SINGH v Minister for Immigration

[2014] FCCA 2070

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2070

Catchwords:
MIGRATION – Review of Migration Review Tribunal – Skilled (Provisional) (Class VC) visa – application for extension of time – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.351, 477, 477(3)(b)

Migration Regulations 1994 (Cth), Sch 2, cls.485.221, 485.224, Sch 4. cl.4020

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344
Sran v Minister for Immigration and Anor [2014] FCCA 37
SZNYE v Minister for Immigration and Citizenship [2010] FCA 500
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
Vu v Minister for Immigration and Citizenship (2008) 101 ALD 454

Applicant: GURONKAR SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2006 of 2013

Judgment of: Judge Hartnett

Hearing date: 3 September 2014

Delivered at: Melbourne

Delivered on: 24 September 2014

REPRESENTATION

The Applicant: In Person

Counsel for the respondents: Mr Rebikoff

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. Pursuant to s.477(2) of the Migration Act 1958 (Cth) the application for an extension of time is not granted.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2006 of 2013

GURONKAR SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced upon the Applicant filing an Application on 21 November 2013.  In support of that Application, the Applicant filed an Affidavit sworn by him on 21 November 2013. 

2. The Application of 21 November 2013 contained no proper grounds of review of the relevant decision of the Migration Review Tribunal (‘the Tribunal’) dated 30 May 2013. Further, the application appeared to be directed to a review of a decision of the First Respondent. The Applicant noted the name of the decision-maker as Helen Santaltzis and the date of the decision as 15 November 2013. The Applicant claimed, in his grounds of application, to be not satisfied with the “Immigration Decision and Migration Review Tribunal”. He sought that the Court review his file number ADF 2013/20656, which was refused on 15 November 2013. In the supporting Affidavit filed 21 November 2013, the Applicant annexed correspondence to him dated 15 November 2013, signed by Helen Santaltzis, Assistant Director, Ministerial Intervention Victoria, Department of Immigration and Border Protection. That correspondence advised the Applicant of the outcome of his request for ministerial intervention under s.351 of the Migration Act 1958 (Cth) (‘the Act’).

3. That correspondence provided, in part, as follows:-

   “The provisions of the Act that confer personal non-compellable powers on the minister are able to be exercised by any minister appointed as a portfolio minister under section 64 of the Australian Constitution. The Assistant Minister for Immigration and Border Protection is a minister appointed under section 64 of the Constitution and is therefore able to exercise the minister's public interest powers.

   The Assistant Minister for Immigration and Border Protection, Senator the Hon Michaelia Cash has personally considered your case and has decided that it would not be in the public interest to intervene. The assistant minister has not exercised their power under section 351 of the Act in your case.

   Our records show that your Bridging E visa will expire on 18 November 2013.  As you have no further matters before the department, you are expected to depart Australia as soon as practicable.  Enclosed is a fact sheet which contains information about choosing to leave Australia.”

4. Thereafter, the Applicant filed an Amended Application on 19 December 2013. It is this application that the Court has before it for judicial determination. The time limit for the making of an application for review of the Tribunal’s decision expired on 4 July 2013. The Applicant thus requires an extension of time under s.477 of the Act to bring this application. In respect of his application for extension of time, the Applicant provided the following grounds:-

   “1)  When MRT Refuse my application against my G.S.M. visa at that time I went to ministry intervention and was waiting for the decision.

   2)  For the extension of time I have attached the copy of ministry decision.”

5. The grounds of the application are stated as follows:-

   “1)   I request to the Court to review my G.S.M. visa application that I applied on 31^st of May 2011.

   2)  On the hearing date of M.R.T. I had represented all my documents to support my case even after that I had refuse decision.”

6. By the Amended Application, the Applicant seeks review of a decision of the Tribunal dated 30 May 2013.  The Tribunal decision affirmed a decision of a delegate of the First Respondent not to grant the Applicant a Skilled (Provisional) (Class VC) Subclass 485 (Skilled-Graduate) visa. 

7. The First Respondent filed a Response to the application on 7 March 2014, seeking that it be dismissed and that the Applicant pay the First Respondent’s costs of the proceeding.  The ground stated in the Response was that the decision under review was not affected by jurisdictional error. 

8. On 5 February 2014, Registrar Caporale made Orders by consent, which included order 3 (as follows):-

   “3. By 30 May 2014 the Applicant file and serve:

   3.1a further affidavit as to the reasons for delay in filing the application for review, if any;

   3.2an amended application with proper particulars of the grounds of the application;

   3.3    a supplementary Court Book, if any; and

   3.4    written submissions”

9. The Applicant has not complied with the above order and has filed no further amended application with proper particulars of the grounds of the application, nor an affidavit as to the reasons for delay in the filing of the application for review. 

Background

1. The Applicant is a citizen of India who arrived in Australia on 7 January 2009 as the holder of a Temporary (Vocational Education and Training Sector) Subclass 572 Student visa valid to 1 June 2011.  On 31 May 2011, an application for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled-Graduate) visa (‘the visa’) was lodged electronically on behalf of the Applicant. 

2. It was a criterion for the grant of the visa that the skills of the Applicant had been assessed by the relevant assessing authority as suitable for the Applicant’s nominated skilled occupation.[1]

   [1] Migration Regulations 1994 (Cth) sch 2 cl 485.221.

3. The Application filed on behalf of the Applicant stated that the Applicant’s skills had been assessed on 23 April 2010 by Trades Recognition Australia (‘TRA’) as suitable for the occupation of automotive electrician and provided a reference number in relation to that skills assessment. 

4. On 17 February 2012, a delegate of the First Respondent wrote to the Applicant to the email address specified in the visa application form and invited the Applicant to comment on information received by the Department of Immigration and Citizenship (as it then was) (‘the Department’) to the effect that TRA had no reference of providing the skills assessment nominated in the application (or, indeed, any skills assessment) to the Applicant.  No response to this notification of adverse information was received by the Department.

5. On 28 March 2012, a delegate of the First Respondent refused the visa application on the basis that there was evidence the Applicant had provided information that was false or misleading in a material particular in relation to the visa application and therefore, the Applicant did not satisfy Public Interest Criterion 4020 (‘Public Interest Criterion 4020’). [2]

   [2] Migration Regulations 1994 (Cth) sch 4 cl 4020.

6. On 17 April 2012, the Applicant lodged an application for review of the delegate’s decision with the Tribunal.  On the 24 May 2013, the Applicant appeared before the Tribunal to give evidence and present arguments in relation to its review. 

7. On 30 May 2013, the Tribunal affirmed the decision not to grant the visa to the Applicant. 

8. As noted above, the Amended Application of the Applicant filed 19 December 2013, was filed more than five months after the time limit for the making of an application for review of the Tribunal’s decision under s.477(3)(b) of the Act. In considering whether to extend the time for the making of the Application, the matters the Court looks to as relevant considerations are:-

   a)the extent of the delay;

   b)the explanation for the delay;

   c)the prejudice to the respondent if the Court were to grant an extension; and

   d)the merits of the application.[3]

   [3] Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment (1984) 3 FCR 344 at 348 to 349.

9. There was significant delay by the Applicant in the bringing of his application. The Applicant states that the explanation for such delay is that he was waiting for the outcome of his request for ministerial intervention under s.351 of the Act. This, as submitted by counsel for the First Respondent, is not justification sufficient for a failure to comply with the time deadlines imposed in the legislation for judicial review.[4] 

   [4] Vu v Minister for Immigration and Citizenship (2008) 101 ALD 454 at [29].

10. The Applicant provides no other explanation for this five month delay.  He does not put any evidence before the Court to suggest that he was unaware he could seek judicial review of the Tribunal’s decision before inviting the Minister of Immigration and Citizenship (as he then was) (‘the Minister’) to exercise his discretion, or that he did not know the time limit on the making of an application for judicial review.[5] 

    [5] SZNYE v Minister for Immigration and Citizenship [2010] FCA 500 at [8].

11. Whilst the First Respondent accepts that there is no prejudice to him if the Court were to grant an extension of time, the merits of the application are such that they do not justify the costs and inconvenience of granting an extension of time in circumstances where the Applicant has no prospect of success.

Consideration

1. As correctly submitted by counsel for the First Respondent, the Applicant has not sought to identify any error in the decision of the Tribunal or advance any substantive grounds of judicial review.  The only ground of review identified in the Amended Application filed 19 December 2013 is that:-

   “2) On the hearing date of M.R.T. I had represented all my documents to support my case even after that I had refuse decision.”

   This statement does not disclose any error which might be capable of characterisation as a jurisdictional error and, indeed, no jurisdictional error is apparent on the face of the Tribunal’s decision. The decision was made by the Tribunal on the basis of the evidence before it.

The Tribunal Hearing

1. At the hearing, the Applicant gave evidence that his visa application had been completed by a migration agent on his behalf, even though the visa application form stated that the Applicant had not received any assistance in completing the form.  The Applicant said he paid the migration agent $1,500 to prepare the visa application for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled-Graduate) visa based on the documentation provided by the Applicant to him, and the Applicant’s request that he lodge the visa application on his behalf. 

2. The Applicant claimed to not have seen the completed visa application form before it was lodged because the migration agent failed to provide him with a copy.  The Applicant confirmed the information regarding the skills assessment, said to have been provided by TRA, was incorrect, but said that he was not aware the visa application contained this information, and that he had not instructed his migration agent to include this information in the visa application. 

3. The Applicant was not able to point to any compelling or compassionate circumstances that would justify the waiver of Public Interest Criterion 4020.

4. As accurately summarised by counsel for the First Respondent’s Submissions filed 8 August 2014 (in paragraphs 15 to 22 inclusive) the Tribunal:-

   a)then went on to consider whether, in light of the evidence before it, the Applicant was eligible for the visa. The Tribunal noted that the Applicant needed to satisfy all of the criteria for the grant of the visa set out in the Migration Regulations 1994 (Cth) (‘the Regulations’), including the requirements set out in cl.485.221 and cl.485.224 of Schedule 2 to the Regulations;

   b)observed that cl.485.221 of Schedule 2 to the Regulations required the Applicant's skills to have been assessed by the relevant assessing authority as suitable for the Applicant’s nominated skilled occupation, and that the Applicant had confirmed in his evidence that he had never applied for a skills assessment from the relevant assessing authority, TRA. Accordingly, the Tribunal concluded that the Applicant did not satisfy cl.485.221 of Schedule 2 to the Regulations;

   c)noted that the Applicant had requested additional time in which to apply for a skills assessment from TRA. However, the Tribunal took into account the fact that the Applicant had not yet made such an application and found that even if the Tribunal were to delay finalising its decision, it would not overcome the issues faced by the Applicant in relation to cl.485.224 of Schedule 2 to the Regulations;

   d)then turned to the question of whether the Applicant satisfied the requirements of cl.485.224 of Schedule 2 to the Regulations. The Tribunal observed that this clause required the Applicant to satisfy, relevantly, Public Interest Criterion 4020. That Criterion was that there was no evidence before the Tribunal that the Applicant had given, or caused to be given, information that was false or misleading in a material particular in relation to the application for the visa;

   e)considered in detail the relevant authorities in relation to:-

   i)what is required in order for there to be ‘no evidence’  before the Tribunal;

   ii)when information will be false or misleading in a material particular; and

   iii)when an applicant will be taken to have given or caused to be given information in relation to a visa application;

   f)concluded that there was evidence before the Tribunal that the Applicant had given, or caused to be given, information that was false or misleading in a material particular in relation to his visa application. In particular, the Tribunal found that:-

   i)the information provided in the visa application form lodged on behalf of the Applicant that the Applicant had applied for and received a skills assessment from TRA on 23 April 2010 was false and misleading;

   ii)that information was relevant to the Applicant's eligibility for the visa because the Applicant was not able to satisfy the requirements of cl.485.221 of Schedule 2 to the Regulations without it; and

   iii)that information was given, or caused to be given, by the Applicant, even though he did not specifically authorise his agent to provide false or incorrect information in his visa application, because he had authorised his agent to lodge an application for a Skilled (Provisional) (Class VC) Subclass 485 (Skilled-Graduate) visa on his behalf and, as such, was responsible for the contents of that application;

   g)therefore concluded that the Applicant did not satisfy Public Interest Criterion 4020. The Tribunal went on to consider the discretion to waive the requirements of the Criterion due to compassionate or compelling circumstances, but found that there were no such circumstances in this case. On that basis, the Tribunal concluded that the Applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations; and

   h)accordingly, concluded that the Applicant was not eligible for the visa, and affirmed the decision under review.

Consideration

1. The Applicant was content for his migration agent to complete the details of the application form without further input from him.  This was sufficient to justify the Tribunal’s conclusion that an agency relationship existed between the migration agent and the Applicant.  In Sran v Minister for Immigration and Anor [2014] FCCA 37, Judge Nicholls said at paragraph 44 thereof:-

   “What arises from this evidence (and the broader evidentiary context in which it appears) is that the applicant “instructed” S & S to lodge a visa application. Further, contrary to the representative’s submissions (at CB 72.5 — “no fee agreement”), the applicant’s evidence was that a fee was discussed. The applicant plainly knew that the “485 visa application” was to be made. This is sufficient to ground the Tribunal’ finding that an “agency agreement was established” for that purpose. The applicant plainly knew, as his evidence indicates, that an application was to be submitted on his behalf. He plainly said he sent the fee and documents as discussed.”

2. The Tribunal considered whether, in light of the evidence before it, the Applicant was eligible for the visa. The Tribunal observed that cl.485.221 of Schedule 2 to the Regulations required the Applicant’s skills to have been assessed by the relevant assessing authority as suitable for the Applicant’s nominated skilled occupation, and that the Applicant has confirmed in his evidence that he had never applied for a skills assessment from the relevant assessing authority, TRA. Accordingly, the Tribunal concluded that the Applicant did not satisfy cl. 485.221 of Schedule 2 to the Regulations.

3. The Tribunal then turned to the question of whether the Applicant satisfied the requirements of cl.485.224 of Schedule 2 to the Regulations. The Tribunal observed that clause required the Applicant to satisfy, relevantly, Public Interest Criterion 4020. The Tribunal concluded that the Applicant did not satisfy Public Interest Criterion 4020, and nor were there circumstances for the Tribunal to waive the requirements of the criterion due to compassionate or compelling circumstances. Therefore, the Applicant did not satisfy cl.485.224 of Schedule 2 to the Regulations. Accordingly, the Applicant was not eligible for the visa.

4. Public Interest Criterion 4020 is as follows:-

   “(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.”

5. In relation to the requirements of Public Interest Criterion 4020, there was considerable evidence before the Tribunal that information had been provided in support of the Applicant’s visa application which was “purposefully untrue” so as to attract the operation of that exclusion, regardless of whether the Applicant had knowledge of the fact.[6] As Buchanan J said in Trivedi v Minister for Immigration and Border Protection[7] at paragraphs 49 and 50:-

   “[49] For the reasons I have already given, it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue. It seems to me to be clear from the same analysis that the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application. Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud 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 provision.

   [50] There was no doubt in the present case (and in Vyas) that the IELTS test result form provided by the first appellant contained false information. It was clearly open to the MRT, on the other facts found by it, to conclude that it was bogus. It was a counterfeit. It was not the real thing. The fact that a formal declaration to that effect was not made in the present case does not alter the character of the document, or the information it contained. It was also open to the MRT to find, as it did, that the information thereby given by the first appellant was false or misleading in a material particular. It was not necessary to prove that the first appellant knew the contents of the document were false or misleading when she proffered it.”

   [6] Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 at [32] to [33] and [49] to [50].

   [7] [2014] FCAFC 42.

1. The Tribunal correctly considered whether to exercise the discretion to waive the requirements of Public Interest Criterion 4020 and properly determined the circumstances for the exercise of that discretion did not exist in the Applicant’s case.

2. These matters were all reasonable findings of the Tribunal on the evidence before it.  The Tribunal could come to no other decision. The Tribunal was not required to defer its decision-making processes in order to give the Applicant time to satisfy the requirements of the visa. This application is entirely unmeritorious. Accordingly the application for extension of time should not be granted.  The application will be refused and costs will follow the event.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  24 September 2014