Singh v Minister for Immigration

[2017] FCCA 1923

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1923

Catchwords:
MIGRATION – Application for judicial review – skilled visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 359A

Cases cited:

Singh v Minister for Immigration and Border Protection [2016] FCAFC 141

Gill v Minister for Immigration and Border Protection [2016] FCAFC 142

Applicant: KULDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1942 of 2015

Judgment of: Judge Riethmuller

Hearing date: 21 July 2017

Date of Last Submission: 21 July 2017

Delivered at: Melbourne

Delivered on: 21 July 2017

REPRESENTATION

Counsel for the Applicant: Mr Sorensen

Solicitors for the Applicant: Goz Chambers Lawyers

Counsel for the First Respondent: Ms Symons

Solicitors for the First Respondent: DLA Piper

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1942 of 2015

KULDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application concerning a Skilled (Provisional) (Class VC) (Subclass 487) visa. The applicant is a citizen of India who, in May 2009, applied for the skilled provisional visa. In support of his application, a document from Trades Recognition Australia (“TRA”) was provided, giving a skills assessment of his skills and his nominated occupation as a cook, including a work reference letter from Ms Huda Madour, who was said to be the owner and head chef at Salera’s Pizza and Pasta.

2. This was a three-page document, dated 3 August 2008, setting out the various things the applicant was said to have done whilst undertaking 920 hours of unpaid work experience.  Subsequent to that, investigations revealed that Ms Madour was named by Mr A who had been conducting large-scale frauds on the Department with respect to TRA Assessments. 

3. In short, Mr A was discovered with a USB stick containing a very large number of references, and Mr A admitted that they were false references and that he had been engaged in a fraudulent program of selling false references to assist to obtain visas.  He specifically named Ms Madour.  The difficulty that confronted the applicant in this case was that it transpired that the work reference that he relied upon was contained on the USB stick of Mr A.  Not surprisingly, the Department formed a view that this appeared to be a bogus document and proceeded to consider cancelling his visa.  The delegate cancelled the visa and the applicant sought review by the Tribunal.  Prior to the delegate cancelling the visa, the delegate had written to the applicant, asking him to comment upon adverse information. 

4. The process of cancellation involves consideration of whether or not the Tribunal reasonably suspected that the skills assessment and the reference were a bogus document within the meaning of s.5 of the Migration Act 1958, which provides 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.

5. The delegate concluded that the applicant had lodged the visa application in May 2009, and in March 2012 he had provided to an officer a skills assessment from the TRA and that skills assessment had been obtained by him supplying the work reference to the TRA. 

6. Before the Tribunal, the applicant gave evidence that he had undertaken over 900 hours of paid work and provided references from three people who he said were customers, Waleed K., Mohammed R., and Ahmed R., saying that they had visited the pizza and pasta restaurant and seen Mr Singh there and that Mr Singh had provided them with “friendly service”. The Tribunal provided the applicant with notice under s.359A of material against him, as outlined in the decision at para.29. In substance, he was advised of inquiries into Mr A to the extent they related to his matter and the location of the reference on Mr A’s USB memory stick.

7. The applicant was heard by the Tribunal and gave evidence with respect to the matter.  Ultimately, the Tribunal concluded, after having heard the whole of the evidence, that is, both the applicant’s evidence and the evidence from the fraud investigations, that it did reasonably suspect that the skills assessment was a bogus document (see para.33 of the Tribunal decision).  The Tribunal then went on to consider whether or not there were reasons to waive the requirements of PIC 4020 and concluded that there were not such reasons. 

8. The applicant, relying upon the recent decision of Singh v Minister for Immigration and Border Protection [2016] FCAFC 141 (a different Mr Singh) and the decision of Gill v the Minister for Immigration and Border Protection [2016] FCAFC 142, seeks judicial review of the decision, arguing that the Tribunal had failed to make specific findings as to the extent of his involvement in any fraud that took place. It seems to me that one must first identify precisely what the applicant’s case was before the Tribunal and is now, before one can turn to consider the impact of the decisions of the Full Court in Gill and, more importantly, Singh.

9. On the applicant’s case, he undertook the work and obtained the work reference and relied upon it to obtain a genuine TRA assessment. On the Minister’s case, the TRA assessment was bogus because the work reference was bogus, and the Minister relied upon the very strong circumstantial evidence that arises from locating a copy of the reference upon the USB stick of a fraudster. It is true that the Minister did not have direct evidence to prove the negative proposition that the applicant had not worked as claimed, but had to rely upon the circumstantial evidence of finding a copy of the work reference on the USB stick of the fraudster and, indirectly, the admissions of the fraudster.

10. Quite fairly, the applicant in this case was critical of any reliance upon the fraudster’s evidence, which follows logically, given that once a person has made admissions of fraud, it is difficult to place any significant weight upon their testimony about matters.  However, this did not change the objective fact that the document or copy of the document was located on the USB stick of the fraudster, and it is difficult to see what rational explanation could have been provided for such a circumstance had the applicant not relied upon a fraudulent document. 

11. The Tribunal decision, it seems to me, was open to it on the material that it had before it after weighing up the applicant’s direct evidence as to his employment and the evidence he brought against the circumstantial evidence, primarily as a result of the location of the copy of the reference. 

12. The applicant argues that the Tribunal had erroneously interpreted the law because he had no relationship with Mr A, at least on the case that he put.  It does not seem to me that it was necessary for the Tribunal to make a finding specifically as to whether or not he had a relationship with Mr A, as it was concerned with determining whether or not it reasonably suspected that the document was bogus. 

13. It is also said that the Tribunal failed to afford him procedural fairness by failing to allow him to answer all the matters that went to his credit. It seems to me that the Tribunal provided him with ample notice of the issues, particularly in light of the s.359AA invitation to respond to information and the decision that had been made by the delegate beforehand.

14. The argument pressed forcefully by counsel for the applicant was that the Tribunal failed to make a specific finding as to the extent of the applicant’s involvement in any fraudulent act. It seems that, at best, this becomes an argument to the effect that whilst the applicant obtained the reference that he says was submitted to the TRA from his employer (see para.39, third-last sentence), that in some way, either his agent or somebody else replaced it with a fraudulent document or, for some other unexplained reason, a copy of it ended up on the USB stick of the fraudster.

15. It appears to me that this is not a case in the style of Singh where the issue was whether or not the agent had ever been instructed to make application for the particular visa category type that the applicant had formally sought from the Department or was aware or indifferent to a fraud by an agent.  This is a case where the applicant was actively pursuing this particular visa and, on the applicant’s case, a genuine work reference was provided.  The real issue in this case was simply whether or not the reference provided was genuine or bogus, which turned upon whether or not to accept the direct evidence of the applicant or rely upon the circumstantial evidence of the document or copy of the document being found on the fraudster’s USB stick.  The case as articulated to the Tribunal did not go higher than that and was not put as a case that the applicant had not sought to obtain this type of visa or, in some other way, was distanced from the fraud involved.  This is certainly not a case where the applicant ever suggested that this was not a visa application that he had ever sought to progress.  It therefore seems to me that these arguments do not provide a proper basis for judicial review, but in reality are only an argument to pursue a merits review on the facts and circumstances of the case. 

16. Certainly, the proposition that, in theory, the agent may have shared the reference with Mr A does not actually seem to be open on the material, as the USB version at Court Book p.152 does not contain a signature, whereas the version that was supplied to the TRA does contain a signature and the documents have a letterhead on them that, whilst certainly able to be reproduced, is somewhat distinctive and does not appear to be consistent with some form of typed copying or keyed copying, and the absence of a signature would be completely inconsistent with copying by some form of scanning.  None of these propositions were put to the Tribunal.  

17. The substance of the argument, effectively being merits review is to run some other case theory which seems exceedingly unlikely (that is, that for some unknown reason, the agent replaced the reference with a bogus one or that the agent, in some way, had given the genuine reference to Mr A). Such a case theory simply does not seem to have been run before the Tribunal, nor is it sufficiently rational in my view, that one would have expected the Tribunal to have specifically considered it.

18. In the circumstances, I am not persuaded that the applicant has established a ground for judicial review, and in these circumstances, I ought to dismiss the application. The application is therefore dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  14 August 2017