SINGH v Minister for Immigration

[2014] FCCA 2076

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2076

Catchwords:
MIGRATION – Application for student visa – where bogus documents given to delegate of Minister – no jurisdictional error.

Legislation:  

Migration Regulations 1994, cl.572.224

Trivedi v the Minister for Immigration and Border Protection (2014) FCAFC 42

Applicant: HARWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 1 of 2014

Judgment of: Judge Jarrett

Hearing date: 5 May 2014

Date of Last Submission: 5 May 2014

Delivered at: Brisbane

Delivered on: 5 May 2014

REPRESENTATION

The Applicant appeared on his own behalf

Solicitor for the first respondent: Ms O’Connor

Solicitors for the first respondent: Clayton Utz

The second respondent entered a submitting appearance

ORDERS

1. The application for review filed 2 January 2014 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to this application fixed in the sum of $6646.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT BRISBANE

BRG 1 of 2014

HARWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

ex tempore

1. On 16 July, 2009 the applicant in this case was granted a student visa and entered Australia at the end of July, 2009.  That visa was due to cease on 5 September, 2011.  He was subsequently, and before it ceased, granted a bridging visa and made another application for a student visa.  That was granted to him in October, 2011.  That visa was due to cease on 1 December, 2012.  Shortly before that date, he applied for a further student visa.  It is that application which has led to the proceedings in this Court.

2. On 13 February, 2013, a delegate of the first respondent refused to grant the applicant the student visa on the basis that he did not satisfy the requirements of clause 572.224 of schedule 2 to the Migration Regulations1994 because he had provided false or misleading information in that he had provided false financial information and documents in support of his visa application.  The particular documents related to the source of funds from which he might satisfy some other of the requirements cast upon him by the Regulations. 

3. On 25 February, 2013 the applicant lodged an appeal from the decision of the delegate to a migration review tribunal and the tribunal commenced to process his application.  On 18 September, 2013 the tribunal wrote to the applicant and invited him to comment on or respond to information that the tribunal considered would, subject to his comments or response, be the reason or part of the reason for affirming the decision under review.  The tribunal referred in its letter to the false information that had been provided to the delegate, purportedly from the applicant’s grandmother and financial sponsor, and a purportedly false letter from a bank.

4. He was also asked to comment on some other information that the tribunal saw at that point as relevant.  The applicant responded on 2 October, 2013 through a submission that was made by him and his representative.  He pointed out to the tribunal that he was unaware of the false information that had been given to the delegate until some time after it had been given and the delegate had made the relevant decision.  The tribunal invited the applicant to appear before it and present arguments and evidence in support of his claims. 

5. The invitation was issued to the applicant on or about 6 November, and the hearing was to take place on 5 December, 2013.  Some further written submissions were made to the tribunal prior to the hearing, and a hearing was conducted on the relevant date.  The issue about the false information given to the first respondent’s delegate was canvassed by the tribunal with the applicant at the hearing.  The applicant was provided with the opportunity to give his explanation as to how it was that the false material came to be provided to the delegate. 

6. He disavowed any knowledge of the false material and suggested that the person who was at that point representing him, a person he suggested was a lecturer from an educational institution that he had been attending, had been off “on a jaunt of his own”. 

7. Following the hearing, the tribunal received another submission from the applicant, through his agent, that dealt with the issue of the false information again. 

8. The tribunal noted in its reasons for decision that were given on 9 December, 2013 that the main issue before it was whether the applicant met public interest criterion 4020 as required by clause 572.224 of Schedule 2 to the Regulations. I quote from the tribunal’s decision:

   Broadly speaking, this requires that: (a) there is no evidence that the applicant has given or caused to be given to the Minister, an officer of the tribunal, a relevant assessing authority or medical officer of the Commonwealth a bogus document or information that is false or misleading material, particularly in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made:  PIC 4020(1);  and (b) the applicant and each member of the family unit have not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing three years before the application was made to the present:  PIC 4020(2).

9. The tribunal referred to the provision which enabled the requirements of PIC 4020 to be waived in certain compelling or compassionate circumstances.  The tribunal referred to the relevant cases that bear on that issue and recorded that it was necessary for the tribunal to be satisfied that the applicant had not given, or caused to be given any bogus or misleading or false documents to any of the people nominated in PIC 4020(1).  The tribunal noted that it was not to the point that the applicant may not have knowingly given such a document to a relevant officer, or may have unwittingly given such a document. 

10. That view seems to have been confirmed by the Full Court of the Family Court of Australia in Trivedi v the Minister for Immigration and Border Protection (2014) FCAFC 42. That is to say, no element of knowledge by a visa applicant is necessary for there to be a breach of the relevant public interest criterion.

11. Having satisfied itself that there was indeed evidence before it that the applicant had given a false or misleading document to the first respondent, the tribunal turned to consider the applicant’s argument that a fraud had been perpetrated upon him, the tribunal and the first respondent by the person who lodged his initial visa application with the offending documents. 

12. The tribunal decided to reject the applicant’s claims that he was unaware of those false documents having been given to the first respondent.  In paragraphs 34, 35, 36 and 37 of the decision record, the tribunal sets out its reasons for concluding that it could not be satisfied that a fraud as alleged by the applicant had been perpetrated.  

13. The tribunal’s findings in that respect are findings of fact, and there is in my view, nothing in the reasons for decision of the tribunal to suggest that the tribunal’s conclusions about that are wrong.

14. There is no suggestion of any error of procedure or any error of law which might amount to a jurisdictional error sufficient to enable this Court to grant the applicant the relief that he seeks in this application. 

15. I accept the submissions made by the first respondent that the ground of review relied upon by the applicant in this case is nothing more than an attempt to have this Court review the merits of the decision of the tribunal and that is something which this Court simply cannot do. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 5 May 2014

Associate: 

Date:  9 September 2014