SINGH v Minister for Immigration

[2016] FCCA 2944

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2944

Catchwords:
MIGRATION – Application for skilled visa – whether Tribunal incorrectly applied Public Interest criterion 4020 by finding the Applicant’s IELTS results included in his application was a bogus document and by declining to exercise its discretion to waive Public Interest criterion 4020(1) – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth) ss.5(1), 65

Migration Regulations 1994 (Cth) cl.885.224

Cases cited:

SZSHV v Minister for Immigration and Border Protection [2014] FCA 253
Minister for Immigration and Border Protection v A125 of 2003 [2007] FCAFC 162

Applicant: BIKRAMJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1016 of 2015

Judgment of: Judge Jones

Hearing date: 11 October 2016

Date of Last Submission: 11 October 2016

Delivered at: Melbourne

Delivered on: 11 October 2016

REPRESENTATION

Counsel for the Applicant: Self-represented

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application for judicial review filed on 7 May 2015 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1016 of 2015

BIKRAMJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Settled from Transcript)

Introduction and background

1. This is an application for judicial review of a decision of the then Migration Review Tribunal (“the Tribunal”) made on 17 April 2015 under the Migration Act 1958 (“the Act”) in which the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant the Applicant a Skilled (Independent) (Class VB) (subclass 885) visa (“the visa”).

2. The Applicant is a citizen of India. On 11 October 2011, he applied for the visa, and in that application he said that he had undertaken an English language test within the preceding 24 months and that his language ability was proficient (CB 13). The Applicant indicated that the date of the English test he had undertaken was 25 August 2011 with a particular test reference number ending in “…120G”.  I will refer if necessary to this as the August 2011 test results.

3. On April 2014, the Department of Immigration and Border Protection (“the Department”) emailed the Applicant’s legal representative, inviting the Applicant to comment on certain information.

   
   

   The information was this: that the August 2011 results were checked against the International English Language Testing System (“IELTS”) and a test report form verification service online site and the photo on the TRF verification site was ‘greatly different to that shown on the August 2011 results.’ (CB 105).

4. On 30 April 2014, the Applicant’s representative emailed the Department with the Applicant’s response.  He claimed that his father had passed away in 2011, that he completed two IELTS tests in India and that he had achieved the requisite score in the second test

   
   

   (CB 110). On 6 May 2014, a delegate of the Minister refused to grant the Applicant the visa on the basis that he did not satisfy PIC4020(1) (CB 125). The delegate found, furthermore, that there were not compelling circumstances to waive the requirements of PIC4020(1) and therefore the Applicant did not meet the requirements of cl.885.224 of the Migration Regulations 1994 (“the Regulations”).

5. The Applicant applied to the Tribunal for merits review of the delegate’s decision on 19 May 2014 (CB 143). The Applicant was invited by the Tribunal by correspondence dated 24 March 2015 to appear before it on 17 April 2015 to give evidence and provide submissions. The Tribunal also requested the Applicant provide submissions and additional documents by 10 April 2015 (CB 167).

   
    

   The Applicant’s representative provided the Tribunal with submissions and the Applicant’s statement on 8 April 2015. This was provided by facsimile dated 8 April 2015. The Applicant claimed that he was in India and he took the exam the subject of the August 2011 test results. The Applicant attended the hearing on 17 April 2015, at which time the Tribunal made an oral decision and affirmed the delegate’s decision. The Tribunal gave its written reasons for its decision on 30 April 2015.

Tribunal Decision

1. The Tribunal noted in its decision record (CB 200 at [6]) noted that it advised the Applicant that it would be considering whether the August 2011 IELTS test results submitted to the Department in relation to his visa application is a bogus document. Next it noted that the Tribunal had compared the photo of the person who sat the IELTS test as recorded on the TRF verification service with the photo attached to the IELTS test result the Applicant submitted to the Department, as well as two photos the Applicant had submitted to the Department in relation to the visa application. The Tribunal said to the Applicant that its preliminary view was that someone other than the Applicant sat the IELTS test. The Tribunal member also said to the Applicant that the IELTS test may be a bogus document because it was obtained because of a false or misleading statement; namely, the person who took the test falsely declared that they were the Applicant.

2. The Tribunal said that if it found that the IELTS test result is a bogus document the Applicant would not meet PIC4020(1). The Tribunal noted then (CB 201 at [7]) that it handed copies of the four photographs to allow the Applicant to examine the photos and the Applicant confirmed that he could see it was not him in the photograph on the IELTS TRF verification service test result. He did maintain, however, that he did the test. The Tribunal noted that he did not know what had happened with his photograph, and he was shocked when he found out it did not match. He said he has no idea how this happened but it might be an error because the IELTS has a large database.

3. The Tribunal did not accept the Applicant’s explanation. The Tribunal said (CB 202 at [18]) it had considered the Applicant’s submissions, including his insistence that he sat the test which led to the August 2011 results. So it took into account the Applicant’s statement that he did sit that test, which is what the Applicant now says to the Court.

   
   

   The Tribunal noted that the Applicant had conceded that the photo of the candidate on the verification service recorded as having sat the test was not him but suggested this was an error because the database is large. The Tribunal found:

   However, in the absence of any sort of credible explanation from the Applicant as to how this could possibly have occurred, the Tribunal considers the much more plausible explanation is that an imposter engaged by the Applicant sat the test, not the Applicant.

4. The Tribunal therefore found that the August 2011 test result was a bogus document as defined in s.5(1) of the Act because the Tribunal reasonably suspects it was obtained because of a false or misleading statement, namely that the person who took the test falsely and intentionally declared they were the Applicant. The Tribunal therefore found the Applicant did not meet PIC4020(1).

5. The Tribunal went on, as it should have, to consider whether the requirements of that subsection should be waived and noted that they may be waived, where there are compelling circumstances affecting 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 that justified the granting of the visa. The Tribunal noted the Applicant had not advanced any claim that the PIC4020(1), should be waived, and the Tribunal found therefore that there was no evidence that would support such a claim in any event. Accordingly, the Tribunal decided that it should not exercise its discretion to waive the requirement. Thus its conclusion was that the delegate’s decision not to grant the visa should be affirmed.

Consideration

1. The Applicant was required to satisfy for the purpose of the grant of the visa under s.65, Pt 885 of sch.2 of the Regulations. Relevantly, cl.885.224 requires that at the time of the visa decision the Applicant satisfied PIC4020. PIC4020 is contained in sch.4 of the Regulations, and a copy of that is set out at court book 204. I should also note at court book 205, a copy of section 5 of the Act dealing with the interpretation or definition of “bogus document” is also set out.

2. The Applicant has set out in his application for judicial review his grounds (CB 210). They are as follows.

   1.Applicant had lodged an application for skilled residence class VB subclass 885 skilled independent visa on

   
   

   11 October 2011.

   2.The issue which affects the Applicant’s case is the department of immigration and Migration Review Tribunal were not satisfied that the IELTS test result was a genuine document. They were of the belief that the IELTS test document provided with the application was a false document. The reason they provided to the Applicant was the photograph on the test result and the photograph on the IELTS verification database did not match.

   3.The Applicant is quite shocked how this could be the reason, as he validly travelled to India and undertook the IELTS test himself.

   4.Applicant was overseas in India for two months, as his father was ill during that time as well, and he was undergoing his IELTS test.

   5.Applicant believes that the public interest criteria PIC condition of 4020 should not have applied to his application in the first place, as he did not provide a bogus document at any time to the immigration department or any other departments’ authorities.

   6.After receiving a refusal notification from the Immigration Department the Applicant then reviewed this decision at the Migration Review Tribunal (‘MRT’). However, the Applicant did not get a favourable response here either, and Tribunal member did not consider his statement and gave little weight to his stance and decided the matter unfairly to the Applicant.

   7.Now the Applicant wishes to have this decision reviewed further, as he believes that his case is strong, as he is genuine and truthful, and that the wrong decision should be corrected and he should be freed from this false allegation which is put against his name. The Applicant comes from a good family from India and could never even imagine doing such a disgraceful act. Applicant confirms that the IELTS score are a genuine reflection of his English levels.

   8.Applicant wishes for a fair chance and requests the judicial court to kindly review the matter and provide him with justice, as he has been denied justice.

3. As the Applicant was self-represented, I explained to him the nature of judicial review and said that it was a process that was different to the merits review before the Tribunal. I explained that my function was not to review his circumstances and decide whether I should grant him a visa, rather it was merely to ascertain whether the Tribunal had engaged in a jurisdictional error or serious legal mistake.

4. I then asked the Applicant to explain his judicial review application.  And, essentially, the Applicant maintained what he said in his grounds of application which is his submissions made to the Tribunal; that is, that he sat the exam leading to the August 2011 test results. He further submitted that he was right and the Tribunal was wrong, that there was no evidence that the IELTS August 2011 test results were a bogus document, and that he disagreed with the Tribunal’s decision.

5. It will be manifestly apparent from this submission as well as the grounds of review that the Applicant is, in effect, quibbling with the Tribunal’s judicial decision in terms of its outcome and that his grounds are that the Tribunal failed to consider his evidence or gave insufficient weight to his evidence.

6. Essentially, as the Minister pointed out in oral submissions, the question the Court must decide is whether the Tribunal’s ultimate finding (which led to its decision that the Applicant did not meet

   
   

   PIC 4020(1)), that:

   In the absence of any sort of credible explanation from the Applicant as to how this could possibly have occurred (this being the error – the photograph on the IELTS verification service being not a photograph of the candidate), the Tribunal considers the much more plausible explanation is that an impostor engaged by the Applicant sat the test, not the Applicant.

   was one that was not open to it.

7. I am satisfied that on the evidence and information before the Tribunal, which I have recited, it was open to the Tribunal to make this finding.

8. The Applicant finds the finding to be offensive and insulting. However, that is not the issue that would give rise to jurisdictional error. The Tribunal was entitled to find that the results were a bogus document within the meaning of the Act.

9. There is nothing before the Court that suggests that the Tribunal erred in its decision.  It simply was a question of the Tribunal reviewing the evidence and deciding whether or not it should accept the Applicant’s evidence, which is that he sat the relevant IELTS test in August 2011, or reach its finding, based on the different photographs, that it was a bogus document.

10. The Applicant says that the Tribunal decision was unfair.  However, it is pretty clear that the Applicant was on notice, firstly, because of the delegate’s decision, but also because the Tribunal specifically took the Applicant to its concerns that the real question before the Tribunal was whether the Applicant met the requirements under PIC4020.

    
    

    The Tribunal found that the Applicant did not. There was no error in that decision.

11. The Tribunal then turned its mind, as it was required to do, to decide whether the requirement should be waived under subsection (4) of PIC4020. In the absence of any particular evidence before the Tribunal as to compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen or permanent resident, it was open to the Tribunal to decide it should not exercise its discretion.

Conclusion

1. Accordingly, the only conclusion that this Court can reach is that the Tribunal did not engage in jurisdictional error. The Applicant’s grounds seek the Court to engage in impermissible merits review and to intrude into the Tribunal’s findings of fact, which are not amenable to judicial review: SZSHV & Minister for Immigration and Border Protection [2014] FCA 253 at 28.

2. The Applicant also requests that the Court review the weight the Tribunal gave to the evidence before it in its fact finding function.  Again, that is not something for the Court to do. It is an impermissible engagement by the Court on judicial review: Minister for Immigration and Citizenship & Applicant A125 of 2003 [2007] FCAFC 162 at 95.

3. Having said that, therefore, the Court finds there was no jurisdictional error arising from the Applicant’s grounds or from the Tribunal’s decision record itself.

4. Consequently for the reasons set out in this judgment I will make orders dismissing the application for judicial review and that the Applicant pay the First Respondent’s costs.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 16 November 2016