Singh v Minister for Immigration

[2015] FCCA 1123

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1123

Catchwords:
MIGRATION – Application for review of the decision of the Migration Review Tribunal – whether Tribunal failed to comply with s.359 and s.353 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.353, 359, 360, 476

Migration Regulations 1994 (Cth), Schedule 2, 4
Federal Circuit Court Rules 2001 (Cth)

Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169
Kaur v Minister for Immigration and Border Protection [2014] FCA 1276
Patel v Minister for Immigration and Border Protection [2015] FCAFC 22
Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592

Applicant: RAJINDER PAL SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1350 of 2014

Judgment of: Judge Nicholls

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

Applicant: In Person

Solicitors for the Respondents: Ms A Carr of DLA Piper Australia

ORDERS

1. The application made on 20 May 2014 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1350 of 2014

RAJINDER PAL SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. This is an application made by Mr Rajinder Pal Singh (“the applicant”) pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 20 May 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 23 April 2014 which affirmed the decision of the Minister’s delegate not to grant him a Skilled (Provisional) (Class VC) visa (“the visa”).

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background is relevant.

2. The applicant is a citizen of India (CB 26). He applied for the visa on 27 May 2009 (CB 1 to CB 36, including additional documents). He relevantly nominated the occupation of “cook” and confirmed that he had received a skills assessment from Trades Recognition Australia (“TRA”) (see CB 9 and CB 35 to CB 36). He was assisted in this application by a registered migration agent.

3. The applicant received correspondence from the delegate by letter dated 16 September 2013 (CB 96 to CB 100). He was invited to comment on, or respond to, his claim to have completed 900 hours of work experience while maintaining a full time study load (CB 97). Further, the letter invited the applicant to provide any compelling circumstances to justify a waiver of PIC 4020(1) of Schedule 4 to the Migration Regulations 1994 (Cth) (“the Regulations”).

4. The applicant provided a Statutory Declaration made on 19 September 2013 confirming his claim to have worked for 900 hours (CB 104) and provided a map indicating the travel time between his home address and workplace (CB 107).

5. The delegate refused the application on 12 December 2013. The delegate found that the applicant did not meet PIC 4020 and, therefore, did not satisfy the requirements of cl.487.228 of Schedule 2 to the Regulations (CB 109 to CB 117).

6. Relevantly, PIC 4020 is in the following terms:

   “(1)  There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)  the application for the visa; or

   (b) a visa that the applicant held in the period of 12 months before the application was made.

   2)  The Minister is satisfied that during the period:

   (a)  starting 3 years before the application was made; and

   (b)  ending when the Minister makes a decision to grant or refuse the application;

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (2A)  The applicant satisfies the Minister as to the applicant’s identity.

   (2B)  The Minister is satisfied that during the period:

   (a)  starting 10 years before the application was made; and

   (b)  ending when the Minister makes a decision to grant or refuse the application;

   neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

   (3)  To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4)  The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

   (a)  compelling circumstances that affect the interests of Australia; or

   (b)  compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

   justify the granting of the visa.

   (5)  In this clause:

   information that is false or misleading in a material particular means information that is:

   (a)  false or misleading at the time it is given; and

   (b)  relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

   Note: Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.

The Tribunal

1. The applicant applied for review of the delegate’s decision to the Tribunal on 13 December 2013 (CB 118 to CB 138). He continued to be assisted by a registered migration agent. The applicant attended a hearing before the Tribunal on 25 March 2014. He also provided further documents to the Tribunal, including statutory declarations from former work colleagues (see CB 152 and CB 161).

2. The Tribunal identified the issue in the matter before it as being ([4] at CB 170):

   “The issue before the Tribunal is whether the applicant meets PIC 4020 for the purpose of cl.487.228. That requires consideration of the following:

   - Has the applicant given, or caused to be given, a bogus document, or information that is false or misleading in material particular; and

   - If so, are there circumstances to waive that provision that justify the granting of the visa.”

3. The Tribunal affirmed the delegate’s decision on 23 April 2014. The Tribunal found that the applicant did not meet PIC 4020 of the Regulations, for the purposes of cl.487.228 of the Regulations. I note that, that criterion relates to the question as to whether the applicant has given, or caused to be given, a bogus document or information that is false or misleading in a material particular.

4. The Tribunal found the applicant had not “been truthful about his work experience” ([17] at CB 173). The Tribunal also found that the documents provided, and his evidence before the Tribunal, contained inconsistent information. In particular, the Tribunal was concerned about the lack of “probative and contemporaneous evidence of the applicant’s employment” ([17] at CB 173). The Tribunal did not find it “plausible that if the applicant is claiming work experience and his claims had been questioned by the delegate, the applicant would not consider that additional evidence could be provided” ([17] at CB 173).

5. In relation to the statutory declarations provided by former work colleagues, the Tribunal gave both declarations “no weight” as they were found not to be probative of the applicant’s claims (see [18] at CB 173 to [19] at CB 174).

6. The Tribunal found that the reference in the skills assessment application form, which the applicant had provided to the TRA, was false or misleading. As such, as the information was relevant to cl.487.223 of the Regulations, it found that the TRA assessment itself was a bogus document, within the meaning of s.97(c) of the Act (Interpretation: “bogus documents”). Ultimately, the Tribunal found that the applicant gave, or caused the bogus document to be given to the Minister, or an officer, and therefore did not satisfy PIC 4020(1) of the Regulations ([20] and [22] at CB 174).

7. Further, the Tribunal found that the applicant gave false or misleading information, regarding his work experience, on “form 1221” which accompanied his application, as the applicant had admitted that dates referred to there were “incorrect”. The Tribunal found that this material was false and misleading in a material particular because it was also relevant to cl.487.223 of the Regulations.

8. The Tribunal considered whether the requirements in PIC 4020(1) and (2) should be waived. It found that the applicant had not identified any “compelling circumstances” to waive the requirements and determined not to do so ([25] – [26] at CB 175).

Application Before the Court

1. The application before the Court contains the following grounds of review:

   “1. The Tribunal failed to comply with section 359 of the Migration Act.

   Particulars

   a. The Tribunal failed to invite the review applicant to give information in regards to the waiver of PIC4020.

   2. The Tribunal failed to comply with section 353 of the Migration Act.

   Particulars

   a. The comments of the Tribunal Member during the course of the hearing indicated bias against the review applicant.

   b. The Tribunal failed to consider the grounds for the waiver of PIC4020 which led to a decision which was unfair towards the review applicant.”

Before the Court

1. The Court made orders for the conduct of this case on 11 July 2014.  At that time, the applicant was represented by a firm of solicitors. I note that the applicant was given the opportunity by orders made on that date to file any amended application, and any evidence by way of affidavit, including any transcript of the Tribunal hearing.

2. The applicant appeared before the Court in person today. He was assisted by an interpreter in the Punjabi language. A “Notice of Withdrawal as Lawyer” was filed on 12 August 2014. The grounds of the application, filed before this date, appear to have been drafted, and “certified”, by a lawyer.

3. When given the opportunity to address the Court today, the applicant made the following statements. He did work as a cook. I understood that to mean that he worked as a cook for the “Copper Tiffin Restaurant”, at the time that was indicated in documents he provided to the Tribunal. In assessing his application for “occupation recognition”, the TRA had made “queries” about that employment.  He had provided evidence that he had worked as a “cook”.

Consideration

1. As I sought to explain to the applicant, the Court could not intervene to grant him the visa. If these statements were directed to some assertion that the Tribunal had made an error, in light of those matters he now raised, then on the material before the Court, the Tribunal’s relevant findings were all reasonably open to it to make on what was before it. In that circumstance, no legal error is revealed.

2. That the Tribunal disbelieved the applicant, and found that he had not met, or had breached, the provisions of PIC 4020, were findings of fact that were reasonably open to the Tribunal to make on what was before it. I could not see that anything that the applicant told the Court today was of assistance to him in revealing jurisdictional error on the part of the Tribunal.

3. Turning to the grounds of the application. In ground one, the applicant complains that the Tribunal did not meet s.359 of the Act because it did not invite him to provide information in regards to a waiver of PIC 4020 of the Regulations.

4. Section 359 of the Act is in the following terms:

   “359 Tribunal may seek information

   (1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

   (2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information.

   (3) If a written invitation under subsection (2) is given to a person other than the Secretary, the invitation must be given:

   (a) except where paragraph (b) applies—by one of the methods specified in section 379A; or

   (b) if the invitation is given to a person in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

   (4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B.”

5. As I said earlier, the application to the Court was drafted with the assistance of solicitors. A solicitor representing the applicant “certified” that there were reasonable grounds for believing that the application, including ground one, had reasonable prospects of success. It is difficult to accept this assertion, given that the ground misunderstands the importance of the word “may” as it appears in s.359(1) of the Act.

6. The importance of this is that s.359 of the Act does not oblige the Tribunal to invite an applicant to provide information. That misunderstands the purpose of s.359 of the Act. Section 359 is an avenue by which the Tribunal may obtain information. Whether the Tribunal proceeds pursuant to s.359 of the Act is a matter for it to determine. In short, therefore, the central proposition in the applicant’s ground cannot be made out in circumstances where there is no obligation on the Tribunal to issue such an invitation to the applicant.

7. It may be that the complaint the solicitor meant to convey by ground one was that the applicant should have been given the opportunity to comment, or give information to the Tribunal, about the waiver of PIC 4020. A number of things may be said.

8. First, the applicant would have been on notice, as a result of the delegate’s decision, that a live issue in the review before the Tribunal was whether or not his case came within PIC 4020.  Further, he would have been on notice as a result of the delegate’s decision, that if the Tribunal were to find, as the delegate did, that his circumstances came within PIC 4020, that it would be of advantage to him, in making out his case, to provide to the Tribunal submissions, or evidence, or information, as to why compelling circumstances existed such that PIC 4020 should be waived. 

9. Second, having regard to the applicant’s attendance at the hearing before the Tribunal, the applicant would have had the opportunity, noting also that he was represented by a registered migration agent,  to have provided any information, or have indicated that there was information to be provided, at that time. 

10. The Tribunal’s reasons for not exercising the waiver that is available under PIC 4020, is set out at [26] of its decision record (at CB 175). That is, that the applicant himself had not identified any relevant compelling circumstances, and further, that on what was before it, it could not be satisfied that such circumstances existed. In all the circumstances presented to the Court now, it was reasonably open to the Tribunal to find that compelling circumstances did not exist. 

11. I also agree with the Minister’s submission that the Tribunal was correct to set out that PIC 4020(1) of the Regulations required the applicant not to provide bogus documents. This applied whether or not the document was provided knowingly or unwittingly (Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169 at [28], 36] and [50]). The Tribunal considered whether the TRA assessment had the “necessary quality of purposeful falsity” and whether the applicant had provided information to the TRA that he knew to be false or misleading (Kaur v Minister for Immigration and Border Protection [2014] FCA 1276 at [57] per Barker J).

12. I note what was said in Patel v Minister for Immigration and Border Protection [2015] FCAFC 22 by Buchanan J, at [7] of that decision (Edmonds J agreeing at [1]):

    “In Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; (2014) 220 FCR 169 (‘Trivedi’), a Full Court decided that ‘an element of fraud or deception is necessary in order to attract the operation of PIC 4020’ (see at [33]) and ‘that PIC 4020 is directed to information or documents which are purposely untrue’ (see at [49]). It was also held that it was not necessary, in order to engage the operation of PIC 4020, that a visa applicant ‘was knowing or complicit in the deceptive character of the information ... furnished’ (see at [43], [45], [50], [52]).”

13. In my view, the Tribunal’s decision record reveals that the Tribunal did address the question of whether an element of “fraud” or “deception” was involved.  In this regard, the Tribunal found that the applicant was not a credible witness, and that he had provided to the TRA, and to the Minister, information that was false, or misleading, in a material particular.  In all, ground one is not made out. 

14. Ground two of the application contains two separate complaints purportedly linked to s.353 of the Act. First, that the Tribunal was biased against the applicant. Second, that the Tribunal failed to consider the grounds for the waiver of PIC 4020 of the Regulations.

15. As a matter of context, as the Minister submitted, the High Court in Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332 at [16] per French CJ found that s.353 of the Act does not import common law procedural fairness requirements, and, therefore, does not give grounds for jurisdictional error in circumstances applicable to the current case.

16. In relation to the first complaint, I note that the applicant sent correspondence to the Tribunal by facsimile on 25 March 2014, complaining of the manner in which the Tribunal conducted the hearing with him (CB 164). He received a response from the Tribunal’s Principal Member on 22 April 2014 (CB 165).

17. The tests for bias, or the apprehension of bias, are well settled (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507 (“Jia Legeng”), SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 (“Ex Parte H”)). An allegation of actual bias must be “distinctly made and clearly proven” (Jia Legeng at [69] and [127]). In relation to the apprehension of bias, the test is whether the well informed lay observer might reasonably apprehend that the Tribunal did not bring an open mind to the conduct of the review, including at the hearing (Ex Parte H). In essence, the question is whether the Tribunal brought an open mind to the proceedings. That is, that its mind was not closed to the applicant’s evidence, arguments, and submissions. 

18. An allegation of bias is a very serious allegation of legal error, in that it challenges the very integrity of the Tribunal member.

19. As stated above, the applicant was for some time represented by solicitors in these proceedings. He has not provided any evidence to the Court of the Tribunal hearing. At best there are two pieces of possible relevant evidence before the Court. First, the Tribunal’s decision record. However, it is a rare case in which bias can be made out in these circumstances (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J). In this case, it must be said, there is nothing in that decision record that would indicate, let alone prove, that the Tribunal member did not bring an open mind to the proceedings and was not open to persuasion.

1. The other relevant evidence before the Court is the applicant’s letter to the Tribunal of 25 March 2014 (CB 164). This must be seen as the applicant’s complaint of what he said occurred at the hearing.  It must be seen, also, in light of the Principal Member’s response, which rejected the allegations made in that letter (CB 165).

2. While it may, at best for the applicant, be said that his letter could be seen as making some allegation of bias on the part of the Tribunal, the absence of any other evidence before the Court, including evidence of a transcript of the Tribunal hearing, leaves the complaint in a state such that bias cannot be clearly proven.

3. I should also note that to the extent the reference to s.353 of the Act is directed to the Tribunal providing a fair mechanism of review, there is no evidence before the Court to reveal, let alone establish, that the Tribunal acted unfairly in relation to the matters of the hearing. The applicant was invited to a hearing, pursuant to s.360 of the Act, and attended the hearing. On the evidence before the Court he was given the opportunity to address the issues in relation to the review (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 231 ALR 592).

4. The second particular to that ground asserts that the Tribunal failed to consider the grounds for the waiver of PIC 4020. This cannot be made out at a factual level. A plain reading of the Tribunal’s decision record (at [25] - [26] at CB 175), reveals it addressed the question as to whether it was satisfied that there were any compelling circumstances to waive PIC 4020 of the Regulations. It considered whether, as the applicant had not provided any submissions, any other circumstances arose from the material before it. It found that the circumstances did not give rise to any waiver.

5. I cannot see error in the Tribunal’s approach here. It must be said that beyond the assertion in the ground, particular (b) to ground two remained otherwise unexplained before the Court. Ground two is also not made out. 

Conclusion

1. Therefore, neither of the two grounds of the application to the Court reveal jurisdictional error on the part of the Tribunal.  Nothing that the applicant was able to say to the Court today suggested that any other jurisdictional error may have been made by the Tribunal.  In these circumstances, it is appropriate that the application to the Court be dismissed. I will make that order accordingly.

Costs

1. The Minister has sought an order the applicant to pay for his costs in this matter, fixed in the sum of $ 4800.00. It is appropriate, in my view, that an order for costs be made in this matter.

2. The applicant has put three points against the making of the order.  The first is that he does not have work rights in this country. I understood that to be an assertion that he does not have the capacity to generate funds to pay costs.

3. Second, he said that he has financial hardship. I have no reason not to accept the applicant’s statement.  However, it is the case that an absence of work rights, and financial hardship, are not matters of such character that would cause the Court not to make the order that the Minister seeks, in the usual way.  As is often said, impecuniosity is not a sufficient reason for the order not to be made.

4. The third point made by the applicant was that his legal representatives gave him no information regarding the possibility that he may have to pay costs.  I do not have that assertion before me in any evidentiary context.  However, what I do have before me is the Minister’s formal Response in these proceedings. That is, the Response to the application filed on 29 May 2014. 

5. There is nothing before the Court to suggest that this was not served on the applicant’s solicitors. At [3] of the Response, the Minister plainly states that he opposes the substantive application and will seek costs if the application is ultimately dismissed. In that regard, the Minister put the applicant on notice, through his solicitors, that costs would be an issue if the Minister was ultimately successful in these proceedings. 

6. It is the case that some aspects of the solicitor’s conduct in this matter raise some cause for comment. For example, as I noted earlier in my judgment, the lawyer who represented the applicant in this matter certified that there were reasonable grounds for believing that the migration litigation had a reasonable prospect of success. Given the very clear misunderstanding of the terms of s.359 of the Act, it is difficult to see how the lawyer certified that such a ground had any reasonable prospects of success before the Court.

7. Given what was in the Tribunal’s decision record, the same can be said of particular (b) to ground two  In relation to particular (a) to ground two, while the legal representatives acted for the applicant, no transcript of the hearing, or evidence, was provided to support particular (a) to ground two. 

8. In short, the applicant says that his legal representatives gave him no information regarding costs. What is presented is sufficient to say that the legal representative should have taken greater care in the drafting of the grounds of the application. 

9. There are two points that arise from what I have just said.  The first is that any failure on the part of the lawyers to properly advise their client, in relation to the possibility of costs, particularly in circumstances where the Minister, at an early stage of these proceedings, squarely raised the matter of costs, is not a factor that would argue against the making of the costs order. This is particularly so where there is no evidence before the Court to support any assertion of such failure.

10. The second point is that it is available to the applicant to consider whether he wishes to pursue with the appropriate authorities, any lack, or omission, that he says may have been caused by the inaction of his solicitors. In that, it may also be a matter for the applicant as to whether he wishes to pursue with the appropriate authorities the advice he received, given the obvious, and clear, deficiency in at least one of the grounds of the application. However, none of that, in my view, rises to argue against the making of the costs order.  I will make the order.

11. As to the amount, the amount that the Minister seeks is within the indicative amount set out in the relevant schedule to the Rules of this Court (Federal Circuit Court Rules 2001 (Cth)). I am also otherwise satisfied, having regard to what is on the Court’s file as to the work that the Minister’s solicitors have done, that the amount sought is a reasonable amount.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  1 May 2015