Singh v Minister for Immigration

[2014] FCCA 1368

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1368

Catchwords:
MIGRATION – Application under r.16.05(2) of the Federal Circuit Court Rules 2001 (Cth) – failure of Applicant to attend directions hearing –
no adequate reasons for non-appearance – substantive application does not raise an arguable case – application dismissed.

Legislation:

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

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth), Sch.2, cl.885.224(a)

Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 250
MZXHY v Minister for Immigration and Citizenship [2007] FCA 622

Applicant: MANDEEP SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 180 of 2014

Judgment of: Judge Whelan

Hearing date: 16 June 2014

Date of Last Submission: 16 June 2014

Delivered at: Melbourne

Delivered on: 16 June 2014

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the Respondents: Mr Hutton

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The Application in a Case filed 16 May 2014 be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $1,331.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 180 of 2014

MANDEEP SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

Introduction

1. I intend to deal with this matter on the basis of the material that is before the Court, including:

   ·The submissions filed by the First Respondent;[1]

   ·The documents that have been filed by the Applicant;[2] and

   ·What the Applicant has put to the Court this afternoon.

   [1] First Respondent’s Submissions on Reinstatement Application filed 6 June 2014.

   [2] Application in a Case filed 16 May 2014; Affidavit filed 16 May 2014.

2. This is an Application in a Case under r.16.05(2) of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), seeking the reinstatement of the Applicant’s case which was dismissed by an order of Registrar Allaway made on 7 May 2014. The order dismissed the substantive application on the basis that the Applicant had failed to attend a hearing listed on

   
   

   7 May 2014.

3. The substantive application in this matter seeks the review of a decision of the Migration Review Tribunal (“the Tribunal”) in which the Tribunal affirmed a decision of a delegate of the First Respondent to refuse the Applicant a Skilled (Residence) (Class VB) visa.

   
   

   The Tribunal, in its decision, found that the Applicant did not meet the requirements of cl.885.224(a) of Schedule 2 of the

   
   Migration Regulations

   1994 (Cth) (“the Regulations”), as the Tribunal was satisfied that the Applicant had provided bogus documents to Trade Recognition Australia (“TRA”) and to the Department of Immigration (“the Department”), and therefore failed to satisfy

   
   

   Public Interest Criteria 4020.

4. The Tribunal’s findings with respect to the Applicant submitting bogus documents relied on a number of matters:

   ·

   A letter provided to the TRA certifying that the Applicant had worked at a particular bistro from 15 February 2007 to

   
   

   25 February 2008 and that he had completed more than 900 hours of work experience there; and

   ·A copy of a skills assessment granted by the TRA on the basis of that letter which was provided to the Department. The Tribunal was satisfied that the Applicant had given the letter to the TRA and the skills assessment to the Department.

5. The Tribunal found that the letter was a document that it reasonably suspected was counterfeit and so a bogus document. In reaching this conclusion, the Tribunal noted a number of matters, including:

   ·A sworn statement given by a person who gave evidence in County Court proceedings that had been involved in the production of hundreds of fraudulent documents, including work reference letters from the particular bistro relied upon by the Applicant;

   ·An extract from a spreadsheet of material found on that person’s computer which identified the Applicant’s name and date of birth; and

   ·Confirmation from the Department that the work reference letter provided by the Applicant to TRA matched the copy found on that person’s computer.

6. The Tribunal also noted that the Applicant’s first Form 1221 dated

   
   

   11 December 2011, which set out his employment history, did not refer to the Applicant working at the bistro relied upon, although a second Form 1221, dated 5 January 2012, did so. Further, the Applicant’s résumé submitted with the visa application failed to refer to his employment at that bistro.

7. The Tribunal, therefore, found that the skills assessment was a bogus document because it was a document the Tribunal reasonably suspected was obtained because of the reference letter which was a false and misleading statement. The Tribunal, therefore, concluded that there was evidence that the Applicant had given, or caused to be given, to an officer of the Department or a relevant assessing authority, a bogus document or information that was false or misleading in a material particular and he, therefore, could not satisfy Public Interest Criteria 4020(1)(a).

8. In this application,[3] the Applicant seeks to have his substantive application reinstated. The First Respondent contends that the Court has power to set aside or vary a judgment order where that order was made in the absence of a party, but such a discretion must be exercised with caution. The overriding principle is whether it is in the interest of justice to set aside orders that have been made by the Court.

   
   

   In determining whether it is in the best interest of justice to do so,

   
   

   the primary consideration is whether the Applicant has demonstrated that there is an arguable case in the principal proceedings.[4]

   [3] Application in a Case filed 16 May 2014.

   [4] Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 250.

9. The First Respondent contends that the substantive application does not demonstrate an arguable case and, therefore, the matter should not be reinstated. The substantive application filed on 3 February 2014 contains the following grounds of review:

   1.  S.447, Judicial review can be lodged within 35 days after tribunal review has been finalised

   2.  I do have supportive documents to prove that my application was valid at time of the application and now I have got the Documents to satisfy the criterion.

   3.  I have strong confidence that High court case which is similar to me, this case aids me to get favourable decision.

   4.  I will do my submission which would be submitted by solicitor once person hired[5]

   [5] Application filed 3 February 2014, at p.3.

10. There was an affidavit filed with the substantive application which states:

    1.  I would like to appeal the decision in Federal Circuit court (sic) as Tribunal Decision wasn’t Legitimate (sic)

    2. There was regulation and Case law under the Migration ACT 1958, an applicant submit the Application with IELTS booking Reference no.

    3.  Suddenly Delegate has refused the application and subsequently Tribunal has affirmed the decision not grant the visa is not expectable.[6]

    [6] Affidavit of Mandeep Singh filed 3 February 2014, at pp.1-2.

11. The same contents were contained in an affidavit[7] lodged by the Applicant in support of the application to have the substantive application reinstated.

    [7] Affidavit of Mandeep Singh filed 16 May 2014, at pp.1-2.

12. The First Respondent made the following submissions with respect to the first two grounds of the substantive application: 

    ·Ground one merely recites the provisions of the legislation and is not, in itself, a ground of review; and 

    ·Ground two claims the Applicant has documents which show that he now satisfies the criteria; this ground does not particularise what these documents are.

13. The existence of documents that would show that the Applicant should have been granted the visa will only demonstrate that the Tribunal has fallen into error if these documents were before the Tribunal when it made its decision. If these documents are obtained after the Tribunal decision, or were not put before the Tribunal, then they will not be relevant. The First Respondent submits that, otherwise, the Applicant is attempting an impermissible review of the merits of the case.

14. The First Respondent further submits that:

    ·

    Ground three fails to identify a relevant High Court case and unless that case is identified with the greatest precision,

    
    

    that ground must fail; and

    ·

    Ground four does not allege any error on behalf of the Tribunal;

    
    

    it merely states that the Applicant is seeking representation.

    The First Respondent therefore submits that the Applicant could not raise an arguable case impugning the decision of the Tribunal.

15. The First Respondent contends that it was open to the Tribunal to determine that the letter and the TRA skills assessment were bogus documents, and it was open to find that these bogus documents were provided to the Department and the TRA. It was, therefore, open to the Tribunal to find that the Applicant failed to satisfy Public Interest Criteria 4020. Once such a finding was made, it follows that the visa could not be granted. Further, the First Respondent submits that there has not been a satisfactory reason provided for why the Applicant failed to attend the directions hearing. As the substantive application fails to raise an arguable case and he has not provided satisfactory reasons for non-attendance at the directions hearing, the application should be refused. 

Conclusions

1. In deciding whether to grant the application, the Court must be satisfied that:

   ·There is an adequate reason for the non-appearance of the applicant; and

   ·There is an arguable case on the merits of the substantive application; or

   ·It was in the interests of justice to allow the application to proceed.

2. In neither his application, nor his affidavit in support, did the Applicant provide any reason for his failure to appear at the directions hearing on 7 May 2014. When questioned today, the Applicant stated he had been sick, but was unable to say why he did not either:

   ·Seek the consent of the First Respondent to an adjournment; or

   ·Apply to the Court for the matter to be adjourned; or

   ·Notify the Court that he was ill,

   and he could not provide any medical evidence to suggest that his failure to attend on that day was due to his ill health.

3. The orders were made by Registrar Allaway on 7 May 2014 and the Applicant lodged his case on 16 May 2014. There is, therefore,

   
   

   not an extensive delay in terms of the matter coming before the Court.

   
   

   It falls to a consideration of the merits of the Applicant’s case.

   
   

   The Applicant’s grounds have already been referred to in the submissions of the First Respondent. The first ground is not a ground as such, but simply a reference to the relevant statutory provisions on which the application is made. The second ground makes no reference to what documents the Applicant seeks to rely upon, or whether those documents were in existence at the time of the Tribunal decision.

   
   

   If they were in existence but not provided to the Tribunal, there can be no error on the part of the Tribunal if it failed to consider them in its deliberations.

4. If they were not in existence at the time of the hearing, then the Applicant is seeking to call new evidence which would appear to be for the purpose of the Court making findings of fact different to that of the Tribunal. The admission of new evidence for such a purpose is not permissible.[8] The third ground refers to an unnamed High Court case which the Applicant says is similar to his. Without further details, the Court cannot consider what the Applicant submits with respect to any precedent that the Court might be bound to follow. The last ground makes no claim with respect to the conduct of the Tribunal but merely indicates the Applicant’s intention should the matter proceed to a hearing.

   [8] MZXHY v Minister for Immigration and Citizenship [2007] FCA 622.

5. The Tribunal affirmed the decision under review on the basis of findings that the TRA assessment was based on a bogus document, namely, a letter provided to the TRA which stated that the Applicant had worked at a particular bistro between 15 February 2007 and

   
   

   25 February 2008 and had completed 900 hours of work experience. The Tribunal provided cogent reasons as to why the letter was a bogus document within the meaning of the Migration Act 1958 (Cth).

   
   

   The Tribunal, therefore, concluded that the skills assessment was a bogus document because it was a document which the Tribunal reasonably suspected was obtained on the basis of the letter which, itself, was false and misleading.

6. Under those circumstances, the Applicant failed to satisfy

   
   

   Public Interest Criteria 4020. I am satisfied that none of the grounds advanced by the Applicant identify any error on the part of the Tribunal in reaching its conclusion. I am not satisfied that the Applicant has established an arguable case on the merits. Further, he has not provided a reasonable explanation for his failure to appear at the directions hearing. For these reasons, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate: 

Date: 26 June 2014