Singh v Minister for Immigration

[2015] FCCA 2812

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2812

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Skilled (Residence) (Class VB) visa – bogus document – no jurisdictional error – application dismissed.

PRACTICE AND PROCEDURE – Application for adjournment – no utility – application refused.

Legislation:

Migration Act 1958 (Cth), s.476

Migration Regulations 1994, cl.885.224, PIC4020

First Applicant: PARAMJEET SINGH

Second Applicant: RAMANDEEP KAUR

Third Applicant: PRABHLEEN KAUR

Fourth Applicant: PRABHNOOR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1446 of 2015

Judgment of: Judge Street

Hearing date: 20 October 2015

Date of Last Submission: 20 October 2015

Delivered at: Sydney

Delivered on: 20 October 2015

REPRESENTATION

The applicants appeared in person

Counsel for the Respondents: Ms R Francois

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application and the amended application are dismissed.

2. The first and second applicants pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1446 of 2015

PARAMJEET SINGH

First Applicant

RAMANDEEP KAUR

Second Applicant

PRABHLEEN KAUR

Third Applicant

PRABHNOOR SINGH

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 30 April 2015, affirming a decision of the delegate not to grant the applicants Skilled (Residence) (Class VB) visas. The first and second applicants are nationals of India, and the first applicant lodged the application on 26 July 2009 for a general Skilled migration visa.

2. In the application the first applicant identified his nominated occupation as cook and provided an assessing authority skills assessment dated 9 April 2009.  That Trades Recognition Australia assessment was relevant to the points accumulated for an occupation in terms of the making of the application for a visa.  The first applicant also identified his past employment, alleging he had worked with New Bombay Fusion as a cook from 1 June 2008 to 30 June 2009, identifying the description of the duties that he had provided, which relevantly did not include deliveries and distribution of leaflets.

3. The first applicant provided a purported certification from Bombay Fusion dated 30 June 2008 that identified a residential address that was clearly inconsistent with the residential address identified by the applicant on Part J of a personal particulars for assessment, including character assessment.  The certification alleged that the first applicant had been offered a position to work as a Tandoori cook as a paid employee, commencing from 1 July 2008, and refers to the kit that the first applicant was required to bring with him.

4. There is a further document from the same entity, but inconsistently purports to assert that the first applicant had been employed by Bombay Fusion as a cook from 7 January 2008 to 30 September 2008.  That document is dated 1 April 2009.  A further document was provided from another restaurant, which purports to be a work reference letter dated 15 July 2009, and says (CB 108):

   [The applicant] has been employed as a cook from 1^st October 2008 up to date.  He has completed 800 hours of work experience so far.

5. A further document relating to Bombay Fusion was provided by the first applicant, which purports to identify he had been a cook and employed as such from 1 June 2008 till the date, and the document was dated 24 March 2009.  That document asserted the first applicant had completed a total of 900 hours of commercial training.  On 26 August 2014 the first applicant was sent a letter inviting comment on information that was provided in relation to the application and an allegation that the reference and 900 hours work experience by New Bombay Fusion to obtain the TRA assessment was a bogus document. 

6. That invitation identified that the investigation that had been conducted  and that the owner of the business had confirmed that the first applicant was employed at the business, but his duties were not that of a cook, and that activities involved distribution of leaflets and delivery of food orders.  The delegate found that the criteria for the grant of a skilled independent visa were not met by the first applicant, and referred to the invitation to comment, and the responses received and said: 

   I find that you have not provided sufficient, relevant and credible evidence that you were employed at New Bombay Fusion as a cook with the duties listed in the reference that you provided. 

   As such, I find that you provided false and misleading information to TRA in order to obtain a successful skills assessment.  Therefore, the skills assessment letter you provided in support of your visa application is a bogus document. 

   …I find that you do not satisfy the PIC 4020(1).

7. The delegate found that the first applicant did not meet the requirements of cl.885.224 for the grant of a Skilled employment visa. The delegate found that none of the applicants were able to satisfy the primary criteria in relation to the regulations for the grant of a Skilled Independent visa. By a letter, dated 20 March 2015, the first applicant was invited to attend a hearing before the Tribunal in accordance with the statutory regime to be held on 13 April 2015.

8. At the hearing the Tribunal put to the first applicant the information that had been provided by a Mr Prithvi Singh during an interview now summarised in the investigation report which was relevant to the first applicant and the allegation of providing a bogus document.  The Tribunal identified the information that it considered adverse to the first applicant’s claims during the hearing and explained the relevance to the first applicant.  The first applicant indicated that he wanted some time to respond and the Tribunal allowed a further week to provide submissions or any other material relevant to the issue.

9. The Tribunal identified the period of time that had elapsed since the making of the application and the conduct of the hearing held on 13 April 2015 at which the applicant appeared to give evidence and present arguments.  The Tribunal indicated that it considered a week was appropriate in the circumstances to allow sufficient time for the first applicant to respond and the Tribunal did receive further documents that appeared to be relevant to the PIC4020(4) waiver issue.  I note the first applicant first travelled to Australia as the holder of a student visa in March 2007, and relevantly the Tribunal held:

   32. The applicant claimed that he did the required work experience as a cook. However. The Tribunal has significant concerns about that claim. The Tribunal accepts that the applicant was employed at the restaurants given the owner’s responses during the interview.  However, the evidence that was submitted to the Depa1tment to support his claim of 900 hours' work experience as a cook is problematic. The letters purportedly from the restaurant(s) are internally inconsistent, with different start dates of employment. The payslips for New Bombay Fusion and Indioz dated from 7 July 2008 to 18 March 2009 all indicate that the applicant's address was 63 Best Road in Seven Hills; an address which, according to the Form 80 he completed with his wife, he did not begin living at until April 2009. This suggests to the Tribunal that the payslips were not issued on the dates that appear on the payslips but at a later time and raises doubts as to their authenticity. The applicant's explanation regarding the address appearing on his payslips was unconvincing. It further considers that the PAYG payment summaries that were presented as evidence of his employment are not documents which assist with determining the applicant's position or type of work carried out. As the critical issue is whether his claimed 900 hours' work experience as a Cook is t1ue, his employment at New Bom1bay Fusion and Indioz restaurants of itself is not evidence of the type or work undertaken and the number of hours completed. The Tribunal places significant weight on the information given during Mr Prithvi Singh's interview as to the nature of the work undertaken by the applicant. It is not persuaded by the applicant's evidence at the hearing or the documents provided that he did undertake work experience as a cook at New Bo1nbay Fusion and/or Indioz restaurants.

   33. Having considered the information presented, the Tribunal does not accept that the applicant did undertake the duties of a cook for 900 hours at New Bombay Fusion and/or Indioz restaurants. It has thus formed the view that the copy of the applicant's work reference letter which was given to TRA contains false and misleading information as to the nature of the applicant's work at New Bombay Fusion. The false statements were that the applicant had 900 hours' work experience as a cook and carried out cooking related duties. The Tribunal finds that the skills assessment of 16 April 2009 (reference or receipt number of

   TRA09/12323885 I) from TRA was obtained because of a false or misleading statement. It is not relevant who submitted the application to TRA and provided the letter. The use of a letter containing a false statement to obtain a successful skills assessment for a visa clearly involves fraud and deception. The Tribunal finds that the TRA skills assessment is a bogus document, being a document which the Tribunal reasonably suspects was obtained because of a false or misleading statement, whether or not made knowingly.

   34. The Tribunal further finds that the applicant gave a copy of this TRA skills assessment to an officer of the department or the Minister when seeking the Subclass 885 visa the subject of this review.

   35. There is thus evidence before the Tribunal that the applicant has given, or caused to be given, to an officer, or Minister, a 'bogus document' in relation to his application for the visa. It finds that the applicant does not satisfy PIC 4020(1 )(a) in relation to the 'TRA skills assessment given for his application.

10. The Tribunal then turned to the issue of waiver of PIC4020 and concluded that it was not satisfied there were compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa. It is in those circumstances the Tribunal found that the applicants did not satisfy PIC4020 for the purpose of cl.885.224, and affirmed the decision of the delegate.

11. The grounds of the application are as follows:

    Application

    l. The tribunal made jurisdictional error without looking facts.

    2. The tribunal made decesion solely based on the intrviews conducted and made no further appointment with the owner of the restaurant.

    3. They overlooked the documents which i provided to satisfy the members of MRT.

    4. Applicants claim that TRA Australia given him a succesful review of his application which was based on the letterhead of the restaurant which was signed by the owner of restaurant.

    5. Applicant claims that False and misleading information was given by restaurant owner not by applicant.

    6. As MRT decided that the documents provided to TRA were false and misleading but fails to ask the owner of the restaurant that why did he sign the documents on the first place if it was false and misleading .

    7. Appelant claim law is misplaced on him. Because PIC 40201(1) deliberately imposed on him.

12. The applicant also relied upon an amended application as follows:

    Amended Application

    1. TRA is relevant Assessing Authority for the purpose of Migration Act 1994 2. The application of criterion 4020 at the time the relavant information in relation to skills assesement was provided.

    3. The applicant satisfy all criterio set out by the law and provided all genuine information.

    4. The evidence was provided by applicant was signed by prithiv Sing himself than how come he change his statement during his interview with DEEWR.

    5. Mr. Prithiv Singh is not reliable person to trust on him because he is bed character person.

    6. To many worker are working in his restaurant so how could he remember all this people wht job who is doing.

    7. And on page 339 (Green Book) he mention only two lines that applicant was doing leaflets and delivery. He deliberately did this to spoil future of applicant.

    8. Prithiv Singh himself is confused with all those who working in resataurant on page 361 he said he is doing kitchen hand work. Everything he said in this interview was not consider because this men cannot be trusted.

    9. I was working has a cook but he spoil my future. i am truth full witness .

    10. Mr. Prithiv singh took money from those who working in restaurant and he also ask me for money but i didnt give him. so he made this statement in this interview that i m not working as cook and working different work.

    11. On page No 3 55(green book) he mentioned that he borrow money from employ. he also force me to gave him money. But i simple said that i dont have it.

    12. Hournable Court cannot overlook all this facts whether Mr.Prithiv Singh is correct or me. I request to court that they call to Mr. Prthiv Singh and examine him because i work there and work as cook.

    13. Its jursidictional error in the decesion made by department and wrongfully assesed my case and impose PIC 4020.1 appeal to court give me justice.

    14. Citierio 4020 shall be waive and remerit this matter in MRT and consider my application

    Fundamental Issue:-

    1) Applicant claim he made geniunue application.

    2) I came on studnet visa in 2007 and did complete my studies and work experience.

    3) Applicant claim nature of justice was not deliverd in my matter and wronfully assesed by delagates and MRT. The procedural fairness hast been given in my matter.

    4 ) criterion 4020 ( 1) the applicant claim he did not give any false information to Delagates nor to any assesing authority.

    5) Prthiv singh make a false statement that i am doing diffemt work but i work as cook and he signed the letter for me.

    6) Applicant claim that Mr. prthiv Singh gave this interview in 2010 than why Department of Immigation did not contact me and gave me this copy so i can find out Mr Prithiv Singh and bring him to table and verify his claim that whatever he said during this interview was misguiding and why he change his statement. that i did not signed any letter for applicant.

    7) Applicant satisfy all criterio realted to his application under rule cl.885 .. 224

    social issues:-

    I) The length of stay in Australia should be consider by Hounrable Court.

    2) I have 2 children born in Australia and my daughter start schooling next year.This will be affected to my children on their future.

    3) All my relatives and family friends are here they support me during this period and they also came with my in MRT and also reply to member to gave me visa. 

    4) From last 8 years I residing in Australia and didnt do any wrong in this country.

13. In the original application, there is no substance in relation to ground 1.  It is clear the Tribunal referred to the facts, and ground 1 is, in essence, an impermissible challenge to the adverse findings of fact.  Ground 2 does not accurately reflect the adverse findings made by the Tribunal, and there is no duty upon the Tribunal to make further appointments with the owner of the restaurant, and ground 2 fails to make out any jurisdictional error.

14. In relation to ground 3 there are no documents identified that the Tribunal has failed to have regard to, and ground 3 fails to make out any jurisdictional error.  In relation to ground 4, this is in substance an endeavour to cavil with the adverse findings of the Tribunal and does not identify any jurisdictional error.  Ground 5 seeks to suggest that the false and misleading document was created by the owner and not by the applicant, and fails to identify any jurisdictional error.  Ground 6 seeks to cavil with the absence of further information from the owner as to the signing of a false and misleading document and, again, fails to identify any jurisdictional error.

15. In relation to ground 7, the Tribunal correctly applied cl.885.224, Schedule 2 to the Migration Regulations 1994, and Public Interest Criteria 4020.  No jurisdictional error is made out by ground 7.  The amended application was said by the applicant to be in addition to and in expansion upon his earlier grounds of application.  There are three sections to the amended application.  The first 14 paragraphs appear under the heading Grounds of Application, and nothing in those 14 paragraphs identifies any jurisdictional error. Rather, in those paragraphs the applicant seeks to cavil with the adverse findings or asserts as a matter of conclusion that there was jurisdictional error made by the department and wrongfully applying PIC4020. The adverse findings by the Tribunal were clearly open.

16. It is clear that the Tribunal was required under the regulations to apply PIC4020, and nothing said by the applicant from the bar table identifies any arguable jurisdictional error in relation to the first 14 paragraphs under the heading of grounds of application in the amended application.  There are seven paragraphs under a heading Fundamental Issue.  None of the seven paragraphs identify any proper jurisdictional error.  The assertion of a want of natural justice or denial of procedural fairness is a bare allegation, and none of the matters referred to give rise to any substance in those allegations.  Rather, the applicant again seeks to cavil with the adverse findings.

17. This Court does not have jurisdiction to revisit the merits of the matter or to make fresh findings of fact.  The adverse findings by the Tribunal were clearly open, and the Tribunal complied with the statutory regime and carry out a review.  Nothing said in the seven paragraphs under the Fundamental Issue identify any jurisdictional error.  The four paragraphs under the heading Social Issues fail to identify anything that constitute a jurisdictional error.  Accordingly, none of the original grounds of application in the first application, nor the content in the amended application identify any jurisdictional error.

18. The applicant, from the bar table, referred to the inability to find the owner.  However, this does not make out any jurisdictional error and does not identify any want of procedural fairness by the Tribunal.  The applicant in the course of the hearing sought an adjournment for the purpose of seeking to have discussions with another lawyer.  The adjournment application was opposed.  Other than the amended application document that was, in part, a purported expansion of grounds and, in part, purported submission no other document was filed by the applicant in accordance with the directions made on 9 July 2015 by the applicant.

19. I am not satisfied that there would be any utility in granting an adjournment, and that an adjournment would be only likely to unnecessarily increase the costs of the respective parties and utilise limited Court time.  The applicant was asked as to whether he had endeavoured to see a lawyer beforehand, and conveyed that he was not satisfied with the response he had received to date.  There is no reason why this Court should be satisfied that any adjournment would place the applicant in any different position on the next occasion.

20. For all of these reasons the Court is satisfied there is no utility in granting an adjournment.  For the above reasons, the application and the amended application fail to disclose any jurisdictional error.  The application and the amended application are dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  23 October 2015