Singh v Minister for Immigration

[2017] FCCA 1177

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1177

Catchwords:
MIGRATION – Review of former Migration Review Tribunal decision – refusal of a skilled residence visa – provision of a bogus document – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.97

Migration Regulations 1994 (Cth)

Applicant: BHUPINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2863 of 2014

Judgment of: Judge Driver

Hearing date: 1 June 2017

Delivered at: Sydney

Delivered on: 1 June 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Keevers of Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2863 of 2014

BHUPINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant, Mr Singh, seeks review of a decision of the former Migration Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 18 September 2014.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant Mr Singh a skilled residence visa.  Background facts relating to this matter are set out in written submissions filed on behalf of the Minister on 26 May 2017.   

2. Mr Singh is a citizen of India[1]. On 7 March 2012, Mr Singh lodged an application for a skilled residence visa[2]. On 2 May 2014, a delegate of the Minister refused the grant of the visa[3]. The delegate found that Mr Singh had provided to the Minister’s Department (Department) a bogus IELTS[4] document within the meaning of s.97 of the Migration Act 1958 (Cth) (Migration Act). Therefore, the delegate found that Mr Singh did not satisfy Public Interest Criterion 4020 (PIC 4020) and, as a consequence, the applicant did not satisfy clause 885.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations)[5].

   [1] Court Book (CB) 5

   [2] CB 1

   [3] CB 74

   [4] International English Language Testing System

   [5] CB 83

3. On 19 May 2014, Mr Singh lodged with the Tribunal an application for review of the delegate’s decision[6]. On 21 August 2014, the Tribunal wrote to Mr Singh, inviting him to appear at a hearing on 9 September 2014[7]. Mr Singh appeared at the hearing with the assistance of a Punjabi interpreter[8]. Mr Singh’s migration agent appeared by telephone. On 11 September 2014, Mr Singh wrote to the Tribunal in respect of matters raised with him at the hearing[9].  On 18 September 2014, the Tribunal affirmed the decision under review.

   [6] CB 86

   [7] CB 105

   [8] CB 124

   [9] CB 134

4. On 16 October 2014, Mr Singh filed an application to show cause in this Court.

Tribunal decision

1. The Tribunal noted that Mr Singh had submitted to the Department evidence of his language proficiency in the form of a test report dated 3 December 2011, but the photograph appearing on the report did not match the photograph on the test provider’s online verification website[10].

   [10] CB 139, 140 at [3], [8] and [9]

2. The Tribunal recorded that it had contacted the IELTS testing authority and had been advised that the photo on the test report presented had been tampered with, and the photo taken on the test day was the one visible on the online verification website. The testing authority compared the individual’s photo to other test date photos taken of Mr Singh at more recent test sessions, and drew the conclusion that the person who sat the 3 December 2011 test was an imposter[11].

   [11] CB 140 at [11]

3. At the hearing, Mr Singh agreed that the photo of the candidate from the online verification system was not of him[12]. The Tribunal put the above information to Mr Singh. Mr Singh requested an adjournment and was granted two days to provide a written response[13].

   [12] CB 141 at [18]

   [13] CB 140 at [12]

4. The Tribunal considered Mr Singh’s response, but found that the photograph of the candidate as it appeared on the IELTS online verification website was not the same as the photograph appearing on the test report form. The Tribunal accordingly considered that there was sufficient material before it to have a reasonable suspicion regarding the test report form[14].

   [14] CB 142 at [19]

5. On the basis of the information before it, the Tribunal suspected that the test report form submitted to the Department was a “bogus document”[15]. The Tribunal noted that it had invited Mr Singh to make submissions at the hearing as to whether there were compelling or compassionate circumstances for the requirement in PIC 4020 to be waived, but that Mr Singh had declined to do so[16]. The Tribunal was not satisfied that there were compelling or compassionate circumstances to waive the requirements of PIC 4020 and found on this basis that Mr Singh did not satisfy PIC 4020 and therefore clause 885.224 of Schedule 2 to the Regulations[17].

   [15] CB 143 at [22]

   [16] CB 143 at [24]-[25]

   [17] CB 144 at [27]-[28]

6. The Tribunal further found that, in the circumstances, Mr Singh did not satisfy the requirement to have competent English, as required by clause 885.213 of Schedule 2 to the Regulations and further defined by regulation 1.15C of the Regulations[18]. Accordingly, the Tribunal affirmed the decision under review.

   [18] CB 144 at [30]-[34]

The present proceedings

1. These proceedings began with a show cause application filed on 16 October 2014.  Mr Singh continues to rely upon that application.  It is supported by a short affidavit filed with it, which I received as evidence, save for paragraph 5, which I received as a submission. 

2. I also have before me as evidence the court book filed on 12 December 2014. 

3. I invited oral submissions from Mr Singh, who was supported by his wife.  They are adamant that Mr Singh was not at fault in relation to the apparent photo substitution in the test report in issue.  Nevertheless, it is clear from the Tribunal’s reasons that photo substitution had occurred, and the Tribunal was entitled to draw the conclusions it did from the available material. 

4. Contrary to Mr Singh’s submissions, there was nothing illogical about the Tribunal’s reasoning, and there was no unfairness in the process followed by the Tribunal.  It is true that Mr Singh submitted three additional IELTS test report forms to the Tribunal, but those were expressly considered by the Tribunal and did not overcome its concerns.  I otherwise agree with the Minister’s submissions on the grounds of review advanced.

Ground 1

1. By Ground 1, Mr Singh contends that the Tribunal failed to consider his response regarding the IELTS examination test and failed to weigh his “contradictory evidences” that he was the person who sat the IELTS examination on 3 December 2011.

2. Mr Singh’s contention cannot be sustained. The Tribunal plainly did have regard to Mr Singh’s post-hearing response, extracting the relevant portion[19] and explicitly confirming that it had considered the response[20]. To the extent that Mr Singh could be understood to contend that the Tribunal did not consider Mr Singh’s statement that he undertook the IELTS test on 3 December 2011 and the IELTS test report that showed his photograph, it is plain that the Tribunal did have regard to this evidence[21].

   [19] CB 142 at [18]

   [20] CB 142 at [19]

   [21] CB 142-143 at [19]-[21]

3. Ground 1 does not demonstrate any jurisdictional error on the part of the Tribunal.

Ground 2

1. By Ground 2, Mr Singh contends that the Tribunal failed to consider three additional IELTS test reports which bore varied images of Mr Singh and failed to consider that he had travelled to India at the time of the test and was present at the test centre on the date of the examination.

2. The Tribunal did not overlook Mr Singh’s submission that his image appeared differently across the three additional IELTS test reports, but rather had explicit regard to this submission[22]. It had regard not only to the disparity between the photograph on the IELTS test report provided by Mr Singh in respect of the test undertaken on 3 December 2011 and that appearing on the online verification system, but also the testing authority’s advice  in respect of other IELTS tests purportedly undertaken by Mr Singh[23].

   [22] CB 142 at [19]

   [23] CB 142 at [19]

3. The Tribunal went on to note the similarities in the scores set out in the three additional IELTS test reports and their marked difference with the scores in the report relied upon by Mr Singh[24]. The Tribunal found that a person with the same name and date of birth as Mr Singh had attended IETLS tests at a testing centre in India on 24 September 2011 and 3 December 2011[25].

   [24] CB 142-143 at [20]

   [25] CB 143 at [20]

4. The Tribunal found that, even if it were the case that Mr Singh had appeared for an IELTS test on 3 December 2011, it was not satisfied that the results provided by Mr Singh were his own. The Tribunal concluded on this basis that the IELTS test report in respect of the test taken on 3 December 2011 was a bogus document within the meaning of s.97 of the Migration Act[26]. That finding was open to the Tribunal on the evidence before it and for the reasons it gave, and in the circumstances, Ground 2 cannot be sustained.

   [26] CB 143 at [22]

5. I conclude that Mr Singh is unable to demonstrate that the decision of the Tribunal was affected by any jurisdictional error.  The decision is therefore a privative clause decision, and the application must be dismissed.  I will so order. 

6. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $5,800.  Mr Singh did not wish to be heard on the issue of costs.

7. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  6 June 2017