Singh v Minister for Immigration
[2017] FCCA 721
•13 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 721 |
| Catchwords: MIGRATION – Migration Review Tribunal – Skilled (Provisional) (Class VC) Visa – the Department received information that an IELTS test was undertaken by an imposter – applicant requested access to IDP investigation – whether the Tribunal was required to give the applicant access to an IDP email that said no investigative information had been retained – whether breach of s.362A – whether breach of s.360. |
| Legislation: Migration Act 1958, ss.359A, 362A, 368(1), 375, 375A Migration Regulations 1994, sch.2, cls.485.215, 485.224 |
| Cases cited: Singh v Minister for Immigration [2015] FCCA 533 |
| Applicant: | AMRITPAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 90 of 2015 |
| Judgment of: | Judge Riley |
| Hearing date: | 8 February 2017 |
| Date of last submission: | 8 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 13 April 2017 |
REPRESENTATION
| Counsel for the applicant: | Georgina Costello |
| Solicitors for the applicant: | Erskine Rodan & Associates |
| Counsel for the first respondent: | Liam Brown |
| Solicitors for the first respondent: | Sparke Helmore Lawyers |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Sparke Helmore Lawyers |
ORDERS
The title of the proceeding be amended so that the name of the second respondent is “Administrative Appeals Tribunal”.
The application filed on 19 January 2015 and amended on 10 February 2017 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 90 of 2015
| AMRITPAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Background
One of the criteria for the grant of the visa was competent English.[1] The applicant said in his visa application that he had undertaken an IELTS[2] test on 30 July 2011 with reference number 11IN018658TA120A and had been assessed as having competent English.
[1] Clause 485.215 of Schedule 2 to the Migration Regulations 1994.
[2] International English Language Testing System.
A delegate of the Minister wrote to the applicant via his authorised recipient on 3 August 2012. The letter invited the applicant to comment on adverse information received from the International Development Program Education Pty Ltd Audit and Investigation Unit (“IDP”) that:
a)it appeared that an imposter had undertaken the IELTS test the applicant claimed to have undertaken; and
b)IDP had cancelled the results of the applicant’s test and reduced all of his scores to zero.
The letter also advised the applicant that:
a)a requirement of the visa was that the applicant met public interest criteria (“PIC”) 4020[3];
b)PIC 4020 required that there be no evidence that the applicant had given information to the Minister that was false or misleading in a material particular;
c)PIC 4020 could be waived in specified circumstances; and
d)the applicant’s response was required within 28 days.
[3] Clause 485.224 of Schedule 2 to the Migration Regulations 1994.
On 31 August 2012, the applicant’s authorised representative emailed the delegate saying that he had been trying to contact the applicant but he had not been responding. Otherwise, there was no response by or on behalf of the applicant to the delegate’s letter.
On 7 February 2013, the delegate refused the visa on the grounds that the applicant did not meet PIC 4020 and there were no grounds justifying a waiver of that criterion.
The applicant then applied to the Tribunal for review of the delegate’s decision. On 24 June 2014, the applicant sent the Tribunal a letter which included the following:
I would like to make a humble request to you for kindly giving me a fair opportunity by letting me witness any investigation which has been conducted so as to form the basis of the refusal of my visa application. … I deserve to get a chance to know about the evidence which forms the reason of the refusal of my visa application.
I would be very thankful to you for providing me a chance by producing any investigated factual information which stands against the genuine standing of my IELTS. …
On 9 July 2014, the Tribunal conducted a hearing at which the applicant appeared. Following that hearing, on 14 August 2014, the Tribunal emailed MRT DIAC Referrals saying, in part:
The Department refused the subclass 485 visa application on 7 February 2013 because it received advice from International Development Program Education Pty Ltd (IDP) Audit and Investigation Unit for IELTS that an imposter had sat the IELTS test, not the applicant.
The Tribunal requests, if available, any further information in relation to this advice from the IDP, including on what basis they reached that conclusion.
In response to that email, the Tribunal received the following tables on 17 September 2014:
| IS No | Point of Suspicion | First Name | Surname | Date of Birth | Gender | Candidate No |
| 319 | AFTER THE TEST FROM IELTS VERIFICATION | AMRITPAL SINGH | 07.02.1991 | M | 018658 |
| Module | Centre | Preferred | Test Report | Type of malpractice | Suspected |
| ACADEMIC | BHOPAL | NA | 11IN018658TA120A | Impersonation | Confirmed |
| File reference | Remarks |
| IN120/300711/ | Test results cancelled |
| Passport No. | Test date |
| H 1532203 | 30-Jul-11 |
The Tribunal conducted a second hearing on 7 October 2014 that the applicant attended. At that hearing, the Tribunal advised the applicant that it would write directly to IDP to ask why it had concluded an imposter sat the applicant’s test.
The Tribunal emailed the IELTS Investigations Manager, British Council Scotland, on 13 October 2014 saying:
…
I currently have before me a case in which information the Department of Immigration and Border Protection received from IDP advised that the applicant’s IELTS test results were cancelled due to impersonation. I have checked the test report form on and the results for each component are 0.
...
Could you please provide us with the following information:
On what basis did you reach a conclusion that an imposter sat an IELTS test (11INO18658TA120A) [sic] in Bhopal, India on 30 July 2011, not the applicant?
If possible, could you please respond by 27 October 2014? Thank you for your assistance. (Emphasis in original)
The IELTS Investigations Manager, British Council Scotland, responded to the Tribunal’s email by email dated 15 December 2014, saying:
… As this test was from 2011 we no longer hold the test materials for this candidate and therefore cannot offer you a conclusive response to your question.
On 2 January 2015, the Tribunal affirmed the delegate’s decision.
The Tribunal’s reasons
In its reasons for decision, the Tribunal set out the history stated above and then said at paragraph 22:
The Tribunal has considered the applicant’s response to this information, as well as his other relevant submissions on this case, including his insistence that he sat the test in question. However, his assertions do not overcome the doubts raised by IDP and in the Tribunal’s view the more likely explanation is that someone else sat the test on 30 July 2011.
The Tribunal went on to conclude that the applicant did not meet PIC4020, and that PIC4020 should not be waived in the circumstances of the case.
Ground 1
The first ground of review in the application filed on 19 January 2015 and amended on 10 February 2017 is:
The Tribunal breached s.362A of the Migration Act 1958 (Cth) (the Act) by not giving the Applicant access to the email from IELTS to the Tribunal dated 15 December 2014 (CB 81).
Section 362A of the Migration Act 1958 (“the Act”) provided that:
Applicant entitled to have access to written material before Tribunal
(1)Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.
(2)This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.
(3)This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).
Sections 375A and s.375 of the Act apply where the Minister has given certain kinds of certificate. There was no relevant certificate in this case.
Subsection 368(1) of the Act requires the Tribunal to give the applicant a written statement of its reasons. Subsection 362A(3) of the Act means that the entitlement to access ceases when the written statement of reasons is provided.
The applicant submitted, without dispute, that s.362A differs from s.359A of the Act in that:
a)s.362A requires access to be given to written material whereas s.359A requires particulars of information to be given; and
b)s.359A is confined to particulars of adverse information whereas s.362A applies to material whether it is helpful or harmful.
The Minister conceded that s.362A of the Act did not impose a formal application requirement, such as the use of a particular form that was available on the Tribunal’s website.[4] Indeed, the Minister accepted that the applicant’s letter dated 24 June 2014 to the Tribunal constituted a request for access to specified material.
[4] Singh v Minister for Immigration [2015] FCCA 533 at [56] and Singh v Minster for Immigration [2016] FCCA 1255 at [65].
However, where the parties differed was that the Minister submitted the request only applied to specified material held by the Tribunal as at the date of the request whereas the applicant submitted the request also applied to any specified material that the Tribunal might obtain in the future.
The Minister said that the request of 24 June 2014, by its terms, applied only to documents that the Tribunal then held on its file. The 24 June 2014 request said:
I would like to make a humble request to you for kindly giving me a fair opportunity by letting me witness any investigation which has been conducted so as to form the basis of the refusal of my visa application. … I deserve to get a chance to know about the evidence which forms the reason of the refusal of my visa application.
I would be very thankful to you for providing me a chance by producing any investigated factual information which stands against the genuine standing of my IELTS. … (emphasis added)
Contrary to the Minister’s submission, the request dated 24 June 2014 was not in terms confined to documents that the Tribunal had as at that date. The applicant was asking for access to any records of the investigation by IDP into the supposed imposter who had sat his IELTS test. The applicant did not assume that the Tribunal already had those documents. Arguably, the applicant was asking the Tribunal to get relevant documents from IDP and show them to him.
In the alternative, the Minister submitted that the email dated 15 December 2014 from the IELTS Investigations Manager, British Council Scotland, which said:
… As this test was from 2011 we no longer hold the test material for this candidate and therefore cannot offer you a conclusive response to your question …
did not fall within the applicant’s request dated 24 June 2014 because it was not a record of “any investigation which has been conducted” or a record of “investigated factual information”. That submission is correct.
However, the applicant also submitted that he asked for access to specified material during the hearing on 7 October 2014. The transcript of the hearing on 7 October 2014 shows that the following exchange occurred during the hearing:
MR SINGH:It’s just - I mean - it’s the reason I’m just trying to - just thinking about that. That’s only stuff like - is it any proper evidence I mean to sort of like - IDP can provide like exactly the main reason and they can like prove or something they can show me like it wasn’t me because I’m the one - I’m thinking, like I was the one who gave the test and all of a sudden it’s coming - there’s like - they said like it’s a person who gave the test wasn’t me. That’s what I’m trying to think about if that's what is main reason or that’s why I can request to you - like, is there - they can provide me with any proper evidence so that they can say like, “This is our proof. This wasn’t you.” Or whatever - so they can show me on the video. They’ve got a photos or something because I can’t say like it wasn’t me and they’re saying I can’t accept it straightaway because it was only me who gave the test. So that’s what I’m a bit worried about. And that’s all I can say. (emphasis added)
MEMBER:I mean what I can do is see if we can write directly to IDP and see if they can provide us with what they claim- - -
MR SINGH:Because, you know, miss, like it’s - I’ve got it before to do also - it’s got (indistinct) my whole life which I have never done - like that stuff - so all of a siddent it’s going to come up to me - you know - like I spend nearly seven years in here and then all of a sudden like they’re saying it wasn’t you. My whole life is going to go - - -
MEMBER:Well, look this is what I will do. We’ll write to IDP.
MR SINGH:Uh-huh.
MEMBER:And see if they can provide some sort of basis that they reached that conclusion. I guess either they will - if they do and that information is potentially adverse to your case I will then send - you don't have to come in for another hearing. I’ll send that information to you in a letter and explain to you why it’s relevant and you’ll have a chance to comment on it before I make a decision on your case.
MR SINGH:I guess I will get a chance here.
MEMBER:If I get something back from - any adverse information I receive from the third party we are required by law - procedural fairness - to show that information and for you to comment on that information before we make a decision. If they don’t reply or what I think they send back is not satisfactory - not reaching the probative evidence that I mentioned before.
MR SINGH:Mm’hm.
MEMBER:Then I will proceed to make a decision. But if it’s adverse information I get from them - potentially adverse - then I will send it to you for comment. Okay? But in the meantime send in those receipts from the English Language Training.
The oral request at the hearing on 7 October 2014 was for “any proper evidence”. The email dated 15 December 2014 from the IELTS Investigations Manager, British Council Scotland, which said:
… As this test was from 2011 we no longer hold the test material for this candidate and therefore cannot offer you a conclusive response to your question …
did not amount to “any proper evidence”. Consequently, the email dated 15 December 2014 did not fall within the applicant’s oral request made at the hearing on 7 October 2014.
The applicant then argued that he was not required to make any request at all. Rather, the applicant submitted, s.362A of the Act automatically required the Tribunal to give him any material, or a copy of any material, given or produced to the Tribunal for the purposes of the review.
The Minister disputed that, saying that s.362A of the Act only said that the applicant was entitled to access to material. The Minister noted that s.362A of the Act differed materially from s.359A of the Act, which required the Tribunal to give particulars of certain information. The Minister argued that s.362A of the Act could easily have said that the Tribunal was required to give material to the applicant if that was what the Parliament had intended.
There is no authority on this issue that has been brought to the court’s attention. It seems to me that the Minister’s submissions are correct on this issue. That is, an applicant is entitled to access, but he has to seek it.
Section 362A of the Act is similar to the rights litigants have to access their court files. Courts are certainly under no obligation to give litigants a copy of every document filed in their proceedings. But when litigants go to a court’s registry and ask to inspect their own file, they are permitted to do so, subject to certain exclusions. It seems to me that s.362A of the Act was intended to fulfil the same function.
However, in the present case, the applicant did not ask to inspect the Tribunal file, or to inspect every document given or produced to the Tribunal for the purposes of the review. Rather, the applicant asked for access to a particular type of document, which did not include the email dated 15 December 2014. Therefore, the Tribunal was not required to give the applicant a copy of the email dated 15 December 2014.
For completeness, I should add that the Tribunal would have been incorrect if it said during the course of the second hearing that the Tribunal would only give the applicant access to adverse information. Because of the applicant’s requests, the Tribunal had to give him access to any material that fell within the terms of his requests, whether it was helpful or harmful. As it happened, the email of 15 December 2014 did not fall within the terms of the applicant’s requests, so the Tribunal did not need to give him access to it.
This ground is not made out.
Ground 2
The second ground of review in the application filed on 19 January 2015 and amended on 10 February 2017 is:
The Tribunal breached s.362A of the Act by not giving the Applicant access to an email from DIBP to the Tribunal dated 17 September 2014, and its attachment (CB 67-72).
The Minister submitted that pages 3 to 4 of the transcript of the hearing on 7 October 2017[5] indicated that the Tribunal showed to the applicant during the hearing the material received by the Tribunal on 17 September 2014 from the department.
[5] The transcript is exhibit B to the affidavit affirmed by Erskine Rodan on 30 January 2017.
That submission is correct. That is, the Tribunal did give the applicant access to the email dated 17 September 2014 and its attachment, being the tables set out above. This ground is without substance.
Ground 3
The third ground of review in the application filed on 19 January 2015 and amended on 10 February 2017 is:
The Tribunal had obligations under s.357A of the Act to act in a fair and just way, and under s.360 of the Act to provide Mr Singh with a real chance to present his case. By depriving Mr Singh from access to the material identified in grounds 1 and 2, which was in breach of s.362A of the Act, the Tribunal decided Public Interest Criterion 4020 without the fair hearing to which Mr Singh was entitled under s360 of the Act.
There was no breach of s.362A of the Act constituted by the Tribunal not giving the applicant access to the email dated 15 December 2014 for the reasons discussed above. There was no breach of s.362A of the Act constituted by the Tribunal not giving the applicant access to the email dated 17 September 2014 because the Tribunal did give the applicant access to that email.
Nevertheless, there is a residual question as to whether the Tribunal failed to afford the applicant a fair hearing by not giving him access to the email dated 15 December 2014. That was the email from the IELTS Investigations Manager, British Council Scotland, that said:
As this test was from 2011 we no longer hold the test material for this candidate and therefore cannot offer you a conclusive response to your question …
The applicant argued that he:
… was denied the opportunity to make submissions about the weakness of the finding that his test was affected by malpractice … .
The Minister said that the applicant was alerted to the possibility that the IDP would not add to the existing evidence, leaving the case as it stood on 7 October 2014. That is correct, pages 10 and 11 of the transcript of the hearing on that date shows that the following exchanges occurred:
MEMBER:Well, look this is what I will do. We’ll write to IDP.
MR SINGH:Uh-huh.
MEMBER:And see if they can provide some sort of basis that they reached that conclusion. I guess either they will - if they do and that information is potentially adverse to your case … . I’ll send that information to you in a letter and explain to you why it’s relevant and you’ll have a chance to comment on it before I make a decision on your case.
MR SINGH:I guess I will get a chance here.
MEMBER:… If they don’t reply or what I think they send back is not satisfactory … .
MR SINGH:Mm’hm.
MEMBER:Then I will proceed to make a decision. …
…
MEMBER:Okay. Anything else you want to tell the tribunal?
MR SINGH:That’s all.
…
MEMBER:… on the other hand we’ve got some information from IDP that you didn’t sit the test. So it really comes down to that. Okay?
The applicant knew that the Tribunal had limited evidence that the applicant did not sit the test. The Tribunal drew to the applicant’s attention the possibility that IDP might not add in any significant way to the existing evidence. The Tribunal said that, in that case, it would proceed to make a decision. It was obvious that the Tribunal meant that, if the response from IDP did not add significantly to the existing evidence, the Tribunal would make a decision without inviting the applicant to another hearing and without inviting the applicant to comment in writing. The Tribunal, at the hearing on 7 October 2014, invited the applicant to say anything else he wished. In my view, that was sufficient to meet the requirements of natural justice.
It is artificial, and dependent on hindsight, to say that, if the applicant had known for sure that IDP would not provide any more compelling evidence than was already available, the applicant might have made further or other submissions about the weakness of the evidence. He had the opportunity to make further submissions, knowing that there might be no additional evidence. In this case, there was no practical injustice.
This ground is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 13 April 2017
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