Singh v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 835
Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal (now the Administrative Appeals Tribunal) – where visa application contained false information about a claimed skills assessment – alleged fraud on the part of a migration agent – whether the visa application was invalid, the delegate’s decision unlawful or the Tribunal decision unlawful – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46, 47, 48, 69, 95, 98, 338, 348, 349

Migration Regulations 1994 (Cth), cls.485.221, 485.224(a)

Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876
Collector of Customs (NSW) v Brian Lawlor  Automotive Pty Ltd (1979) 24 ALR 307; [1979] FCA 21
Craig v State of South Australia (1995) 184 CLR 103; [1995 HCA 58
Gill v Minister for Immigration & Anor [2015] FCCA 1
Jalagam v Ministerfor Immigration and Citizenship [2009] FCA 197
Ma v Minister for Immigration and Citizenship [2007] FCAFC 69
Minister for Immigration and Border Protection v Kim (2014) 221 FCR 523; [2014] FCAFC 47
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114
Minister for Immigration and Citizenship v Lu (2010) 189 FCR 525; [2010] FCAFC 147
Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435; [1999] FCA 1679
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486; [2000] FCA 1456
Minister for Immigration and MulticulturalAffairs v SZFDE (2006) 154 FCR 365; [2006] FCAFC 142
Najarian v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 695; [2000] FCA 933
NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199
Patel v Minister for Immigration and Border Protection (2015) 145 ALD 566; [2015] FCAFC 22
Plaintiff S157 of 2002 v Commonwealthof Australia (2003) 211 CLR 476; [2003] HCA 2
Prodduturi v Minister for Immigration and Border Protection (2015) 144 ALD 243; [2015] FCAFC 5
Singhv Minister for Immigration and Border Protection [2015] FCAFC 151
Singh v Minister for Immigration and Border Protection & Anor [2014] FCCA 2867

SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53; [2006] FCA 31
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZGJO v Ministerfor Immigration and Multicultural and Indigenous Affairs [2006] FCA 393
SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] FMCA 1349
SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; [2008] FCAFC 91
SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170; [2008] FCAFC 152
SZMME v Minister for Immigration and Citizenship [2009] FMCA 323
SZMWT v Minister for Immigration and Citizenship (2009) 109 ALD 473; [2009] FCA 559
SZQVV v Ministerfor Immigration and Citizenship (2012)…

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Details
Case
[2016] FCCA 835
Decision Date

CaseChat Overview and Summary

This matter came before Judge Barnes concerning an application by Mr. Singh against the Minister for Immigration. The core dispute revolved around the validity of a visa application and the subsequent decision made by the Migration Review Tribunal. Mr. Singh contended that the Tribunal erred in treating his application for a Subclass 485 visa as valid, arguing that it was fundamentally invalid from its inception.

The legal issues before the court were whether the Migration Review Tribunal erred in law by treating Mr. Singh's application for a Skilled (Provisional) (Class VC) (Subclass 485) visa as valid. Specifically, the court was required to determine if the application failed to satisfy the criteria set out in Schedule 1 of the Migration Regulations, thereby rendering it invalid. This involved examining whether the applicant met the requirements for a skills assessment and the nomination of a skilled occupation, as stipulated in Item 1229 of the Regulations.

The court considered the principles established in cases such as *Project Blue Sky Inc v Australian Broadcasting Authority* and *Bhardwaj*, which address the consequences of administrative decisions made in breach of statutory conditions. The court noted that an act done in breach of a condition is not automatically invalid; its invalidity depends on discerning a legislative purpose to invalidate such acts, ascertained by reference to the statute's language, subject matter, objects, and consequences. The court also considered the potential impact of sections 47, 48, and 69 of the *Migration Act 1958*, and Public Interest Criterion 4020. The applicant's argument that the Tribunal's decision was a nullity due to jurisdictional error was not established.

Ultimately, the court found that the applicant had not established a basis for the orders or declarations sought, including the claim that the court lacked jurisdiction, which was contingent on proving the invalidity of the Tribunal's decision. Therefore, the grounds raised by the applicant did not support the relief sought.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In Jadwan the Full Court had observed (at [41]-[42]) in relation to Plaintiff S157/2002 that:… As was the case in Bhardwaj itself, their Honours did not deal in S157 with the possible status of an administrative decision affected by jurisdictional error in the absence of a challenge to its validity, or after a court has found such error to have existed, but has declined to treat the decision as a nullity.In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388–9 ; 153 ALR 490 at 515:An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition (emphasis added). As the First Respondent pointed out, part of the statutory context which would have to be considered had the visa application been found to be invalid, would be s.69 of the Act (as well as s.48 and PIC 4020). The First Respondent submitted that if the application was invalid the only effect of this would have been that the delegate had not acted in accordance with s.47(3), but that s.69 would preserve validity, at least for the purposes of the matter going on review to the Tribunal in the manner considered above (see Li at [81] and [82]). Thus, even if the original application was invalid, that would not invalidate the delegate’s decision such as to render it a nullity in the sense contended for by the Applicant, whether in reliance on the principles in Bhardwaj or otherwise. The Applicant’s submissions did not address such contentions, except to submit that s.69 never arose because there was “no decision for anyone to review”. In these circumstances, given that jurisdictional error has not been established on any of the bases contended for by the Applicant, I do not consider it appropriate to consider this issue further. Insofar as it was submitted that this Court has no jurisdiction, such submission was dependant on the Applicant establishing invalidity of the Tribunal decision. This claim has not been made out. Grounds 1 to 8 do not establish a basis on which to make any of the orders or declarations sought by the Applicant. In the course of oral submissions, the Applicant raised (for the first time) a separate basis on which it was asserted that the Tribunal erred when it treated his 2011 application for a Subclass 485 visa as a valid visa application. He was given leave to file a Further Further Amended Application. Mr Ford made oral submissions in relation to such proposed new ground. The parties also had the opportunity to address this new ground (Ground 9) in post-hearing written submissions. It is as follows:9. The Migration Review Tribunal (Tribunal erred) (sic) when it treated the application for a Skilled (Provisional) (Class VC) (Subclass 485) visa as a valid application. Particularsa. The Applicant applied for a Skilled (Provisional) (Class VC) visa on 28 September 2011. b. There are two subclasses of visa in the class VC. They are the 485 (skilled as graduate) and the 487 (skilled as regional sponsored) visa;c. Sections 45, 46 and 47 of the Migration Act 1958 require the Minister and the Migration Review Tribunal to assess the application against both of the subclass criteria. In this case, this means that the decision-maker is required to assess the application against the 487 visa. Even though S and S Migration indicated that it was their intention to apply for the 485 visa, the application must also be assessed against the 487 criteria. The fact that Schedule 1 of the Migration Regulations states that the criteria is only for non 485 visa applications does not mean that it does not apply to the applicant. It does apply to the applicant.d. Sections 45, 46 and 47 of the Migration Act stipulate that the satisfaction of the Schedule 1 criteria is a requirement for the making of a valid visa application. Schedule 1 goes to the validity of a visa application. If an application does not satisfy Schedule 1 then the application is not a valid visa application. e. Item 1229 as at 28 September 2011 states at 1229(3)(aa)(i) that if the applicant is not seeking to satisfy the criteria for the grant of a Subclass 485 visa and has not nominated a skilled occupation, the applicant’s skills must have been assessed by the relevant assessing body.f. Here the applicant was also seeking to satisfy the 487 criteria and therefore was required to provide a skills assessment. S and S Migration provided a fake skills assessment. The provision of a fake skills assessment does not mean that a skills assessment was provided. It means that no skills assessment was provided. As no skills assessment was provided, the application was therefore an invalid application.g. The same approach applies to Item 1229(3)(ab).h. Item 1229(7)(b) provides that the applicant is seeking to satisfy the criteria for the grant of both subclasses of visa must be less than 50 and must nominate a skilled occupation. Item 1229(7) applies to both the 485 and the 487 visa.i. In this case, however, an occupation was nominated but it was a fake occupation. This means that no occupation was in fact nominated. As no occupation was nominated, the application was an invalid application, and therefore, the Minister was precluded from considering an application that is not a valid application. The provision of the occupation was a condition precedent to the validity of the occupation (sic). It appears in Schedule 1 and it goes to the validity of the application.

Ratio Decidendi

Legal Principle Established

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