Singh v Minister for Immigration
[2012] FMCA 1207
•21 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SINGH v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1207 |
| MIGRATION – Application for judicial review of Migration Review Tribunal decision – applicant seeking to challenge factual findings of Tribunal – grounds of application not disclosing any matter capable of constituting jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth) |
| CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261 Zhang v Minister Immigration and Citizenship [2012] FMCA 1011 Singh v Minister of Immigration and Citizenship [2012] FMCA 145 |
| Applicant: | JATINDER PAL SINGH |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 776 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing date: | 12 November 2012 |
| Date of Last Submission: | 12 November 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 21 December 2012 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the first Respondent: | Mr Horan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6,471.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 776 of 2012
| JATINDER PAL SINGH |
Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant seeks judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 4 June 2012. The Tribunal affirmed a decision of a delegate of the Minister refusing to grant the applicant a Class VC Skilled (Provisional) visa.
Although I shall return to the matter later, it is sufficient for these purposes to say that the applicant’s application and all the materials filed in support of it, together with his oral submissions, amount in substance to merits review, which is not permissible in an application for judicial review. For this reason and for the reasons that follow, the application must be dismissed.
The background facts in the Tribunal’s decision
It is not controversial that the applicant is a citizen of India. From his evidence given to the Tribunal (see CB 175 at paragraph 28 and following), the applicant arrived in Australia in May 2007 and commenced work, as he put it, at Salera’s Restaurant in October 2007.
The work that the applicant did at Salera’s Restaurant was used by him as part of his Trades Recognition Australia (“TRA”) assessment.
Without the TRA assessment, the applicant could not have obtained the visa he sought.
The critical condition applying for these purposes is contained in Public Interest Criterion 4020 which requires that there be:
“…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…”
Put shortly, the Tribunal found that the applicant’s work reference from Salera’s Restaurant was false and misleading within the meaning of PIC 4020(5) at the time it was giving to the relevant assessing authority (TRA). In particular, the Tribunal did not accept, contrary to the applicant’s assertions, that he had performed over 900 hours of work at Salera’s Restaurant as a cook as alleged in his reference from that entity.
The Tribunal considered that to be a material particular because at paragraphs 48 and 49 (CB 183):
“48. This is because the applicant relied on the 900 hours of work experience stated in that letter in seeking his TRA assessment. This information was very important to the outcome of his TRA application which, in turn, was a necessary requirement for the grant of the visa. Thus, the Tribunal finds that information about the applicant’s employment as a cook (or chef) is a material particular. The requirement to obtain a skills assessment for a nominated occupation is a mandatory requirement which must be met before the visa can be granted: cl.485.221 and cl.487.223.
49. On the evidence before it, the Tribunal finds that the applicant provided to the TRA (which the Tribunal finds to be a relevant assessing authority for the purposes of PIC 4020), information about his employment as a cook (or chef) that is false or misleading in a material particular to the application for the visa. Accordingly, the Tribunal is not satisfied that the applicant meets PIC 4020(1).”
The Tribunal went on at paragraph 50 and following not to exercise its discretion to waive the requirements of PIC 4020 and it should be noted that this aspect of the Tribunal’s decision was not the subject of challenge by the applicant.
The reasoning which led the Tribunal to the above conclusion is set out from CB 174 to 183. Put shortly, the Tribunal was troubled by:
a)inconsistencies between the applicant’s evidence as to what he had done as an employee at Salera’s Restaurant with the work reference that Salera’s Restaurant provided him and that he provided to TRA;
b)inconsistencies between the applicant’s evidence and that of his sister as to the amount of work he had done at Salera’s Restaurant, bearing in mind that the applicant’s sister was called to give evidence and was living with him at the time and was found by the Tribunal to be reasonably likely to be aware of his work patterns;
c)the fact that Salera’s Restaurant had been the subject of a Departmental inquiry showing that Salera’s Restaurant had issued a number of false work reference letters;
d)the fact that Carmine Amarante, the person who had organised the scheme whereby these false work references were produced, had given an interview to the Department about Salera’s Restaurant and that in the interview, Mr Amarante stated that “while some of the students may have done some hours at the restaurant, none completed 900 hours” and that Mr Amarante had specifically identified the applicant’s work reference from Salera’s Restaurant as one of the documents identified as being false (paragraph 41 CB 181-182).
All of these matters were put to the applicant in section 359A letters.
The application, the affidavit and the materials in support
The applicant’s application essentially gives as grounds of application matters going to his good character, his close attachment to his sister and his age. These would be matters which would have otherwise supported the exercise by the Tribunal of its discretion to waive PIC 4020.
The affidavit in support essentially repeated the facts giving rise to the applicant’s assertion that he had indeed spent 900 hours working at Salera’s Restaurant.
The written submissions titled “To Whom It May Concern” filed on
11 October 2012 largely repeat the factual assertions the applicant made to the Tribunal.
In his oral submissions before the Court, the applicant commenced by purporting to explain the differences in evidence between himself and his sister and placing emphasis upon her busy schedule with a very young child. He went on to ask why the Tribunal did not ask him about his duties (something that seemed to me the Tribunal did do specifically, at the very least in the section 359A letters).
The applicant went on to talk in some detail about what work he said he had done at Salera’s Restaurant and essentially repeated his assertions made before the Tribunal, which of course the Tribunal had not accepted.
The respondent’s submissions
The first respondent’s written submissions, repeated in oral submissions, essentially are set out at paragraphs 16 and 17:
“16. The applicant is self-represented. The Application filed on 27 June 2012 does not articulate any grounds of alleged jurisdictional error affecting the Tribunal’s decision, but instead raises matters going to the merits of the decision. Similarly, the applicant’s affidavit sworn 27 June 2012 addresses factual matters that were the subject of the Tribunal’s decision.
17. The applicant has filed a written submission in which he essentially repeats his evidence that he worked at Salera’s in 2007-2008, and that he legitimately obtained the TRA skills assessment. The matters canvassed in the submission do not raise any legal or jurisdictional error.”
Although counsel for the first respondent properly took me to the relevant parts of the Tribunal’s decision to show that the Tribunal had considered the applicant’s case properly against the relevant regulations, bearing in mind that this was a matter of visa refusal rather than cancellation, it is, regrettably for the applicant, all too clear that the first respondent’s primary submission is entirely accurate.
All the matters raised by the applicant consist entirely of merits review. As Robertson J said in CSL Australia Pty Ltd v Minister for Infrastructure and Transport (No 3) [2012] FCA 1261, albeit in a slightly different context but for this purpose indistinguishably, at [93]:
“Before turning to consider the applicant’s grounds of judicial review and submissions, I would observe that those grounds and submissions in relation to the alleged failure to take into account relevant considerations in relation to the first voyage and the allegations of illogicality or irrationality in relation to all the voyages contained a substantial element of an appeal to the merits. This approach is not permissible on judicial review.”
The TRA issue
Counsel for the first respondent very properly drew the Court’s attention to the fact that TRA was not validly declared as an assessment authority at the relevant time. That changed on 1 October 2011 and covered applications made before 1 July 2010 (such as the applicant’s made in 2009).
I note that Barnes FM in Zhang v Minister Immigration and Citizenship [2012] FMCA 1011 at [80]-[97] effectively upheld the validity, so to speak, of the amendment.
Although the outcome in the case of Singh v Minister of Immigration and Citizenship [2012] FMCA 145, a decision of Driver FM, was to the opposite effect, at [69] Driver FM appeared in any event to accept that:
“The instrument signed by the Minister purports to have effect in respect of visa applications made before 1 July 2010 and it was not argued before me that the instrument is invalid by reason of its retrospective operation.”
In a footnote to that observation, his Honour said:
“I do not interpret the instrument as purporting to validate an invalid decision of the Tribunal or a delegate made before the instruments were made, which would offend against s.12 of the Legislative Instruments Act 2003 (Cth).”
To the extent that there may be any tension between the two decisions, I should follow that of Barnes FM which was made after that of Driver FM in Singh in circumstances where her Honour cites Singh as one of the authorities to which she was referred in Zhang.
Conclusions
For the above reasons, the application must be dismissed with costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 21 December 2012
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