SINGH v Minister for Immigration

[2015] FCCA 1559

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1559

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – application for a Skilled (Provisional) (Class VC) visa – application for orders to be set aside and previous application reinstated – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.97(a), 359AA, 477(2)

Federal Circuit Court Rules 2001 (Cth), rr.16.05, 16.05(2)(a)

Minister for Immigration v Wu Shan Liang (1996) 158 CLR 259

Applicant: GAGANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2188 of 2014

Judgment of: Judge Hartnett

Hearing date: 23 April 2015

Delivered at: Melbourne

Delivered on: 9 June 2015

REPRESENTATION

Solicitors for the Applicant: In person

Counsel for the First Respondent: Mr Petrie

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The Application filed 3 March 2015 is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $1,984.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2188 of 2014

GAGANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This matter came before the Court on an Application in a Case filed by the Applicant on 4 March 2015. The Application is supported by an Affidavit sworn by the Applicant on 3 March 2015. The Applicant seeks that the Orders made on 4 February 2015, in earlier proceedings filed by him on 30 October 2014, be set aside and that his Application filed on 30 October 2014 be reinstated. The Applicant makes this application pursuant to r.16.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth) (‘the Rules’).

2. The earlier Application filed on 30 October 2014 sought an order pursuant to s.477(2) of the Migration Act 1958 (Cth) (‘the Act’) to enlarge time in respect of a putative application for judicial review of a decision of the Migration Review Tribunal (‘the Tribunal’) to affirm a Delegate of the First Respondent’s (‘the Delegate’) decision not to grant the Applicant a Skilled (Provisional) (Class VC) visa (‘the visa’). That application was listed for a directions hearing on 4 February 2015. The date of the directions hearing was engrossed on the ‘Notice of Filing and Hearing’ generated by the Court’s electronic filing system.

3. The Applicant failed to appear at the scheduled hearing.  In his absence, Registrar Allaway made the following orders:-

   “1. The application be dismissed.

   2. The applicant pay the first respondent’s costs of the proceeding, fixed in the sum of $1,367.”

4. The First Respondent opposes the orders sought by the Applicant in his Application in a Case filed 3 March 2015. 

5. The Applicant claims that he did not appear on 4 February 2015 because he was not aware of the hearing and thus could not attend.  He claimed further in his Affidavit sworn 3 March 2015, that whilst he noted in his copy of his Application, the date of hearing was 4 February 2015, that he received a letter dated 13 November 2014 from the lawyers acting on behalf of the First Respondent, and that he understood from the contents of that correspondence that his Application had not been accepted as it was not made within 35 days of the date of the Tribunal’s Decision, rendering the Tribunal Decision final and conclusive. The Applicant concluded, he claims, that his Application had been refused and therefore he did not attend the hearing on 4 February 2015. 

6. The First Respondent did not, at any time, indicate that the Applicant’s application was not proceeding.  The First Respondent relies upon an Affidavit filed in these proceedings and affirmed by Mr Vincenzo Murano on 15 April 2015.  Annexed to that Affidavit is firstly, a copy of a letter forwarded to the Applicant from the Solicitors for the First Respondent and dated 5 November 2014.  That correspondence notified the Applicant that Clayton Utz acted for the First and Second Respondents in the proceedings. By way of service, a Notice of Appearance was enclosed.  The letter provided clear and comprehensive advices to the Applicant as to how it was that he might obtain legal representation, what to do should he require an interpreter, and in particular, his requirement to appear at Court.  Under the heading “Requirement to appear at Court” the letter states as follows:-

   “As you are aware, this matter has been listed for a first Court date before the Federal Circuit Court at 10.00 am on 4 February 2015. 

   The Federal Circuit Court is located at 305 William Street, Melbourne, Victoria, 3000.  Unless the Court advises you otherwise, you will be required to attend this location for each Court appearance. 

   It is important that you, or someone representing you, appear in Court each time that this matter is listed for hearing. If you do not appear in Court at the date and time required, your application may be dismissed and you may be ordered to pay our client’s costs of the proceeding.

   It is your responsibility to ensure that you are aware of the time and place each time that this matter is to be heard.  You can find out what Court room this proceeding is to be heard in, by any one of the following methods: 

   ● by telephoning the Court, on [phone]; 

   ● by checking the notice board on the ground level of the Court;

   ● by checking the daily Court list, published on the Court’s website at and/or

   ● by checking the Commonwealth Courts Portal at

   If, on the day of your Court hearing, you are unable to locate the correct Court room, you should speak with a Court officer or attend the Federal Circuit Court Registry on level 7, as soon as you arrive at Court.”

7. Following the above correspondence, further correspondence was forwarded to the Applicant from the solicitors acting for the Minister of Immigration and Border Protection dated 13 November 2014.  That correspondence enclosed the Response filed by the First Respondent on 13 November 2014.  That Response relevantly stated:-

   “The first respondent opposes the application for an order to show cause filed in the Federal Circuit Court on 30 October 2014 (application) on the grounds that:

   1. The application was not made to the Court within 35 days of the date of the Migration Review Tribunal’s (Tribunal) decision dated 24 September 2014, pursuant to s.477(1) of the Migration Act 1958 (Cth) (Act).

   2. As required under s.477(2) of the Act, the applicant has not established that it is necessary in the interests of the administration of justice that the time for filing the application should be extended. …”

8. The Court finds the Applicant was aware of the hearing date scheduled for 4 February 2015.  Further, this date had been impressed upon him by correspondence to him of 5 November 2014, emanating from the solicitors for the First Respondent.

9. The Applicant claims that ground 1 of the Response caused him to think that his application had been refused.  Ground 1 of the Response was merely one of the grounds relied upon by the First Respondent. The covering correspondence of the First Respondent did not indicate to the Applicant that there was any change to the hearing date of 4 February 2015.  The Applicant could have accessed the Court’s website to obtain information regarding the proceeding generally, including all relevant hearing dates, or could have telephoned the Court or Solicitor acting on behalf of the First Respondent, Mr Murano, to clarify any matter he was confused about, or had a concern about.  Indeed, in Mr Murano’s correspondence of 13 November 2014 to the Applicant Mr Murano said:-

   “Please contact Vince Murano if you have any queries.”

10. The reasons put before the Court for the Applicant’s non-attendance on 4 February 2015 are not sufficient for this Court to exercise its discretion under r.16.05 of the Rules. The Application in a Case should be dismissed on this basis. Even if I were wrong about that, I find there is no arguable case or question to be tried in the putative substantive application and that it is not in the interests of the administration of justice for the Application to be reinstated. The Application in a Case should be dismissed with costs on those grounds for the following reasons.

History

1. The Applicant is a citizen of India.  He applied for the visa on 18 October 2010.  In the Visa Application Form, the Applicant stated that he had undertaken an International English Language Testing System (‘IELTS’) test in the 24 month period preceding the visa application, and had obtained “competent English”.  He provided a test reference number.  On 22 October 2010, the Applicant provided the Department of Immigration and Citizenship (as it then was) (‘the Department’) with the corresponding relevant IELTS test report form, pertaining to a test conducted on 4 September 2010 (TRF).

2. In response to a query made by the Department, International Development Program Education Proprietary Limited (IDP), Audit and Investigation unit for IELTS, informed the Department and on 9 December 2011, that the TRF had been forged, noting that the Applicant’s identity, as evidenced by the photograph on the TRF, did not match the identity of the person who sat the test, as evidenced by a photograph kept on file.  The Department was also advised that the Applicant’s test scores, as a result, would be amended to zero.  By letter dated 22 December 2011, the Department invited the Applicant to comment on the suspected fraudulent nature of the TRF, noting:-

   “Following a verification of the test report form you provided, it appears that another person, not you[,] undertook the test.

   Therefore the IELTS test report form you submitted to the Department is a bogus document containing information which is false and misleading.”

3. By letter dated 3 May 2012, the Department invited the Applicant to provide his comment within a period of 28 days in response to information which suggested that the Applicant had submitted a bogus document or information that was false or misleading in a material particular for the purposes of Public Interest Criterion (‘PIC 4020’). In particular, the Applicant was advised that IDP had provided information that:-

   “The … TRV [has] been forged.  The photograph … does not match with the photograph of the candidate who sat the test with us.”

4. By email dated 24 May 2012, the Applicant’s representative responded to the Department’s invitation, attaching a Statutory Declaration made by the Applicant.  Among other things, the Applicant denied that a person other than himself had sat the IELTS test. 

5. On 29 May 2012, the First Respondent, by his Delegate, refused to grant the visa.  On 12 June 2012, the Applicant applied to the Tribunal for merits review of the Delegate’s decision.

6. The Applicant appeared before the Tribunal on 14 August 2014 to give evidence and present arguments. The Applicant’s representative was also present at this hearing. Pursuant to s.359AA of the Act, during the course of the hearing, the Tribunal provided the Applicant with a copy of the photograph kept on file by IDP in respect of the person who sat the IELTS test on 4 September 2010. The Tribunal explained that this information, together with the information from IDP that the TRF had been forged, may lead the Tribunal to conclude that the Applicant did not sit the IELTS exam on 4 September 2010, and that he had therefore submitted a “bogus document” to the Department. If so, the Tribunal informed the Applicant that this would be the reason, or part of the reason, for affirming the Delegate’s decision. In response, the Applicant admitted that the photograph kept on file by IDP was not him, but maintained that he did, in fact, sit the test.

7. On 24 September 2014, the Tribunal affirmed the decision not to grant the visa.  In its Decision, the Tribunal, as correctly submitted by the First Respondent:-

   a)noted that, for the purpose of s.97(a) of the Act it reasonably suspected the TRF to be a “bogus document” on the basis that it had purported to have been, but was not, issued in respect of the Applicant;

   b)noted that it was not satisfied that there was “no evidence” that the Applicant had given, or caused to be given, a “bogus document” to the First Respondent.  The Tribunal therefore, found that the Applicant did not meet PIC 4020;

   c)considered the Applicant’s oral submissions regarding compassionate or compelling circumstances for the purposes of PIC 4020(4), being that he had not had an adverse police check, had not committed any fraud, had paid his taxes and that he had worked for four years in Australia, first at an Italian restaurant and then on a construction site.  The Tribunal found that these circumstances were not such as to constitute compassionate or compelling circumstances to warrant the requirements of PIC 4020(1) being waived; and

   d)found that the Applicant did not satisfy PIC 4020 and therefore did not satisfy Part 485.224 of Schedule 2 to the Regulations.The Tribunal therefore affirmed the decision not to grant the visa.

Consideration

1. A criterion for the grant of the visa was cl.485.224 of Schedule 2 to the Regulations, which required the Applicant to satisfy PIC 4020.  The Tribunal correctly identified compliance with this criterion as being in issue, and considered whether the Applicant met this criterion.  The Tribunal found, as a matter of fact, that the TRF submitted to the Department was a “bogus document” as defined in Regulation 1.03 of the Regulations for the purposes of PIC 4020, and therefore found the Applicant failed to satisfy PIC 4020(1).

2. The Tribunal went on to consider whether there were compassionate or compelling circumstances that would justify PIC 4020(1) being waived.  That was a question of fact for the Tribunal. The weight to be given to the relevant evidence was also a matter for the Tribunal.  The Tribunal was not persuaded that the Application of PIC 4020(1) ought to be waived.  Such a finding was open to it on the evidence before it.

3. There was nothing unreasonable or illogical in the findings of the Tribunal.  The fact that the Applicant disagrees with the factual findings of the Tribunal is not a matter which requires this Court to engage in merits review,[1] which is in any event impermissible. Each of the findings made by the Tribunal were open to it, on the evidence before it. 

   [1] Minister for Immigration v Wu Shan Liang (1996) 158 CLR 259.

4. No error of law attends the Tribunal’s decision. The Applicant was afforded procedural fairness and although the Applicant alleges he was not afforded procedural fairness, he failed to provide any particulars in respect of such an allegation. It is unfounded on an examination of the Tribunal’s decision.

5. The First Respondent seeks costs in the sum of $1,984.  I shall order that the Applicant meet those costs. 

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date: 9 June 2015