Singh v Minister for Immigration
[2020] FCCA 1182
•5 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION | [2020] FCCA 1182 |
| Catchwords: MIGRATION – Application for a Skilled – Regional Sponsored (Provisional) (subclass 489) Skilled Regional Sponsored (Provisional) (Class SP) regional sponsored (provisional) (subclass 489) visa – whether the delegate found information provided by the applicant as a bogus document or false or misleading information – whether the delegate misconstrued the applicant’s claims – whether the delegate found the applicant’s evidence to be accurate, consistent and trustworthy – whether the delegate’s decision was irrational or illogical – whether there is jurisdictional error – jurisdictional error made out – application is upheld. |
| Legislation: Migration Act 1958 (Cth), ss.477 Migration Regulations 1994 (Cth), cl.489.211, sch.6D |
| Cases cited: Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23 MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 Vo v Minister for Home Affairs [2019] FCAFC 108 |
| Applicant: | PARMINDEER PREET SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| File Number: | SYG 1774 of 2019 |
| Judgment of: | Judge Humphreys |
| Hearing date: | 14 May 2020 |
| Date of Last Submission: | 14 May 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 5 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lahoud |
| Solicitors for the Applicant: | Newman & Associates |
| Counsel for the Respondents: | Ms Morris |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Grant an extension of time for the filing of an application for review to this Court.
An order that the decision of the Minister be quashed.
A writ of mandamus directed to the Minister, requiring him to determine the applicant’s application according to law.
An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
The Respondent to pay the Applicant’s costs fixed in the amount of $7,463.00.
The Applicant pay the costs of $2,193.00 as a result of costs thrown away.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYG 1774 of 2019
| PARMINDEER PREET SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applied for a Skilled - Regional Sponsored (Provisional) (subclass 489) (Class SP) visa on 19 May 2018. A delegate of the Minister (“the delegate”) refused the visa application on 15 May 2019, on the basis that the applicant failed to satisfy cl 489.211 of the Migration Regulations 1994 (Cth) (“the Regulations”). The delegate was satisfied there was information that the Minister had been provided with a bogus document or information, which was false or misleading in a material particular, in relation to the visa application.
The applicant now seeks judicial review of the delegate’s decision to refuse his visa. It is to be noted that the application for review by this Court was filed out of time.
The matter was originally listed for hearing on 6 April 2020. Orders fixing that date had been in place for a considerable period of time. When the matter came on for hearing, no submissions had been filed by the applicant. Counsel for the applicant, who had only recently come into the matter, made an application for an adjournment. The hearing was adjourned until 14 May 2020 and orders were made for the filing and serving of any additional affidavit material and submissions. Costs thrown away in respect of the adjournment were reserved.
Submissions by the applicant were subsequently filed, along with an affidavit affirmed by the applicant on 16 April 2020. That affidavit contains inter alia rebuttal information as to the conclusions by the delegate.
The Delegate’s Decision
In the applicant’s application for a Skilled - Regional Sponsored (Provisional) (subclass 489) (Class SP) visa, he provided employment claims for the purpose of satisfying the Points Test under Schedule 6D of the Regulations. The applicant claimed to have five points for three in 10 years, including overseas work experience as a Network Administrator with the Punjab Institute of Technical Education (“the Institute”). In an attempt to verify this work experience, the Department of Home Affairs (“the Department”) made a series of employment verification checks based on the details provided by the applicant. In February 2019, a Departmental officer telephoned the Institute and spoke with a Dr Soni, who identified themselves as the principal of the Institute. That person was asked if they were familiar with the applicant and in what capacity he was currently employed at the Institute. It was confirmed that the applicant commenced employment at the Institute six years ago. The person advised that the applicant teaches computer to students. The person advised the applicant is still employed with the Institute, but was currently on leave.
On 11 April 2019, the applicant was provided with 28 days to provide comment on the suspected ‘non-genuine’ information supplied to the Department. On 8 May 2019, evidence was provided to the Department consisting of seven personal statements from various persons. The delegate accepted that the employer has web presence and is located in the village situated within Punjab. Evidence regarding a difference in telephone numbers provided by a Dr Soni is given little weight as it is in contrast to attempts made by Departmental officers to make contact with the Institute.
With regards to personal statements prepared by four work colleagues, the delegate found these documents were personal statements only and without the provision of independent third-party verifiable evidence. The delegate concluded they do little to support the claims of the applicant and were given little weight. With regards to a personal statement by Dr Anita Soni, it was noted she provided different version of events than those provided when questioned by departmental officers by telephone in February 2019. The delegate placed greater weight on the spontaneous responses provided to departmental officers at the time of the telephone interview and therefore afforded this document little weight.
Accordingly, the delegate concluded that the applicant provided false information, including that he ceased employment with the Institute on 17 January 2018 and he was employed as a Teacher of Computing and not as a Network Administrator, as claimed in his visa application.
Grounds of Appeal
A single ground of appeal is relied upon as follows, verbatim:
1. The applicant applied for a Skilled Regional Sponsored (Provisional) sub-class 489 visa on 19 May 2018 as a Network Administrator. The applicant claimed that sometime in the past he had been employed by the Punjab Institute is a Network Administrator. In February 2019, the Minister commenced verification procedures, the result of which the Punjab Institute of Technical Education confirmed the employment of the applicant for the past six years, and that he was currently employed as a teacher of computer studies. The applicant was given certain time to respond to provisional findings that he had provided bogus information pursuant to PIC 4020 of the Migration Regulations. The applicant duly supplied written statements but the Minister confirmed the provisional finding of fraudulent conduct and refused the issue of the visa for which the applicant had applied and which the applicant claims was contrary to law and imposed a bar. The applicant says the delegate has misconstrued his claims by regarding past employment as a Network Administrator as being a statement of his current occupation (which he had never intended to convey and could not reasonably inferred from what it claimed in his written on-line application) which the applicant says was contrary to law.
The Applicant’s Submissions
Counsel for the applicant submitted that no bogus documentation or information was ever provided to the Minister. It is noted that the Minister used Google to ring one particular telephone number, however, made no attempt to call each of the other two numbers that were listed. Further, those alternative numbers were listed in a reference letter provided to the applicant by Dr Singh.
Counsel for the applicant submitted that if the main landline was not answered, this was not a matter that could be used to discredit the applicant. Secondly, the Minister found that Dr Soni was the working principal of the Institute. There is no evidence to suggest this. There is no fact upon which this finding can be made. Dr Soni did not represent herself as the principal of the Institute.
In relation to the claim by the Minister that the applicant lied that he had worked at the Institute since 2010, Counsel for the applicant submitted that all the applicant claimed, was that he had worked at the Institute since the time Dr Soni started, which was in 2013. Whilst that is true, it is also true that there is material which verifies that the applicant has worked at the Institute since 2010. The Minister based its conclusion that the applicant had lied or provided misleading information, based on Dr Soni’s responses, when it may well be the case that Dr Soni was mistaken. Further, the Minister erred in placing greater weight on the spontaneous information of Dr Soni, as compared to the information she provided in a statement dated 3 May 2019.
The claim that Dr Soni asserted the college closed last year, was incorrect. The college remains open as per the All India Council for Technical Education site. Again, Dr Soni gave inaccurate information.
Whilst Dr Soni put that the applicant teaches computer to students, Counsel for the applicant submitted this is both true, but not a fully correct description of the applicant’s role. It is asserted that the applicant is in fact the Network Administrator, but also does teach some computing to students.
Counsel for the applicant submitted that this is a case where the evidence is clear and the applicant has been honest with the Department, at all times and that any finding that he has not been honest, is a grave error. The finding that the applicant misled or not been genuine, at any time, is a serious jurisdictional error.
The Respondent’s Submissions
After noting that the application for judicial review is out of time and objecting to the applicant’s affidavit of 20 April 2020, Counsel for the respondent submits that the sole ground for review, advanced on behalf the applicant, is misconceived and proceeds upon a mistaken factual premise. Indeed, the applicant now appears to be abandoning this sole ground of review in this proceeding, upon some un-particularised contention that the delegate erred in fact-finding.
In terms of the original judicial review application, which was that the applicant had “sometime in the past been employed by the Punjab Institute is a network administrator” and that the applicant “never intended to convey and could not be reasonably inferred open”, that he claimed to be currently employed as a Network Administrator, Counsel for the respondent submits that the evidence reveals that:
1. In the skills visa application, the applicant stated that his “current employment situation” was as a “Network Administrator”.
2. In the materials that accompanied his visa application, the applicant included a reference which stated that he had worked as a Network Administrator from 1 August 2010 to 16 January 2018.
3. In the materials provided in response to the Department’s letter of 11 April 2019, the applicant included statements from four colleagues, each of whom stated that the applicant had been working as a Network Administrator. Dr Soni stated the applicant was working as a Network Administrator. Mr Singh confirmed that the applicant had been working since 1 August 2010, to date, as a Network Administrator. In the applicant’s statement, provided on 8 May 2019, he stated that he had been working as a Network Administrator to date and this had not ceased on 17 Jan 2018.
The above materials contain a clear and unequivocal statements by the applicant and in supporting evidence that he was currently employed as a Network Administrator, which contradict the assertions made in the judicial review application that the “delegate misconstrued his claims by regarding past employment as a network administrator as being a statement of his current occupation”. In the light of the above, Counsel for the respondent submitted that there is no basis that the delegate misconstrued the applicant’s claims or evidence. The delegate correctly noted that the applicant claimed to be currently working as a Network Administrator and that this claim was inconsistent with evidence obtained from the independent verification checks undertaken by the Department. No jurisdictional error is made out in the pleaded ground.
In contrast to the applicant’s pleaded ground, in the submissions, he contends that he was employed as a Network Administrator until 2019, but that the delegate made certain factual findings that “cannot be found in any interpretation of the evidence put before the Minister”. Contrary to what is suggested by the applicant, the delegate did not find that the applicant had given a “bogus document”. Rather the delegate was not satisfied that PIC 4020 had been satisfied because there was evidence the applicant had given “information that is false or misleading in a material particular”, namely information concerning his claimed employment with the Punjab Institute of Technical Education. Counsel for the respondent submits, in the present case, the evidence relied upon in the foundation for the delegate’s decision, are clear and evident on the face of the decision record.
Counsel for the respondent submits that none of the matters raised in the applicants submissions are capable of demonstrating jurisdictional error, in particular:
a. Most of the applicant’s submissions amount to no more than a disagreement with the manner in which the Department undertook verification checks. It is not submitted this was procedurally unfair or erroneous, for such checks to be undertaken. It is clear the delegate took into account and could do so, as relevant consideration, the fact that there had been “numerous attempts” as to telephoning the Institute’s main landline, all of which had gone unanswered and the applicant’s explanations were unsatisfactory.
b. Dr Soni was clearly identified in the April letter as being “the working principal of the Institute”, being information given by her to the departmental officer during a telephone call. Furthermore, the applicant, despite suggesting that Dr Soni only had “partial knowledge” of the applicant’s employment, did not suggest he was an unreliable source of information. In the absence of such correction or disavowal by Dr Soni and in the face of the other inconsistencies between “spontaneous responses” obtained by the department and documentary evidence submitted by the applicant, it was open to the delegate to place greater weight on the evidence given by Dr Soni on the phone call.
c. The majority of the applicant’ contentions rest upon material that was never provided to the delegate, despite it being open to the applicant to have done so. This amounts to an invitation for the Court to conduct impermissible merits review.
d. Contrary to the contention made in submissions, the delegate did not place any weight on information concerning the closure of the college.
e. Other submissions, in substance, no more than attempt to cavil with the delegate’s assessment of the evidence before it and the weight to be given to it.
f. Finally, it is clear the delegate gave a number of independent reasons for finding that PIC 4020 was not satisfied
In short, Counsel for the respondent submits that the applicant’s contentions failed to rise any higher than impermissible attempt to engage this Court, in merits review and further disagreement with the delegate’s decision. It cannot be said that the findings were unintelligible or lack a probative logical connection.
Consideration
The first matter that needs to be dealt with relates to whether an extension of time should be granted to allow the applicant to seek judicial review in this Court. The application was filed 65 days after the relevant migration decision and well outside the 35 day time limit provided by s 477(1) of the Migration Act 1958 (Cth) (“the Act”).
The respondent submits that the applicant has not provided any reasons why it is in the interest of justice, that an extension order for the time limit to file an application with the Court, should be made. It is further submitted that at a reasonably ‘impressionistic level’, the sole ground of appeal, has little or no prospect of success.
The applicant is and always has been outside the jurisdiction and resident in India. This mitigates in the applicant’s favour. It appears it has been necessary for the applicant to change legal representatives, given the failure of his first representatives to comply with Court orders. The Court also takes into account the seriousness of the findings that the applicant gave false information, which will result in a time bar for further visa applications. In all of the circumstances, the Court is satisfied that an extension of time should be granted, pursuant to s 477(2) of the Act and the Court will make that order.
The second issue relates to the receipt of the applicant’s affidavit dated 16 April 2020.
The respondent objects to the affidavit as it comprises almost entirely of documents and material that was not before the delegate. Counsel for the respondent submitted that it is not permissible on judicial review, to seek to adduce evidence to “contradict the material upon which the Minister made his findings (see Minister for Immigration and Border Protection v Tesic (2017) 251 FCR 23 at [64]), or “for the purpose of inviting the Court to disagree with a factual conclusion reached by the [decision maker]” (see MZXHY v Minister for Immigration and Citizenship [2007] FCA 622 at [8]).
Counsel for the respondent also submits that no adequate explanation is put forward, as to why the information was not before the Minister, given the applicant was invited to comment on the adverse material and put on additional material prior to the delegate’s decision.
It is not the role of the Court to undertake merits review. The Court must confine itself to the material that was before the Minister, when considering whether or not there has been jurisdictional error on the part of the Minister. Accordingly, the tender of the affidavit was rejected.
The ground of appeal is rather vague and particularised. While the Court notes the submissions of the respondent, the Court proposes to understand the ground as being the decision of the delegate, is legally unreasonable.
One of the most recent summaries of legal unreasonableness appears in Vo v Minister for Home Affairs [2019] FCAFC 108 at [43], as follows:
1. the test for unreasonableness is stringent and extremely confined: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [11], [52] and [113];
2. where reasons have been provided then the reasons are the focal point for assessing whether the decision was unreasonable: Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 at [46] –[ 47];…
8. mere strong disagreement with factual reasoning does not established jurisdictional error: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 at [40];
11. there must be an error so grave both as to its nature and the significance of its subject matter that it results in a decision that has been reasoned in a manner that is not authorised: Hossain at [25], [30] – [31].
The issue in the current matter, centres on the verification checks carried out by the Department, in relation to the claim by the applicant that he was a Network Administrator, with the Punjab Institute of Technical Education for three in ten years. The delegate concluded that those checks were unable to verify the claim and information was inconsistent with the applicant’s claims.
Following the verification checks carried out by the Department, the applicant was provided with the notification that the Department had received unfavourable information. This centred on whether or not the applicant claimed that he was working as a Network Administrator. The evidence provided in response, was set out in a letter dated 5 May 2019 from the applicant, to the Department. This included a letter from Dr Soni in which she stated, at [100] of the Court book:
I provided some information on the phone related to the applicant’s employment. Mr Parmindeer Preet Singh works in a different college operated PGC. I am not his direct supervisor. It was a brief call on my work mobile as I was already in the meeting when I was called the second time. I requested to be called back after 3pm later that day on the same number but I did not receive any call after 3pm.
There was a further explanatory letter from Mr Nirmal Singh, the Chairman of the Punjab Group of Colleges (PGC). This letter confirmed that the applicant had been working at the Institute from 1 August 2010, as a Network Administrator. Mr Nirmal Singh confirmed that the college will cease to operate in the coming years. Mr Nirmal Singh provided an explanation as to why landline numbers may not have been answered. No reason is given as to why Mr Nirmal Singh’s evidence should be given little weight.
In the decision of the delegate, it is stated that the material provided does not address direct inconsistencies with the spontaneous responses provided by a person, the delegate described as the Principal, Ms Soni. For instance, Ms Soni advised, in the telephone conversation, that she had commenced work at the Institute six years ago, in approximately 2013 and not 1 August 2010, as stated by the applicant in his personal statement. Rather, the delegate prefers the material, which is recorded by the Department, in its telephone conversation with Ms Soni. Ms Soni, in her letter of 3 May 2019, provides an explanation as to the confusion in the conclusions of the delegate. This includes that Ms Soni was interrupted in a meeting and that when she asked for the caller to ring back, they did not do so. The delegate says they preferred the information spontaneously provided in the telephone call.
Also included in evidence, were four letters, each dated 6 May 2019 from work colleagues of the applicant. Each letter was attested to be a true copy before a notary public and included a copy of the identity card of the writer, which indicated their position within the Punjab Institute of Technical Education.
The statements prepared by the four work colleagues are categorised as being “personal statements” only and without the provision of independent third-party verifiable evidence, they do little to support the applicant’s employment claims. The Court finds this statement very difficult to accept. What verifiable third-party evidence would have been acceptable, in the applicant’s circumstances, is very difficult to understand. These were work colleagues of the applicant. Their position within the employer is verified through the attachment of their identity cards, which shows they are employees and their positions within the Punjab Institute. The conclusion that the evidence within the statements is not independent third-party verifiable evidence, is to the Court’s mind, illogical and irrational. The Department took no steps to verify the information with particular individuals and simply dismissed it and gave the statements little weight.
There is no discussion as to why the evidence of Mr Nirmal Singh should be dismissed, other than that attempts made by departmental officers, who called to speak to Mr Nirmal Singh numerous times, on different days, were unanswered. The Court does not consider that to be an acceptable basis for discounting what is otherwise clearly documented evidence by person in a position of authority. No search appears to have been done to confirm or deny whether or not Mr Nirmal Singh held the position that he claimed. The Court considers that the dismissal of the information in Mr Nirmal Singh’s two letters to be illogical or irrational.
The Court is satisfied that the finding that the applicant commenced employment at the Institute, in approximately 2013 and not in August 2010, was a central part of the decision to find that the applicant had provided material to the Department, that was false or misleading in a material particular. The Court is satisfied that the reasons for dismissing the evidence provided by the four work colleagues is irrational and illogical. The Court is satisfied that as a result, this decision is affected by jurisdictional error.
Conclusion
The application is upheld and the Court grant’s the orders sought in the application filed 12 July 2019, which are as follows:
1. An order that the decision of the Tribunal, Immigration Assessment Authority or Minister be quashed.
2. A writ of mandamus directed to the Tribunal, Immigration Assessment Authority or Minister, requiring them to determine the applicant’s application according to law.
3. An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from making the future decision or taking the other action the subject of the proceedings.
The Court further order that the applicant’s legal costs be paid by the Minister.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Humphreys
Associate:
Date: 5 June 2020
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