SINGH v Minister for Immigration

[2016] FCCA 2236

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2236

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) subclass 485 (Skilled – Graduate) visa – false and misleading information – applicant not having a skills assessment.

Legislation:
Migration Act 1958; ss.98, 360(2)(c) and (3), 363A
Migration Regulations 1994; Schedule 4, public interest criterion 4020

Cases cited:
SZFDEv Minister for Immigration and Citizenship (2007) 232 CLR 189; (2007) 95 ALD 510; (2007) 237 ALR 64; (2007) 81 ALJR 1401; [2007] HCA 35

Applicant: JATINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 368 of 2015

Judgment of: Judge Riley

Date of last submission: 2 August 2016

Delivered at: Melbourne

Delivered on: 2 August 2016

REPRESENTATION

Advocate for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Tom Smyth

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The title of the proceeding be amended so that the name of the second respondent is ‘Administrative Appeals Tribunal’.

2. The application filed on 27 February 2016 be dismissed.

3. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 368 of 2015

JATINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from the transcript)

1. This is an application for review of a decision of the Migration Review Tribunal (“the Tribunal).  The applicant applied for a Skilled (Provisional) (Class VC) subclass 485 (Skilled - Graduate) visa.  That application was refused by a delegate of the Minister for Immigration and Border Protection.  The applicant then applied for review by the Migration Review Tribunal.  The Tribunal affirmed the delegate’s decision.

2. One of the criteria for the visa was that the applicant have a satisfactory Trades Recognition Australia (“TRA”) skills assessment.  The applicant’s application indicated that he did have such an assessment and gave a particular receipt number for the assessment.  An officer of the Department of Immigration and Border Protection (“the Department”) checked that receipt number and found that it did not relate to a TRA skills assessment for the applicant.

3. The Department wrote to the applicant on 17 February 2012 at an email address that he provided in his application.  The email advised that the application appeared to have been lodged by a business known as S & S Migration who were known to have lodged applications containing false and misleading information.  The email noted that although the applicant had said that he had no agent assisting with his application the Department had found materials relating to the applicant in the office of S & S Migration.

4. The email also said that the reference number provided by the applicant in his visa application did not correspond to any record held by TRA, and, in fact, TRA had no record of any skills assessment of the applicant.  The email said it was, therefore, alleged that the applicant had provided false or misleading information to the Department.  The email referred to public interest criterion 4020 which applied to the present visa application.  The email said that public interest criterion 4020 required that there be no evidence that the applicant had provided to the Department information that was false or misleading in a material particular in relation to his application.  The applicant was invited in the email to comment on the information contained in the email and was also invited to address any compelling or compassionate circumstances that might warrant a waiver of public interest criterion 4020. 

5. The email appears to have been sent to the address that the applicant had nominated in his application.  There was no response by the D to it. 

6. The Department then sent the applicant an email on 27 March 2012 in the same terms to another email address that they had on file in relation to the applicant.  There was no response received by the Department to that email either.

7. The delegate proceeded to refuse the application for the visa sought by the applicant.  The applicant then sought review by the Tribunal. 

8. On 23 April 2014, the Tribunal sent the applicant a letter inviting him to comment on certain information.  That letter was addressed to the address that the applicant gave in his application to the Tribunal. 

9. The letter sought comment on information that TRA had no record of providing the skills assessment the applicant had referred to in his visa application.  The letter also asked for comment on information that documents relating to the applicant had been found at the office of S & S Migration and that firm had been found to have lodged applications to the Department that contained false or misleading information. 

10. The letter from the Tribunal said that that the information was relevant to the review because the criteria for the visa that the applicant had sought included the criteria that:

    … there be no evidence that you have given or caused to be given to persons including the Minister a bogus document or information that is false or misleading in a material particular in relation to the visa application.

11. The applicant was also asked in the letter to provide information that consisted of evidence that he had applied for a skills assessment at the date of his visa application and that a relevant assessing authority had assessed his skills as suitable for his nominated occupation.  The letter set out in bold type that, if the applicant did not provide comments, or a response, or information within the time allowed, he would lose any entitlement he might have otherwise had to appear before the Tribunal and give evidence and present arguments.  The applicant did not respond to that letter. 

12. The Tribunal proceeded to make its decision without giving the applicant any further opportunity to be heard.  The Tribunal considered that the applicant had given the Department information that was false or misleading in a material particular.  The Tribunal considered that, therefore, the applicant did not meet the requirements of public interest criterion 4020. 

13. The Tribunal noted that public interest criterion 4020 could be waived in compelling or compassionate circumstances that affect the interest of an Australian citizen, an Australia permanent resident or an eligible New Zealand citizen or where there were compelling circumstances that affect the interest of Australia.  The Tribunal was not satisfied on the evidence before it that there were any such circumstances.  The Tribunal concluded that public interest criterion 4020 should not be waived. 

14. The Tribunal considered whether there was a skills assessment for the applicant’s nominated skilled occupation before it.  The Tribunal found that there was no such skills assessment.  The Tribunal found that, as the applicant did not satisfy the requirement for a skills assessment or public interest criterion 4020, it followed that the applicant did not meet the requirements for the grant of the visa.  The Tribunal affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) subclass 485 (Skilled - Graduate) visa.

15. The applicant was not represented before this court.  The first ground in the application filed on 27 February 2015 is:

    I submit that the application has been decided unfairly and I was dodged by a 3rd party with my visa application. 

16. The question of unfairness is, perhaps, more complicated than the applicant understood.  There are two ways that a decision can be unfair so as to enable the matter to be remitted to the Tribunal.  One is if a decision is unreasonable in a legal sense and the other is if the decision-making process was procedurally unfair.

17. It cannot be said that the decision in this case was unfair or unreasonable in a legal sense.  The applicant did not have a skills assessment, as he confirmed orally to the court this morning.  Consequently, there was no other decision that the Tribunal could have made.

18. In terms of procedural fairness, it is true that the applicant was not given a hearing before the Tribunal.  However his right to such a hearing was abrogated by the Migration Act1958 (“the Act”). As the applicant had not provided the information, response or comments sought by the Tribunal in its letter of 23 April 2014, the Tribunal could not give him a hearing. That was provided by s.360(2)(c) and (3) and s.363A of the Act.

19. The claim that the application was “dodged” by a third party seems to relate to the matters that the applicant said to the court this morning.  He said that he went to see an immigration agent for an extension of his student visa.  He said the agent called him in to sign the visa application form.  He said that he signed a form that was blank and the agent said he would fill in the details later.  He told the court that he did want a skilled provisional visa.  He said that the agent made a mistake in that he put the wrong TRA reference number in to the application. However, the applicant then clarified that he did not have a TRA assessment either at the time of the application or since.  The applicant said that the agent’s mistake was to lodge an application for a skilled provisional visa when the applicant did not have the TRA skills assessment. 

20. The Minister argued that this was not a fraud on the Tribunal but was, at most, a fraud on the applicant.  The High Court noted in SZFDEv Minister for Immigration and Citizenship (2007) 232 CLR 189; (2007) 95 ALD 510; (2007) 237 ALR 64; (2007) 81 ALJR 1401; [2007] HCA 35 at paragraph 53 that:

    … there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. (citation omitted)

21. The Minister also noted that the applicant said he signed a blank form, and noted that s.98 of the Act provided that:

    A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf. 

22. Oddly, the application form in this case was not signed. It was lodged electronically. It is unclear what the applicant might have been referring to when he said that he signed the blank form. However, one way or another, it is clear that he wanted the visa application to be made on his behalf. Section 98 of the Act applies to mean that he is taken to have made the application himself.

23. This does not seem to me to be a case of fraud on the Tribunal.  The applicant’s evidence that he signed a blank form suggests that he was not taking proper care of his own interests.  However, there is not an application form in the court book.  It seems, at most, that this was a case of bad or negligent advice on the part of the agent.  It does not rise to the level of fraud on the Tribunal so as to constitute jurisdictional error. 

24. The second ground in the application is that:

    The decision made by the Tribunal member and Immigration Department Officials is made contrary to Natural Justice. 

25. This court has no power to review the decision of a delegate of the Minister. To the extent that the applicant was denied natural justice because he was not given a hearing before the Tribunal, the Act required that the Tribunal not give the applicant a hearing because he did not respond to the Tribunal’s letter. The matters on which the decision turned were notified to the applicant in the letter of 23 April 2014. To that extent, the applicant was given natural justice. The applicant did not respond to the letter dated 23 April 2014 but he was given the opportunity to do so.

26. The third ground in the application is:

    The Tribunal and Department have not applied procedural fairness to the applicant’s circumstances. 

27. This is a repeat of the previous ground.  For the same reasons it cannot be accepted.

28. None of the applicant’s grounds has amounted to a jurisdictional error.  I have been unable to discern any jurisdictional error in the Tribunal’s decision or decision-making process.  Consequently, the application will have to be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 29 August 2016