Department’) wrote to the Applicant to invite him to comment on adverse information in relation to his visa application.  The Department informed the Applicant that on conducting checks to verify the results on the IELTS test report form he provided, it had received information that the results of the IELTS test did not reflect those that were submitted with the visa application. 

4. On 19 March 2014 the Applicant replied to the delegate, stating that he did not know that this had happened; that there was nothing wrong with his paperwork; and that he had unsuccessfully tried to find out from the test provider why the online results showed his scores as “zero.” 

5. On 24 March 2014 the delegate refused to grant the visa on the basis that the Applicant did not satisfy the requirements of cl.885.224 of Schedule 2 to the Regulations because the delegate was of the view that the Applicant had submitted a bogus document, namely, the IELTS test report form dated 21 January 2012 to the Department. 

6. On 8 April 2014 the Applicant lodged an application for review of the delegate’s decision with the Tribunal. 

7. By letter dated 29 January 2015 the Applicant was invited to attend a hearing before the Tribunal on 2 March 2015.

8. On 9 February 2015 the Tribunal sent, pursuant to s.359A of the Migration Act 1958 (Cth) (‘the Act’), a letter to the Applicant inviting his comment on ‘adverse’ information, that information being that, when the delegate sought to verify the scores provided in the IELTS test the Applicant provided in support of his visa application, he was informed that the results for each test were 0.0 and that the results were cancelled due to “candidate malpractice”. This was relevant to whether the Applicant satisfied PIC4020 and invited the Applicant to provide any submissions as to why, if the Tribunal found PIC4020 was not satisfied, PIC4020 should be waived.

9. On 2 June 2015 the Tribunal, differently constituted, affirmed the delegate’s decision. 

10. The Applicant then applied for judicial review of the Tribunal’s decision and on 29 September 2015 the matter was remitted by consent back to the Tribunal by the Court. 

11. Following remittal, on 11 January 2016, the Tribunal invited the Applicant to attend a hearing before it scheduled for the 8^th day of March 2016 at 10.000am.  The invitation to attend the hearing advised the Applicant:-

    “We have considered the material before us but we are unable to make a favourable decision on this information alone.  You are invited to appear before the Administrative Appeals Tribunal (AAT) to give evidence and present arguments relating to the issues arising in your case

    …”

12. The ‘invitation to attend a hearing’ letter, also advised the Applicant that any additional documents or information to be relied upon by him at the hearing should be provided by 1 March 2016.  The Applicant was also advised:

    “…

    If you are not able to attend the hearing you should advise us as soon as possible.  Please note that we will only change this date if satisfied that you have a very good reason for being granted an adjournment.  If we do not advise you that an adjournment has been granted, you must assume that the hearing will go ahead.  If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.”

13. On 19 February 2016 the Applicant returned the ‘response to hearing invitation’ form to the Tribunal indicating that he would take part in the hearing. 

14. On the 1^st and 7^th days of March 2016 the Tribunal sent the Applicant two SMS hearing reminder text messages to his mobile phone number nominated on his application for review. 

15. On 8 March 2016 the Applicant failed to attend the scheduled hearing before the Tribunal. 

The Tribunal hearing

1. The Tribunal noted that it had before it the Departmental file relating to the Applicant; the Migration Review Tribunal’s file relating to the Applicant; had regard to the material referred to in the delegate’s decision; and had other material available to it from a range of sources. 

2. The Tribunal noted that under s.362B(1) of the Act it had a discretion confirmed by s.362B(2) to reschedule the Applicant’s appearance before it or to delay its decision on the review in order to enable the Applicant’s appearance to be rescheduled. The Tribunal noted in paragraph 9 of its Statement of Decision and Reasons (‘the Decision Record’) that it:-

   “Must exercise its power under section 362B “reasonably” and, that reasonableness is informed by the factual circumstances in respect of this particular review and this particular Applicant.”

3. The Tribunal further noted in paragraph 10 of the Decision Record:-

   “The Tribunal notes that it is under no statutory obligation to seek to contact the Applicant to inquire as to the reasons for the non-attendance.  In SZHSQ v MIMA5 the Federal Court commented that the Act expressly authorises the Tribunal to proceed without making such inquiries.  Similarly, in SHAH v MIAC7 the Federal Magistrates Court commented that to impose a requirement that the Tribunal take steps to ascertain whether an Applicant wishes to have a further opportunity to appear following their non-appearance at a scheduled hearing would undermine the administrative certainty sought to be achieved by the deemed receipt provisions applicable to the sending of hearing invitations.”

4. In considering whether it would be appropriate for the Tribunal to exercise its discretion in the Applicant’s favour, the Tribunal took into account its legal obligations under the Act to pursue the objective of providing a mechanism of review that was fair, just, informal, economical and quick.

5. The Tribunal also considered the following matters at paragraphs 12 to 14, inclusive, of the Decision Record:

   a)that the hearing invitation was sent to the Applicant more than eight weeks prior to the scheduled hearing to the email address provided by the Applicant to the Tribunal; 

   b)that the Applicant was provided with an opportunity to submit any additional documents or information by 1 March 2016 but had not done so; and

   c)that the Applicant indicated in his “response to hearing invitation” that he would take part in the hearing but had not made any further contact with the Tribunal indicating that he was unable to attend.

6. Having regard to the factual circumstances considered by it and pursuant to s.326B of the Act, the Tribunal determined to make its decision on the review without taking any further action to enable the Applicant to appear before it.

7. The Tribunal concluded that the decision under review should be affirmed.

The Tribunal decision

1. The Tribunal did not accept the Applicant’s explanation for the discrepancy in the IELTS test score results he provided in the visa application and that obtained by the delegate on conducting the integrity checks. The Tribunal inferred that a person other than the Applicant undertook the IELTS test on 21 January 2012 which, indeed, appeared to be confirmed by the Applicant himself on the hearing of his application this day, wherein he indicated to the Court that he did not sit the test, and, therefore, that the test report form was obtained because of a false or misleading statement. The Tribunal was satisfied that the IELTS test report form was a bogus document within the meaning of s.5C of the Act.

2. Having concluded that the Applicant did not meet PIC4020(1), the Tribunal went on to consider whether the requirements of PIC4020(1) should be waived.  The Tribunal was not satisfied that the requirements should so be waived. The Tribunal noted the Applicant had not provided any material to it in relation to PIC4020(4). In failing to appear at the hearing, the Tribunal was unable to take evidence from the Applicant in relation to PIC4020(4).

3. The Applicant raised the following matters in his grounds of application:-

   “(8) On 08.03.2016 AAT invited to comment on my case and provide the documents.

   (9) As per required, I emailed them all the documents a few days prior to the hearing. 

   (10) One day before the hearing I feel sick and urgently rushed to doctor.  I also notified AAT of this emergency situation but they refused to postpone my hearing. 

   (11) I tried my best to reach and provide evidences at decided date and time of hearing but, due my illness, I was not capable to do so.”

4. The Applicant submitted to the Court, both in written submissions and oral submissions made this day, that he wished for the Court to enable him to:-

   “Definitely provide new English score which is competent English and I can get my visa back because I am living in Australia from over 10 years and I am socially and emotionally attached with country.”

5. In essence, the Applicant sought from the Court an ability to undertake a further English language testing procedure. 

6. There is nothing contained in the evidence before the Court that indicates that the Applicant provided any further material, as claimed by him, to the Tribunal prior to the hearing, nor is there any evidence to support the Applicant’s assertion that he made contact with the Tribunal advising that he was unable to attend the scheduled hearing.  Those contentions of the Applicant on the evidence are not sustained, and are rejected by the Court. 

7. The Tribunal’s decision to proceed under s.362B of the Act was a proper exercise of its discretion. The Tribunal considered the Applicant’s claims and made findings open to it on the evidence before it in relation to whether the Applicant satisfied PIC4020 and, if not, whether there were grounds for a waiver of those requirements.

8. The Tribunal did all it was required to do in its invitation to the Tribunal hearing. The invitation was despatched by email in accordance with s.379A(5)(b) of the Act and complied with the requirements of s.360A of the Act.

9. Pursuant to s.379C(5) of the Act, the Applicant was taken to have received the hearing invitation on 11 January 2016. Indeed, the Applicant expressly confirms that he received the hearing invitation. Further, the Applicant was sent two SMS hearing reminders and he did not contact the Tribunal to seek to have the hearing adjourned. There was nothing “unreasonable” in the Tribunal proceeding to make its decision pursuant to s.362B of the Act and no errors arise in that regard.

10. The Tribunal correctly applied the relevant law to the facts before it. No jurisdictional error attends its decision and the application must be dismissed with costs. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  28 November 2017