Singh v Minister for Immigration
[2015] FCCA 2836
•23 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2836 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal – application for skilled visa – request to provide information to the Tribunal – invitation to attend Tribunal hearing – non-attendance by applicant – proceedings concluded in the absence of the applicant – application of public interest criterion relating to supply of false or misleading information – allegation of fraud by migration agent – submission that applicant not complicit in provision of information – compassionate and compelling circumstances – finding of fact by Tribunal regarding information provided – not necessary to establish applicant was knowingly concerned in provision of such information – no evidence available to Tribunal regarding satisfaction of skills recognition criterion – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.98; 359A; 360; 360A; 362B; 474; 476(1) Migration Regulations 1994, schedule 2; schedule 4 |
| Trivedi & Ors v Minister for Immigration & Border Protection & Anor (2014) 220 FCR 169 NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199 SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393 Prodduturi & Kaur v Minister for Immigration [2013] FCCA 1805 Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590 Plaintiff 157/2002 (2003) 211 CLR 476 Craig v South Australia (1995) 184 CLR 163 |
| Applicant: | BALJIT SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | ADG 431 of 2014 |
| Judgment of: | Judge Brown |
| Hearing date: | 14 October 2015 |
| Date of Last Submission: | 14 October 2015 |
| Delivered at: | Adelaide |
| Delivered on: | 23 October 2015 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Mr d'Assumpcao |
| Solicitors for the First Respondent: | Australian Government Solicitor |
| Counsel for the Second Respondent: | Submitting Appearance |
| Solicitors for the Second Respondent: | Not Applicable |
ORDERS
The application be dismissed.
The applicant pay the first respondent's costs fixed in the sum of $6,825.00.
The Administrative Appeals Tribunal replace the Migration Review Tribunal as the second respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 431 of 2014
| BALJIT SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings is Baljit Singh “the applicant”. He seeks orders to quash a decision of the Migration Review Tribunal, as the Administrative Appeals Tribunal was formerly known (hereinafter referred to as “the Tribunal”), which was made on 13 October 2014.
In this decision the Tribunal confirmed an earlier decision of a delegate of the Minister for Immigration & Border Protection not to grant the applicant a Skilled (Provisional) Class VC Visa “the visa” pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.
The applicant is a citizen of India. He arrived in this country, in September of 2008, pursuant to a student visa issued on 29 July 2008. Between September 2008 and August 2011, the applicant completed a diploma in community welfare, at a private educational institution located in Adelaide.
The application for the relevant visa in these proceedings was ostensibly lodged by the applicant personally on 29 August 2011 via the Department website. On the electronically generated visa application form, in response to the question did you receive assistance in completing this form, the answer “no” is entered.
In the application form, the applicant purportedly indicated that he wished to be granted the relevant skilled visa, so that he could seek employment as a community worker. In addition, he indicated that his skills had been assessed by Trades Recognition Australia on 18 January 2010.
On 17 February 2012, a delegate of the Minister wrote to Mr Singh indicating that the Department had information available to it, which indicated that the applicant had assistance from a business known as S & S Migration in his visa application. This business had been found to have previously lodged applications, with the Department, which had been found to contain false and misleading information.
In addition, in departmental correspondence dated 17 February 2012, the applicant was advised that departmental staff had identified a file with the applicant’s personal details and application reference numbers in the office of S & S Migration. Mr Singh was invited to comment on this information.
The applicant did not respond to this information to provide information. Thereafter, on 28 May 2012, the Minister’s Delegate declined to grant the skilled 485 visa applied for by the applicant.
The applicant thereafter applied to the Tribunal for a review of this decision. The legislative provisions relating to the functions of the Tribunal are set out in Division 5 of Part 5 of the Act.
Pursuant to section 359A, the Tribunal is required to provide to any applicant concerned with any information which it considers relevant to the decision under review so that such an applicant may provide comment on it or otherwise respond. In this particular case, on 16 April 2014, a letter was sent to Mr Singh inviting him to comment on the following matters:
·Trades Recognition Australia had no record of providing the skills assessment referred to in Mr Singh’s visa application;
·Documents and information relating to Mr Singh had been found at the office of S & S Migration, which entity had been found to have lodged misleading and false information with the department.
There is no controversy that the applicant received the section 359A letter requesting information because he responded to it on 8 May 2014. In his response, he indicated that he had no documents to provide because:
“… S & S migration Agent, Mr Jatinder Singh miss guide and give me the wrong information regarding this visa…, I don’t even know whats (sic) the 457 visa is ...”[1]
[1] See page casebook at page 46
Pursuant to section 360 the Tribunal is required to invite any applicant to appear before it to give evidence and present arguments relating to the issues in relation to the decision under review. In addition, pursuant to section 360A, such an invitation notice must include the date, time and place at which the applicant concerned is required to appear.
An invitation letter was sent to the applicant, at the address nominated by him, following his filing of a change of contact details, on 2 September 2014. The invitation letter nominated a date, time and place of hearing as required.
The decision of the Tribunal
The applicant did not attend the hearing, at the date and time indicated to him. As a consequence, pursuant to the provisions of section 362B of the Act, if an applicant, who has been invited to attend before the Tribunal pursuant to section 360, fails to appear on the scheduled time, the Tribunal has a discretion to make a decision on the review issue without taking any further action to allow or enable the applicant to appear before it.
On the day and time scheduled for the hearing, at the direction of the presiding member, a Tribunal officer telephoned the applicant on the number provided by him in an attempt to contact him. However, there was no response to the call. In these circumstances, the Tribunal determined to finalise the review application pursuant to the power referred to it under section 362B.
The criteria relevant to the grant of the visa are set out in clause 485.224 of schedule 2 to the Migration Regulations 1994. Essentially, it is an essential pre-condition for the grant of the visa in question that the skills of the applicant in his/her nominated occupation have been assessed by a relevant assessing authority as being suitable for that occupation.
In addition, an applicant for a temporary graduate subclass 485 visa must satisfy a number of public interest criteria, which are set out in Schedule 4 Part 1 of the Regulations. In particular, pursuant to public interest criterion 4020, there must be no evidence before the Minister or the Tribunal or other assessing authority that information that is false or misleading in a material particular has been supplied in relation to any application for any 485 visa.
However, pursuant to subclause (4) of public interest criterion 4020 this requirement can be waived if there are compassionate or compelling circumstances that affect the interests of an Australian citizen or the interests of Australia itself.
The expression information that is false or misleading in a material particular is defined in public interest criterion 4020(5). It includes information that is false and misleading at the time it is given and relevant to any of the criteria, which the Minister may consider when making a visa decision.
The Tribunal considered that the application in question contained false and misleading information on the basis that Trades Recognition Australia had no record of providing the skills assessment referred to in it. In this context, it considered that it was not necessary for it to reach a conclusion that the applicant himself was aware that the information was purposely untrue or was complicit in the provision of the false information.
In this regard, it relied on the decision of the Full Court of the Federal Court in Trivedi & Ors v Minister for Immigration & Border Protection & Anor[2] 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.”
[2] See Trivedi & Ors v Minister for Immigration & Border Protection & Anor (2014) 220 FCR 169
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.
The Tribunal also considered the applicant’s correspondence of 8 May 2014, which implicitly suggested that he had no knowledge of the contents of the visa application because it had been completed by Mr Jatinder Singh of S & S Migration. In this context, the Tribunal made reference to section 98 of the Act, which provides as follows:
“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 be filled in or if it is otherwise filled in on his or her behalf.”
In NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs[3] an applicant for refugee status was found to have fraudulently used a pseudonym and claimed to have a nationality different to that which he had. Later, he asserted that he had not personally signed or filled in the application and therefore it did not satisfy the strict requirements of the Act.
[3] NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199
The Full Court rejected this contention. It held that the applicant in question, as a consequence of section 98, was fixed with responsibility for the false document. As such, the application was found to comply with the provisions of the Act and to be therefore valid. Rather, it was characterised as a false application which was in formal terms, a valid application.[4]
[4] See NAWZ (supra) at [18]
In SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [5] Bennett J said as follows:
“The applicant authorised and caused his migration agent to fill in the visa application on his behalf. While he did not specifically authorise the inclusion of incorrect or incomplete information, as in NAWZ, s 98 applies.”
[5] SZGJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 393 at [16]
In the current case, the Tribunal referred to Prodduturi & Kaur v Minister for Immigration[6] in which it was held that the effect of section 98 is that an applicant is taken to have filled out the application lodged on his or her behalf by an agent and its operation is not subject to any express or implied limitation in circumstances where the visa application is associated with, or the product of, unlawful conduct.
[6] See Prodduturi & Kaur v Minister for Immigration [2013] FCCA 1805
In the current case, the Tribunal found that the applicant was aware that his application had been made. This followed by his acknowledgement that he had engaged the services of S & S Migration to lodge a visa application on his behalf.
In addition, the Delegate’s decision records indicated that the applicant had contacted the Department seeking the transaction number for his visa application. On this basis, the Tribunal was satisfied that, through his agent, Mr Singh had either given or caused to be given information, regarding a Trades Recognition assessment skills assessment, which was false and misleading.
In these circumstances, the Tribunal found as follows:
“As a result, the Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the department, the Tribunal or a relevant assessing authority information that is false or misleading in a material particular in relation to his application for a Skilled (Provisional) (Class VC) visa.
Accordingly, the Tribunal finds that the applicant does not meet the requirements of PIC 4020(1).”[7]
[7] See casebook at page 64[40]-[41]
Thereafter, the Tribunal went on to consider whether the public interest criterion should be waived on the basis of compelling circumstances affecting the interests of Australia or an Australian citizen.
In determining this issue, the Tribunal considered both departmental guidelines and case authority. In particular, Thongpraphai v Minister for Immigration & Multicultural Affairs[8] in which O’Loughlin J considered that the phrase compelling or compassionate called for the occurrence of an event or events that were both far-reaching and most heavily persuasive.
[8] See Thongpraphai v Minister for Immigration & Multicultural Affairs [2000] FCA 1590
The relevant departmental guidelines made reference to Australia’s trade or business opportunities being adversely affected; the damaging of Australia’s relationship with a foreign government; and finally Australia missing out on a significant benefit that the visa applicant concerned could contribute to Australia’s business, economic, cultural or other development.
In this context, the Tribunal found as follows:
“The Tribunal has considered the fact that according to the visa application form lodged with the Department the applicant has purportedly undertaken and successfully completed studies in community welfare in Australia. However, there is no evidence to confirm this is, in fact, the case. Even if the Tribunal proceeds upon the basis that the applicant did complete such studies in Australia, there is little in the evidence to indicate that, as a result of the applicant’s completion of these studies, Australia would miss out on a significant business, economic, cultural or other benefit if he was not granted a subclass 485 visa to remain in Australia.
Consequently, given all the evidence before it, the Tribunal is not satisfied that these matters constitute compelling circumstances affecting the interests of Australia that would justify the grant of a subclass 485 visa to the applicant : paragraph 4020(4)(a).”[9]
[9] See casebook at pages 65 & 66 [51]-[52]
In addition, the Tribunal noted that the applicant had not identified any Australian or New Zealand citizen or Australian permanent resident whose interest would be affected if he were not granted the 485 visa in question. The Tribunal noted that the focus of paragraph 4020(4)(b) was not on any circumstances that might affect the applicant personally.
Finally, notwithstanding the matters surrounding the provision of misleading information and whether the applicant did or did not know of it, the Tribunal found that, in any event, the applicant had not satisfied the essential precondition for the grant of the visa in that he had provided no proof that his skills had been assessed as suitable by a relevant assessing authority. This was notwithstanding the invitation, proffered to him, pursuant to section 359A, to provide such information, notwithstanding the bogus nature of the initial skills recognition number.
In these circumstances, the Tribunal made the following finding of fact, on the basis of the evidence available to it:
“On the evidence available, the Tribunal finds that the applicant nominated the occupation of Community Worker which is a specified skilled occupation. For that occupation, the relevant assessing authority specified is TRA. After considering the information on the Department’s file that TRA had no record of supplying the applicant with a skills assessment, and in the absence of any other evidence from the applicant, the Tribunal is not satisfied that the applicant’s skill have been assessed as suitable for his nominated skilled occupation by the relevant assessing authority. The applicant therefore does not satisfy the requirements of cl.485.221(1) and, if follows, cl.485.221 as a whole.”[10]
[10] See casebook at page 67 [60]
The legal provisions applicable
Pursuant to section 476(1) of the Migration Act, the Federal Circuit Court has “the same original jurisdiction in relation to migration decisions as the High Court under section 75(v) of the Constitution”.
However, this jurisdiction is qualified by section 474 of the Act, which stipulates that a wide variety of decisions made under the Act, which are of an administrative nature are “privative clause decisions”.
The decision of the MRT, which the applicant seeks to review in this case is such a “privative clause decision” as defined by section 474 of the Act.
Pursuant to the section, privative clause decisions are final and conclusive and as such are not open to being challenged, appeal against, reviewed, quashed or called in question in any court and as a consequence, they are not to be subject to any prerogative writ.
However, the High Court has held that the provisions of section 474 do not prevent the review of decisions made by the Tribunal, which are affected by jurisdictional error of have been made in bad faith.[11]
[11] See Plaintiff 157/2002 (2003) 211 CLR 476
An administrative tribunal exceeds its powers and thus commits a 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 tribunal’s power.[12]
[12] See Craig v South Australia (1995) 184 CLR 163
Jurisdictional error is a complex concept. It does not entail a merits review or a re-hearing of the facts of the case concerned. In addition to the matters listed above, it can also encompass a breach of procedural fairness or a denial of natural justice, including bias or the appearance of bias.
Conclusions
I do not accept that the applicant has demonstrated any jurisdictional error in the determination reached by the Tribunal. In my view, the Tribunal fairly dealt with the visa application before it, including the issues surrounding the applicant’s allegation that he knew nothing of the actions of the fraudulent migration agent.
In my view, it was open to the Tribunal to conclude that the application was vitiated by the provision of fraudulent information. However, more significantly, the Tribunal was right to conclude that there was no evidence whatsoever that the applicant had undergone the required assessment of his skills, as required by the applicable visa application condition.
This was notwithstanding the fact that the applicant had been requested to provide such information on several occasions and had also been invited to appear before the Tribunal itself, an invitation which he declined to take up.
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.
Given the abolition of the Migration Review Tribunal, I will make an order that the second respondent be replaced with the Administrative Appeals Tribunal.
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 fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 23 October 2015
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