Singh v Minister for Immigration

[2015] FCCA 3094

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3094

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – application for student temporary visa – application of public interest criterion relating to supply of false or misleading information – allegation of fraud by migration agent – applicants concede false documents supplied in support of application – submission that applicants not complicit in provision of information – Tribunal rejected submission on credibility grounds – no jurisdictional error established – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5; 360; 474; 476

Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Craig v South Australia (1995) 184 CLR 163
Minister for Immigration & Multicultural Affairs: Ex-parte Durairajasingham (1999) 168 ALR 407
Trivedi & Ors v Minister for Immigration & Border Protection & Anor (2014) 220 FCR 169

First Applicant: ALKA SINGH

Second Applicant: MANJINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: ADG 452 of 2014

Judgment of: Judge Brown

Hearing date: 14 October 2015

Date of Last Submission: 14 October 2015

Delivered at: Adelaide

Delivered on: 23 November 2015

REPRESENTATION

Counsel for the Applicant: In Persons

Counsel for the Respondents: Ms Noble

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent's costs fixed in the sum of $6,825.00.

3. The Administrative Appeals Tribunal replace the Migration Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 452 of 2014

ALKA SINGH

Applicant

MANJINDER SINGH

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The primary applicant in these proceedings is Mrs Alka Singh.  On 4 March 2013, she applied for a student (temporary) class TU Visa,[1] pursuant to the provisions of section 65 of the Migration Act 1958 (Cth) “the Act”.

   [1]  Hereinafter referred to as “the visa”

2. The grant of the visa is subject to the satisfaction of a number of criteria described in the Migration Regulations 1994, in particular clause 572.224 contained in schedule 2 of the Regulations.  This clause attracts public interest criterion 4020[2] contained in Part 1 of Schedule 4 of the Regulations.  In general terms, PIC 4020 requires, prior to the granting of the visa in question, that:

   ·There is no evidence before any relevant decision maker that a bogus document or information that is false or misleading in a material particular has been provided in respect of the application for the visa concerned;

   ·The applicant and each member of the dependant family unit has not been refused a visa because of a failure to satisfy PIC 4020 in the preceding period of three years. 

   [2]  Hereinafter referred to as PIC 4020

3. Pursuant to the provisions of PIC 4020(5), the requirement relating to the vitiation of any visa application, because of the production of a bogus document or the provision of false or misleading information, may be waived, if there are compelling circumstances, affecting the interests of Australia or an Australian citizen or permanent resident sufficient to justify the granting of the visa in question. 

4. The secondary applicant, in these proceedings, is Manjinder Singh.  He is the husband of the primary applicant.  Both applicants are citizens of India.  Following their arrival in Australia, on 5 March 2013, the primary applicant was requested to supply further information in respect of her visa application. 

5. Germane to these proceedings, she was requested to provide evidence that she had sufficient funds to support herself and any family members accompanying her, for the first twenty-four months of her stay in Australia, whilst she pursued her studies in this country.

6. On 3 April 2013, the primary applicant provided copies of statements relating to deposits held in the Canara Bank, at its branch at Janakpuri, New Delhi.  On 2 July 2013, a delegate of the Minister for Immigration & Border Protection wrote to Mrs Singh and indicated that the Department had reason to believe that although the various fixed deposits, at the Canara Bank existed, they did not match the identity of the sponsor of the primary applicant – her mother in India.  Given the circumstances, the delegate asked Mrs Singh to comment on this information. 

7. Mrs Singh responded to this request in a letter dated 20 July 2013, in which was enclosed an affidavit from Veena Rani, the applicant’s sponsor and new financial documents.  The earlier bank statements from the Canara Bank had been in the name of Veena Rani.

8. In her letter, the primary applicant claimed that the bank in question had sent her the wrong documents, which she had sent on without checking.  She professed herself to have been astonished that the documents were bogus.

9. On 30 August 2013, the Minister’s delegate declined to grant the visa in question.  In his decision, the delegate said as follows:

   “Although the applicant has provided additional financial documents to support her application, this new evidence does not address the fact that the original documents were fraudulent.

   In summary, I am not satisfied that the applicant has proved that she did not provide a fraudulent document as part of her visa application and therefore I am not satisfied that the applicant meets Public Interest Criteria 4020.”[3]

   [3]  See casebook at pages 74-75

10. This decision was subject to review in the Migration Review Tribunal.  The review application was lodged on 16 September 2013.  On 13 November 2014, the Migration Review Tribunal affirmed the earlier decision of the Minister’s delegate not to grant the applicant’s the visa.  It is this decision, which is the subject of the current application before the court. 

11. The Migration Review Tribunal has been abolished.  Its functions are now carried out by the Administrative Appeals Tribunal.  I will refer to the relevant decision maker, in these reasons for judgment as “the Tribunal”.

The grounds of review

1. The primary applicant has prepared her own grounds for review, which were filed in the court on 3 December 2014.  She seeks an order that the Tribunal decision be quashed.  The sole ground of her application is as follows:

   “I wish to submit my application to review my case in court as it was dismissed by DIPB & MRT.  I applied for Student visa subclass 572 which got refused due to fraudulent financial documents submitted by my agent then without our knowledge.  I was not even aware that the financial document for funds had been submitted to Department.  The respected MRT member did not considered the factors of ours being unrelated and unknown with the issue and it was therefore difficult for me to explain my opinions and defend my claims which had affected the outcome significantly in opinion.  I thereby request the court to accept my application for further hearing and provide justice to my case as I have all the required documents & I have many points to submit in front the Hon. Judge.”

The applicable legal considerations

1. The legal principles applying to applications of this type are complex.  I will do my best to explain them.  In simple terms, the process of judicial review is not a re-hearing of the original application, in which this court is free to substitute its own findings of fact and exercise its own discretion in place of what the original decision-maker did. 

2. Rather, what an applicant for judicial review must establish is that there is some form of legal error in what the original decision maker decided or how it was decided, which caused the Tribunal in question not to properly exercise the jurisdiction conferred upon it. 

3. Accordingly, the focus, in these proceedings, is on whether there has been a jurisdictional error in the decision of the Migration Review Tribunal.  Part VIII of the Act deals with judicial review.  Pursuant to section 476(1), this court has the same original jurisdiction, as does the High Court, in what are termed migration decisions. 

4. Pursuant to paragraph 75(v) of the Constitution, the High Court has authority to grant prerogative writs against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the MRT by way of a writ of certiorari, which is what, in effect, the applicant seeks. 

5. However, pursuant to section 476(2), the Federal Circuit Court has no jurisdiction in respect of what are termed to be privative clause decisions.  A migration decision is defined, in the applicable provision of the Act, as such a privative clause decision.[4] 

   [4]  See Migration Act at section 5

6. Pursuant to section 474, privative clauses are deemed to be final and conclusive and as such, must not be challenged or reviewed in any court or subject to writs of certiorari or mandamus.

7. Accordingly, the decision in question, in these proceedings, being a migration decision is also a privative clause decision.  As such, the court does not have jurisdiction to re-hear the matter, as a consequence of the provisions contained in section 474 of the Act. 

8. However, in a number of cases, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by Tribunals, which are affected by jurisdictional error or have been made in bad faith.[5]

   [5]  See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476

9. In general terms, an administrative Tribunal exceeds its powers and thus falls into jurisdictional error, if it identifies a wrong issue; asks a wrong question; ignores relevant material; relies on irrelevant material; or, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, in a way that affects the exercise or purported exercise of the power conferred upon it.[6]

   [6]  See Craig v South Australia (1995) 184 CLR 163

10. As previously indicated, jurisdictional error is a complex concept.  In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, as it has been held that such breaches have the consequence of vitiating the jurisdiction of the Tribunal concerned and be in themselves errors of jurisdiction. 

The decision of the Tribunal

1. The procedure to be followed by the Tribunal, on the hearing of a review application, is set out in Division 5 of the Migration Act.  Pursuant to section 360 the Tribunal is required to invite any applicant to appear before it to give evidence and present arguments which relate to the issues arising in relation to the decision under review. 

2. Such an invitation was proffered to the applicants, which they took up.  The central issue before the Tribunal was the nature and consequence of the bank records, relating to the various deposits in the name of Veena held by the Canara Bank.  The applicants gave evidence to the Tribunal in respect of this issue. 

3. I have not been provided with a transcript of the applicant’s evidence before the Tribunal.  However, it is clear from the relevant decision of the Tribunal and from the first applicant’s recent written submissions to this court, that it is the position of Mr & Mrs Singh they were the victims of a fraud committed by their previous migration agent, Mr Vishal Sharma. 

4. At hearing, the Tribunal found that the owner of the accounts, with the Canara Bank, initially submitted to the Department, lived at an address some 400km away from the address of Mrs Singh’s sponsor.  Mrs Singh confirmed to an officer of the Department that her mother had lived at the same address for 25 years and had never been to Delhi, where the owner of the Canara Bank accounts was recorded as residing.

5. The applicants do not dispute that neither they nor their Indian sponsor had any connection with the bank accounts in question.  However, it was their position before the Tribunal that they had no personal connection with the documents.  Accordingly they submitted to the Tribunal that they had neither knowledge nor had authorised the production of the banking records to the Tribunal. 

6. Rather, Mrs Singh deposed that she had paid Mr Sharma a sum of $2,800.00 to assist her with the visa application.  This sum had been paid into an account nominated to her by Mr Sharma, whom she had not actually met face to face.  Mrs Singh apparently now is of the view that Mr Sharma is not a registered migration agent.

7. The Tribunal questioned Mrs Singh as to whether she had reported her complaints, regarding the alleged misconduct of Mr Sharma, to either police or immigration authorities.  In this regard the Tribunal summarised Mrs Singh’s evidence as follows:

   “The applicant’s evidence at hearing was that she threatened Mr Sharma with going to the police if he didn’t provide her with documents.  She claimed that he subsequently responded to her demands and provided her with details of the application and the email address and password (which she states he had improperly created in her name).  She did not give evidence that he returned the $2,800 which she paid to him directly to his Commonwealth bank account…”[7]

   [7]  See casebook at page 173 [13]

8. It is clear from its reasons, that the Tribunal did not find this explanation credible.  It was dubious that Mrs Singh had not made a complaint to police and particularly had not provided the authorities with details of Mr Sharma’s bank account.  In the Tribunal’s view, these would have been relatively easy matters for her to accomplish.

9. Overall, the Tribunal considered that the applicant’s responses to questions asked of her to be evasive, rehearsed and lacking credibility.  As such, the Tribunal rejected the applicants’ contention that the documents provided to the Department had been procured as a consequence of a fraud occasioned upon them by Mr Sharma.

10. In addition, the Tribunal rejected the submission that the incorrect bank documents had been provided to the Department as a result of an inadvertent mix-up or some form of innocent mistake or administrative error.  As a consequence of these findings, the Tribunal concluded as follows:

    “…the tribunal is satisfied that false or misleading information was provided in support of the visa application in the form of certifications from the Canara Bank as to deposits held with that financial institution purportedly in the name of the applicant’s mother.  Those accounts did not belong to the applicant’s mother but to a person with the same or similar name.”[8]

    [8]  Ibid at page 173 [16]

11. Thereafter the Tribunal concluded that the requirements of PIC 4020 should not be waived, as there were no compelling or compassionate circumstances affecting the interests of any Australian citizen or permanent resident.  The Tribunal reached this conclusion after having asked Mrs Singh whether there were any such circumstances and she had indicated that she knew of none apart from her own studies.

Conclusions

1. In their application, Mr and Mrs Singh focus on issues relating to the alleged fraud of Mr Sharma on them.  It is clear, in my view, from a plain reading of the reasons of the Tribunal that it did accept the contentions of the applicants, relating both to the purported fraud of Mr Sharma and the possibility that the documents in question had been provided as a consequence of some form of innocent mistake.  It rejected both such contentions.

2. The Tribunal found that Mrs Singh was not a credible witness in respect of the evidence she provided in regards to Mr Sharma and the provenance of the bank records, which she conceded did not relate to her or her mother.   As McHugh J remarked in Minister for Immigration & Multicultural Affairs: Ex-parte Durairajasingham, a finding on credibility is a “function of the primary decision-maker par excellence”.[9]

   [9]  Minister for Immigration & Multicultural Affairs: Ex-parte Durairajasingham (1999) 168 ALR 407 at 423

3. It is not open to this court, on a judicial review application, to undertake its own assessment of the evidence relating to the Canara Bank documents.  That is a function which falls solely within the remit of the Tribunal.  It found, as it was entitled to do, that the Canara Bank documents were bogus.  In my view, on the basis of the evidence available to it, the Tribunal could have reached no other conclusion on any rational or logical basis, given Mrs Singh’s acknowledgement that the holder of the accounts in question was not her mother.

4. In my view, the tenor of the current application is that this court should conduct its own merits hearing into the allegations regarding the conduct of Mr Sharma and conclude that Mr and Mrs Singh have been the victims of his duplicity.  As previously indicated, this court is not empowered to conduct such a merits hearing.  It is entitled to intervene only if a jurisdictional error is established.

5. In my view, it was open to the Tribunal to conclude that the application was vitiated by the provision of fraudulent information.  In this context, the Tribunal considered the definition of bogus document contained in section 97 of the Act.  It also considered what was said by the Full Court of the Federal Court in Trivedi & Ors v Minister for Immigration & Border Protection & Anor[10] and in particular whether it was necessary for the Tribunal to conclude that any applicant concerned was actually aware that purposely untrue information had been provided to it before PIC 4020 became engaged.

   [10]  See Trivedi & Ors v Minister for Immigration & Border Protection & Anor (2014) 220 FCR 169

6. In the case Buchanan J said as follows in respect of public interest criterion 4020:

   “… it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraught from any quarter associated with a visa applicant.  It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application.  It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so.  In many cases that would be impossible and would defeat the apparent intent of the provisions.”

7. Accordingly, in the case, the Full Court concluded that the relevant criterion referred to information that was false, in the sense that it was purposely untrue and further that it was not necessary to conclude that a visa applicant was aware that the information was purposely untrue before the criterion was engaged.

8. In the current case, the Tribunal found that false and misleading information had been provided in support of the visa application.  It further rejected the applicants’ contention that they had been the victims of a fraud or an honest mistake.  As such, it was satisfied PIC 4020 was engaged.  I can see no jurisdictional error pertaining to this decision.

9. In addition, in my view, there is no indication that the Tribunal failed to accord the applicants concerned the prerequisite degree of procedural fairness in respect of the issue of the misleading documents from the Canara Bank.  The applicants were given the opportunity to comment on the documents concerned and provide their explanation as to their provenance, which the Tribunal rejected, as it was entitled to do.

10. In this case, the documents concerned were undoubtedly false, as the accounts related to persons with whom the applicants had no connection.  Having reached this conclusion, it was not necessary for the Tribunal itself to conclude that the applicants themselves knew of the false nature of the documents. 

1. As Buchanan J characterised it, PIC 4020 is a bulwark against deception.  Its purpose is to prevent the integrity of the migration visa system being undermined by deceit and manipulation.  The relevant documents in this case were clearly both false and misleading, in the sense they did not relate to Mrs Singh’s mother. 

2. The Tribunal rejected the accounts provided by the applicants regarding their personal connection with the documents.  In these circumstances, in my view, PIC 4020 was clearly engaged and therefore the Tribunal had no logical or reasonable alternative other than to affirm the decision not to grant the visa in question.  As such the reasons in question disclose no jurisdiction error.

3. There being no discernible legal error, the application must be dismissed.  The first respondent seeks costs in the sum of $6,825.00.  In this case, I accept that costs should follow the result.

4. Given the abolition of the Migration Review Tribunal, I will make an order that the second respondent be replaced with the Administrative Appeals Tribunal.

5. For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Brown

Associate: 

Date:                  23 November 2015