SINGH v Minister for Immigration

[2016] FCCA 2671

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2671

Catchwords:
MIGRATION – Judicial review – whether or not the Tribunal had the power to invite the applicant to attend the hearing.

Legislation:

Migration Act 1958 (Cth), ss.359, 359A, 359B, 359C(1)(b), 360, 360(2)(c), 360(3), 363A

Cases cited:

Ibrahim v Minister for Immigration and Citizenship (2009) FCA 1328
Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) HCA 6

Applicant: KARAMJIT SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2070 of 2015

Judgment of: Judge Harland

Hearing date: 22 September 2016

Date of Last Submission: 22 September 2016

Delivered at: Melbourne

Delivered on: 22 September 2016

REPRESENTATION

Counsel for the Applicant: In person

Counsel for the Respondents: Ms Gangemi

Solicitors for the Respondents: Australian Government Solicitors

ORDERS

1. The application filed 10 September 2015 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 2070 of 2015

KARAMJIT SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review with respect to the Tribunal’s affirmation of the decision of the delegate to dismiss of the application of the applicant for a skilled (provisional) (class VC) visa.  The delegate handed down its decision on 18 January 2011.  The delegate found that the applicant did not satisfy clause 485.224 of schedule 2 of the regulations, specifically with respect to public interest criterion 4020.

2. The visa application listed the applicant’s nominated occupation as cook and stated that he had undertaken a Trades Recognition Australia (“TRA”) skills assessment on 18 February 2009 and there was a reference number for that and that appears at court book 17.

3. On the application, the applicant’s address was listed and an email address appeared as well, being [email protected] and that appears at court book (“CB”) 12 and 13.  On 17 February 2012, the Department sent an email to the applicant at the email address in his visa application and then sent a further email to an alternate address.  The emails invited the applicant to comment on the following matters.

4. Those matters included that his visa application had been prepared with the assistance of S&S Migration; that, although S&S Migration did not appear as his nominated agent, a file with his personal details and reference numbers had been found in the offices of S&S Migration by the department.  Further, it commented that TRA did not have a record of any skills assessment as referred to in the application and had no record of ever having conducted any skills assessment for the applicant.  The emails also invited the applicant to comment on the allegation that he had provided false and misleading information to the department.

5. The applicant was given 28 days to respond to emails but no response was received.  That is part of the complaints that the applicant raises.  He says that he did not receive those emails and says that, for that reason, he could not respond.  The delegate then refused the application for the visa on the basis of the applicant having provided false and misleading statements in relation to his TRA skills assessment, in breach of the public interest criterion 4020(1)(a), and because he could not satisfy that criterion, he then could not meet the mandatory requirements of his visa and the visa was refused.

6. The applicant then applied for a review to the Tribunal. He had a new migration agent represent him and he was invited, pursuant to section 359A of the Migration Act 1958 (Cth), to comment or respond to information and that information was that the TRA had no record of the skills assessment referred to in the visa application and, the records being found in the offices of S&S Migration, the department had found that S&S Migration had lodged false applications with the department.

7. The applicant was also invited, pursuant to section 359 of the Migration Act 1958 (Cth) to provide information, that is, evidence of a relevant skills assessment. The relevant pages of the CB with respect to that are pages 72 to 74. The applicant’s migration agent responded to the invitation and said that the applicant had not instructed S&S Migration to rely on a TRA skills assessment or to lodge any application referring to a TRA skills assessment.

8. The applicant’s representative also argued that the visa application was invalid as it did not contain a residential address as required by section 207(4) of the regulations.  The applicant appeared before the Tribunal on two occasions:  on 7 January 2015 and on 21 August 2015.  The applicant had the assistance of an interpreter and his representative was also present.  The applicant’s representative also made further submissions after the first hearing.

9. At the hearing, the Tribunal asked the applicant about the process that was involved for his applying for his student visa in 2007.  The applicant acknowledged to the Tribunal the various documents that he needed to supply in order to obtain that visa.  The applicant’s agent argued before the Tribunal that the visa was invalid because the applicant’s purported agent at the time engaged in fraudulent conduct and that the application did not contain the applicant’s current residential address as required by the regulations.

10. The applicant told the Tribunal that, when he saw S&S Migration, he only had to supply his passport and the sum of $2,500.00.  The Tribunal asked if he thought that that was all it would take to get a work permit in light of the documentation he had had to provide for a student visa.  The applicant responded that he thought it was odd but that he believed his migration agent.  He told the Tribunal that he did not follow up with respect to the progress of his application until 2012 when he found that S&S Migration had closed its office.

11. The applicant told the Tribunal that he did not contact the Department of Immigration until he received his visa application refusal letter.  He confirmed that he had not had any contact with the department about his visa application for almost 18 months.  With respect to the issue of the invalidity of the application, the Tribunal noted that, if an applicant chooses to have an agent fill out a form on his behalf, that does not invalidate the application, even where the applicant claims not to be familiar with the precise content of that application.  The applicant is still legally responsible for the contents of the application, even if they leave it the agent to complete.  The Tribunal referred to various authorities in support of those propositions.

12. The Tribunal found that, having previously applied for a student visa providing various documents, that the applicant was indifferent to the information that S&S Migration put in his visa application, which was lodged with his knowledge and consent.  The Tribunal found that there was no evidence that the applicant had made any effort to inform himself about the contents of the application and, in those circumstances, was satisfied that the applicant was legally responsible for the contents of his application.

13. The Tribunal went on to address the issue of fraud and noted that the applicant had showed what it referred to as a remarkable disinterest in the progress of his visa application and that, possibly, he had had some complicity in the fraud.  He referred to the applicant’s evidence that he had only contacted the agent to see whether or not he could travel to his brother’s wedding in India in 2011 and had only made one attempt to contact him in 2012, by which time the agent had closed his office and fled.

14. The only explanation that the applicant gave for his lack of interest was that he believed what his agent told him because he was Australian.  The Tribunal found this highly unlikely, particularly once he found out that the office had been closed and that, even after that, he did not make any inquiry with the department.  The Tribunal was not satisfied that the applicant had made out a complaint of fraud.  It is well established by authorities that a complaint of fraud needs to be pleaded with particularity and there is a high bar to establishing that given the serious nature of such an allegation.

15. The Tribunal then went on to address the applicant’s complaint about the address and, again, after referring to legislation and case law, found that it was sufficient that the address was represented as being the applicant’s residential address whether or not it in fact was the applicant’s address.  And the Tribunal further noted that the residential Australian address was given as the postal address.  The applicant’s agent then referred to the three year exclusion period from the time of the delegate’s decision, which was entered on 6 June 2015.  The Tribunal determined not to proceed on the basis of the exclusion period but on an alternative basis. 

16. The Tribunal decided that it was appropriate to determine the review application on the basis of clause 485.221, which requires the applicant’s skills in the nominated occupation to have been assessed by the relevant assessing authority as suitable for that occupation.  The applicant conceded that he did not have such an assessment, and he confirmed that this remains the case today.  The applicant pleads two grounds in his application.  The first ground is that the Tribunal failed to take the facts of his application into account without giving him sufficient opportunities to justify his claim.

17. That ground cannot be sustained in light of the chronology of which I have referred to above.  It is quite clear that there were two hearings before the Tribunal several months apart and that the applicant had the benefit of a migration agent’s assistance who provided more than one set of written submissions and also appeared and made arguments before the Tribunal.  It is also clear from the Tribunal record – and without a transcript the Tribunal record is assumed to be correct – that the Tribunal squarely dealt with each of the arguments raised by his agent at the time. 

18. It cannot be said that the Tribunal did not give the applicant sufficient time to argue those points.  The second ground is that the Tribunal rushed its decision without following the principles of natural justice.  The first part of this hearing took place on 2 August 2016.  On that occasion the solicitor for the Minister sought to raise a new ground, and in those circumstances the hearing was adjourned to today.  The solicitor for the Minister filed written submissions addressing the new ground which it identified at the hearing on 2 August 2016 in submissions that were filed on 8 August 2016.

19. That has given the applicant ample opportunity to consider those submissions.  And the applicant confirmed that he had received them.  The new ground is relevant to the issue about procedural fairness.  The respondent refers to several provisions of the Migration Act 1958 (Cth) with respect to Tribunal’s invitation to the applicant to appear at the Tribunal. The first relevant section is section 359 of the Migration Act 1958 (Cth), which enables the Tribunal to seek information in the course of conducting its review. And if the Tribunal receives information in accordance with that request, it is obliged to have regard to that information.

20. There is no doubt that in this case the Tribunal did make a request for further information, and there is also no doubt that the Tribunal did not receive any information in answer to that request within the timeframe that it had provided. And that invitation appears in CB pages 73 to 74. Section 359B sets out the requirement for a written invitation, and that written invitation was made at the same time as the request for information as part of the one document. Section 359C deals with the situation of where an application fails to give information or comments or response in response to an invitation. Subsection (1) provides that:

    In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

21. If a person is invited in writing under section 359 to give information; and (b) does not give the information before the time for giving it has passed, then the Tribunal may make the decision on review without taking any further action to obtain the information.

22. It is then necessary to go to section 360, which requires the Tribunal to invite the applicant to appear to give evidence and present arguments with respect to the issues which are relevant to the decision under review. However, there is an exception and one of the exceptions applies to the applicant in this case, which is subsection (2)(c), which is because section 359C applies to the applicant in that he failed to provide the information requested within the timeframe, section 360(3) applies, which states that the applicant is not entitled to appear before the Tribunal.

23. That is significant because what is clear is that, if anything, the applicant was afforded procedural fairness that he was not entitled to because it is clear from that section of the Act that the applicant was not entitled to appear before the Tribunal in those circumstances. Section 363A deals with the Tribunal’s power and states that the Tribunal does not have power to permit a person to do something he or she is not entitled to do. And, of course, that is what has happened here. And so the effect of that provision is that the Tribunal did not have the power to permit the applicant to appear before the Tribunal.

24. I am certainly satisfied that, even without that argument having been addressed, there could be no complaint about a lack of procedural fairness to the applicant given the fact that he appeared on two occasions before the Tribunal with the assistance of a migration agent.  He was clearly on notice of the issues that needed to be addressed and the information to be provided, and failed to do that.  It is clear that the applicant simply could not comply with the conditions of his visa.  It is also clear that the Tribunal decided to determine the application on the basis of non-compliance with the visa application and not on the alternative basis which the delegate had applied, which was a finding that because the applicant had submitted a false or misleading document, PIC 4020 applied. 

25. By the time of the second Tribunal’s hearing, as the applicant’s representative had pointed out in written submissions, the three-year exclusionary period had already concluded, and whilst the Tribunal expressed some doubt about the correct interpretation of the provisions (that is whether the exclusionary period would run from the decision of the delegate or the decision on the Tribunal) it found that it would be unfair to the applicant to apply a further three-year exclusionary period, which would mean in effect a second period running.  It is not necessary for me to determine the issue that the Tribunal expressed doubt about, because there was no disadvantage to the applicant in the Tribunal taking that approach. 

26. Given that it is clear from the sections of the Act that I have referred to that the Tribunal acted without power in inviting the applicant to appear at the hearing, it is necessary to consider whether or not that action was a jurisdictional error.  First respondent argues that even if the court is satisfied that there was an error – and I am – that was not a material error going to jurisdiction and in that regard relies on High Court decision of Yusuf, where the court stated that it is not an error that affects the exercise of – it is not a jurisdictional error if the error did not affect the exercise of power. 

27. The first respondent also relied on the decision of Ibrahim v Minister for Immigration and Citizenship (2009) FCA 1328 (“Ibrahim”), where the court held that a legal error does not go to jurisdiction unless it is a material error.  And it is not a material error if no other decision could have been made on the basis of the material that was available before the Tribunal maker.  In my view, the point made by the court in Ibrahim is exactly the point in this case.  On any view, even with the concessions of the applicant, the applicant could have never complied with the visa, because he cannot produce the TRA skills assessment as required.  Therefore I am satisfied that there is no jurisdictional error, applying the principle referred to in Ibrahim. 

28. Furthermore, it is also a case where, as discussed – as referred to by the High Court in Minister for Immigration and Multicultural and Indigenous affairs; Ex parte Lam (2003) HCA 6, there is no practical injustice to the applicant. In fact, the applicant was granted advantages that he was not entitled to, and it is clear that the Tribunal fully considered the complaints that the applicant made before it in circumstances where it was not obliged to and in fact, as said before, did not have the power to do so. So in those circumstances there are several reasons why the applicant’s complaint that he was denied procedural fairness simply cannot be made out.

29. The application must be dismissed. The applicant should pay the first respondent’s costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 14 October 2016