Singh v Minister for Immigration - [2016] FCCA 774

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 774

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal was required to determine if false information was purposely untrue – whether futile to grant the relief sought – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.31, 65, 97, 338, 474
Migration Regulations 1994 (Cth), reg.1.15B, 1.15D, 2.01, Schedule 2 – cls. 855.221, 885.224, Schedule 8 – Public Interest Criterion 4020

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
Lansen & Ors v Minister for Environment and Heritage & Anor [2008] FCAFC 189
Minister for Aboriginal AffairsvPeko-Wallsend Ltd (1986) 162 CLR 24
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

Applicant:

GURVINDER SINGH

First Respondent:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1982 of 2014

Judgment of:

Judge Emmett

Hearing date:

6 April 2016

Date of Last Submission:

6 April 2016

Delivered at:

Sydney

Delivered on:

4 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr David Godwin

Solicitors for the Applicant:

Brett Slater Solicitors

Solicitor for the Respondents:

Mr Julian Pinder
(Minter Ellison Lawyers)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1982 of 2014

GURVINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated and handed down on 19 June 2014 (“the Tribunal”).
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

On 16 July 2009, the applicant lodged an application for a Skilled (Residence) (Class VB) visa with the Department of Immigration and Citizenship (“the Department”).
On 25 November 2013, the Delegate refused the applicant’s application for a skilled visa.
On 12 December 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 19 June 2014, the Tribunal affirmed the decision of the Delegate not to grant a skilled visa.
On 16 July 2014, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Skilled (Residence) (Class VB) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
For the grant of a skilled visa, an applicant is required to satisfy cl.885.224 of Schedule 2 to the Regulations, which relevantly states:
“Criteria to be satisfied at time of decision
885.224 The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020…”
Public Interest Criterion 4020 (“PIC 4020”) relevantly states:
“ (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information..”
(Emphasis added).
Further, “bogus document” is defined in s.97 of the Act, as follows:
“97 Interpretation
In this Subdivision:
…
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.”
Moreover, under cl.855.221 of Schedule 2 to the Regulations, an applicant for a skilled visa is required to meet the qualifying score when being assessed in relation to the grant of the visa under Subdivision B of Division 3 of Part 2 of the Act. That Subdivision provides a points system, under which an applicant for a skilled visa is given an assessed score based on a prescribed number of points for particular attributes. One of the relevant attributes is an applicant’s level of English proficiency, which is assessed under the International English Language Testing System (“IELTS”).
The Regulations distinguish between IELTS test scores evincing “Vocational English” and “Proficient English”. “Vocational English” is defined in reg.1.15B of the Regulations and entitles an applicant to 25 points under the points system. “Proficient English” is defined in reg.1.15D of the Regulations and entitles an applicant to 15 points under the points system.
Under s.338 of the Act, a decision to refuse to grant a skilled visa is a decision which may be reviewed by the second respondent.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

On 26 July 2012, the Delegate wrote to the applicant, inviting him to comment on information contained in his visa application.
Specifically, the Delegate noted that despite being from different employers, many payslips submitted by the applicant in support of his visa application were in the same format.
Moreover, the Delegate noted that some payslips contained irregular amount of hours worked, such as “1.57 hours”, “12.357 hours”, “6.15 hours” and “3.846 hours”. The Delegate put it to the applicant that it was not standard industry practice to work for such periods of time, and therefore, the Delegate had reason to believe that the payslips were false or misleading.
On 22 August 2012, the applicant responded to the Delegate’s concerns by producing letters from some of his former employers, confirming his previous employments.
The applicant also explained to the Delegate that due to the negligence of his accountant, all of the applicant’s original payslips were lost. Consequently, the applicant’s accountant had to reconstruct the payslips based on the applicant’s tax certificates. The applicant’s claim was corroborated by a letter from his accountant.
After considering the applicant’s evidence, the Delegate found that the unusual hours worked by the applicant, as appeared on his payslips, were fabricated in order to align the alleged hours with the amount of income stated on the applicant’s tax certificates.
Accordingly, on 25 November 2013, the Delegate refused the applicant’s application for a skilled visa on the basis that the applicant had given false or misleading information in support of his application and therefore did not satisfy PIC 4020(1)(a) of the Regulations.

The Tribunal’s review and decision

On 12 December 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.
On 27 February 2014, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 5 June 2014 to give oral evidence and present arguments.
On 5 June 2014, the applicant attended the Tribunal hearing and gave evidence.
The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses.
On 19 June 2014, the Tribunal affirmed the decision of the Delegate not to grant the applicant a skilled visa, on the basis that the applicant had not satisfied PIC 4020.
In reaching its decision, the Tribunal found that the applicant had provided the Department with information that was “false or misleading in a material particular” in relation to his English language proficiency. The Tribunal noted that in the applicant’s visa application, he selected “Proficient” as his level of English when in fact his English level was “Vocational” as shown by the applicant’s IELTS test result.
The Tribunal accepted that the applicant could be granted a skilled visa with “Vocational English” proficiency. The Tribunal further acknowledged that the applicant had provided the Department with the correct test date and result. However, since the applicant had chosen “Proficient” as his English proficiency level instead of “Vocational” in his visa application, the Tribunal was not satisfied that the applicant had met the requirements under PIC 4020(1).
The Tribunal also found that the applicant had misled the Department in relation to the length of his employment. Specifically, the Tribunal noted that based on the applicant’s payslips, he would only have worked for 27 or 28 months. However, the applicant had stated that he had worked for at least 36 months in his visa application. Accordingly, the Tribunal found this to be a separate ground in finding that the applicant did not satisfy PIC 4020(1).
Further, the Tribunal found that the applicant had provided false information regarding his employment history. The Tribunal noted that there were discrepancies between the information provided in the applicant’s visa application and information contained in the payslips.
Moreover, since the payslips provided by the applicant to the Department were produced by an accountant, and not the actual employers, the Tribunal found the payslips to be “bogus documents” within the meaning of s.97 of the Act.
Having determined that the applicant had not satisfied PIC 4020(1), the Tribunal considered whether it should waive PIC 4020(1) pursuant PIC 4020(4). However, the Tribunal was not satisfied that there was any evidence to suggest that the requirements of PIC 4020(1) should be waived.
Accordingly, the Tribunal was not satisfied that the applicant had met PIC 4020, and therefore affirmed the Delegate’s decision not to grant the applicant a skilled visa.

The proceeding before this Court

The applicant was represented before this Court by Mr David Godwin, of counsel.
On 3 November 2014, by consent of both parties, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support. The matter was set down for final hearing today.
At the commencement of today’s hearing, Mr Godwin confirmed that Grounds 1 and 2 of the applicant’s initiating application filed on 16 July 2014 were not pressed by the applicant, and that the only ground relied upon was Ground 3, as follows:
“3. The second respondent failed to determine whether the representation relating to English language ability made by the applicant on the application was purposely untrue in circumstances where it was required to make such a determination.”
It is common ground that the applicant had provided incorrect information in his visa application in relation to the details of his language ability. In particular, it was not disputed that the applicant’s answer to the question “What is your language ability?” should have been “Vocational”, whereas the applicant wrote “Proficient”.
The difference in the answers is in relation to the number of points that would be attributed to the applicant under the points system. As noted above, for “Proficient English”, the applicant would be afforded 25 points, whereas for “Vocational English”, the applicant would be afforded 15 points.
At the hearing before the Tribunal, the applicant’s migration agent submitted that the applicant had completed his application without any professional assistance and may not have understood what he was saying in his application. The migration agent also submitted that the applicant had subsequently provided the Department with the correct test result and had no intention to mislead the Department.
Further, the migration agent submitted that even without the points attributable to “Proficient English”, the applicant had sufficient points for the grant of a skilled visa. The Tribunal gave the applicant time after the hearing to provide any further submissions on that point. In a post-hearing submission dated 16 June 2014, the migration agent reiterated that the applicant would have passed the points test, even without the points attributable to his English language proficiency. Although the applicant’s migration agent accepted that the applicant should have entered “Vocational” instead of “Proficient” as his level of English in his visa application, the migration agent reiterated that the applicant had submitted the correct test reference number and date of the test.
After considering the applicant’s evidence and the submissions made by the applicant’s migration agent, the Tribunal made the following finding:
“14. The Tribunal has considered the agent's comments at the hearing and written submissions. However, given that the applicant said that he had proficient English, and was entitled to 10 points as a result when he did not have proficient English, and was entitled to no points for his level of English, the Tribunal finds that there is evidence that the applicant has given, or caused to be given to the Minister or an officer, information that is false or misleading in a material particular in relation to the application for the visa. Therefore, the Tribunal finds that the applicant does not satisfy PIC 4020(1).”
It was common ground that the points referred to by the Tribunal were incorrect but without consequence.
Counsel for the applicant, Mr Godwin, submitted that the Tribunal’s finding was erroneous because it was necessary for it to determine whether or not the false or misleading aspect of the relevant statement was innocent, unintentional, or accidental such that the statement was not purposely untrue in the sense referred to by Buchannan J (with whom Allsop CJ and Rangiah J agreed) in the Full Court of the Federal Court of Australia’s decision of Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 (“Trivedi”). In that case, Buchannan J stated at [32] and [33]:
“[32] It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.
[33] In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. To take the example of bogus documents, a counterfeit document is not produced accidentally.”
The first respondent’s solicitor, Mr Julian Pinder, submitted that the Tribunal considered the applicant’s migration agent’s explanations for the incorrect statement that the applicant had “Proficient English”. Mr Pinder submitted that, having considered those matters, the Tribunal found that there was evidence that the applicant had given or had causes to be given to the Minister information that was false or misleading in a material particular in relation to his visa application.
Counsel for the applicant submitted that the applicant’s explanation amounted to an innocent mistake and that PIC 4020 was not directed to innocent, unintended or accidental mistakes. Counsel for the applicant submitted that to charge that a statement is ‘false’ is not to say only that it is wrong, as stated by Buchannan J in Trivedi at [33]. Buchannan J in Trivedi suggested that the accusation potentially imported some elements of knowledge of the falsity or some intention to provide false information. Certainly, the conclusion made by the Tribunal was that the applicant caused to be given to the Minister information that was false or misleading in a material particular in relation to his visa application.
As noted above, PIC 4020(5) states that information is false or misleading in a material particular if it is false or misleading at the time it is given. PIC 4020(5) is relevant to any of the criteria to be considered when making a decision on the application, regardless of whether or not the decision is made because of that information.
I accept the submission of counsel for the applicant that to make a finding that information is false or misleading in a material particular is a finding that such information is more than only wrong. In such a situation, where the applicant had raised a number of explanations, each of which was capable of satisfying a decision-maker that the wrong statement was innocent, unintentional or accidental, the Tribunal was required to determine whether it accepted those explanations, or any of them, such that the statement was innocent, unintentional or accidental, rather than false. In the present proceeding, the Tribunal did not do so.
The solicitor for the first respondent, Mr Pinder, submitted that there is nothing in Trivedi to suggest that the Tribunal must, as a necessary preliminary or interim step, make a distinct and separate finding as to whether the information was purposely untrue. I accept that submission as far as it goes.
However, it does not address the statement by Buchannan J in Trivedi at [32] that “different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.” Buchannan J further stated at [33] that it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. As stated above, it imports some element of knowledge or intention on someone’s part in giving a wrong statement.

I accept that it may not be necessary for a Tribunal to make a distinct and separate finding as to whether the information is purposely untrue as a general rule. However, where the applicant had provided an explanation as to why the information is wrong and therefore not purposely untrue, the Tribunal is bound to determine that issue.
The first respondent contended that even if it was an error for the Tribunal to fail to consider the applicant’s explanations as to why the wrong statement was innocent, unintentional or accidental, such an error was not a jurisdictional error. The first respondent submitted that any error by the Tribunal in respect of its consideration of the information provided about the applicant’s English language ability had no material effect on the outcome of the Tribunal’s decision, and that consequently, any such error would not have amounted to a jurisdictional error but rather to an error within jurisdiction.
In support, Mr Pinder referred to Lansen & Ors v Minister for Environment and Heritage & Anor [2008] FCAFC 189, where the Full Court of the Federal Court of Australia referred to Mason J’s observation in Minister for Aboriginal AffairsvPeko-Wallsend Ltd (1986) 162 CLR 24 at [40] as follows:
“Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.”
Mr Pinder submitted that the Tribunal made findings in respect of other information and documents given by the applicant, to the effect that the applicant gave or caused to be given to the Department information that was false or misleading in a material particular and several bogus documents, and those findings are not impugned by the applicant.
Counsel for the applicant submitted that the Tribunal’s ultimate decision not to waive the requirements of PIC 4020(1) and (2) were made cumulatively. Counsel for the applicant submitted that, in such circumstances, the error of the Tribunal in not considering the applicant’s explanations in relation to the English language proficiency error was material and consequently, a jurisdictional error.
In considering PIC 4020(4) (which provided that the Tribunal may waive any breach of PIC 4020(1)) the Tribunal noted that it asked the applicant if there were any compelling circumstances that affected the interests of Australia and noted that there were none. The Tribunal noted the applicant’s request for it to take into account that he had worked for his qualification and any mistakes in his application were due to his lack of knowledge of the procedures. The Tribunal found that evidence did not relate to any of the circumstances in which PIC 4020(1) may be waived. That finding was open to the Tribunal on the evidence and material before it, and for the reasons it gave.
However, I do not accept counsel for the applicant’s submission that the Tribunal’s decision to refuse to waive PIC 4020(1) was as a result of its cumulative consideration of the information and bogus documents given to it by the applicant.
In the circumstances, I am not persuaded that the error that I have found on the part of the Tribunal in failing to consider the applicant’s explanations as to whether the applicant’s wrong statement that he had “Proficient English” was innocent, unintended or accidental, is a jurisdictional error. I am satisfied that the failure of the Tribunal to take into account the applicant’s explanations and the failure to make a finding in relation to those particulars could not have materially affected its decision.
Further, I accept the first respondent’s submission that the discretionary matters set out in PIC 4020(4) are unrelated to the content of PIC 4020(1) and (2) and reasons for any breaches thereof. Accordingly, any error in the Tribunal’s consideration of one of the three breaches of PIC 4020(1) (which I have found) would not have affected the Tribunals consideration of PIC 4020(4). In the circumstances, I do not accept the submissions of the applicant to the contrary.
In any event, even if the Tribunal had committed a jurisdictional error, I am satisfied that there are separate and independent findings that are not impugned by the applicant for the Tribunal concluding that there was evidence before it that the applicant had given or caused to be given ‘bogus documents’ and information that was false and misleading in a material particular. In such circumstances, it would be futile to grant the relief sought (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 at [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).
The consequence of my conclusion above is that, even if the error that I have found is a jurisdictional error, the Court should not exercise its discretion to grant the relief sought. Accordingly, the proceeding before this court should be dismissed with costs.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate:

Date: 4 May 2016