Singh v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 607
•10 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 607
File number: SYG 994 of 2020 Judgment of: JUDGE D HUMPHREYS Date of judgment: 10 July 2024 Catchwords: MIGRATION – Skilled –Regional Sponsored (Subclass 487) – Where matter is significantly delayed – Where applicant provided a bogus document to the Department of Immigration and Border Protection – Where there is a question of statutory construction concerning the provisions of PIC 4020 of the Migration Regulations 1994 (Cth) – Where the three-year ban bore no relevance to the Tribunal’s decision – Where no jurisdictional error was found – Application dismissed. Legislation: Migration Act 1958 (Cth) ss 5, 65
Migration Amendment Regulations 2011(No 1) (SLI No 13 of 2011)
Migration Regulations 1994 (Cth) sch 2, 4
Cases cited: Josan v MIBP [2016] FCCA 493 Division: Division 2 General Federal Law Number of paragraphs: 45 Date of hearing: 4 July 2024 Place: Parramatta Solicitor for the Applicant: Eugenia Anang, Christopher Levingstone and Associates Counsel for the Respondents: Ms Hooper of Counsel Solicitor for the Respondents: Sparke Helmore Lawyers ORDERS
SYG 994 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DALJEET SINGH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE D HUMPHREYS
DATE OF ORDER:
10 JULY 2024
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The Applicant is to pay the First Respondent’s costs fixed in the amount of $7467.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE D HUMPHREYS
INTRODUCTION
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 23 March 2020. The Tribunal affirmed the decision of a delegate of the Minister for Immigration (“the delegate”) on 3 November 2014, which denied the applicant a Skilled (Provisional) (Class VC) (Subclass 487) visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND
The applicant is a citizen of India, born on 17 January 1987. The applicant first arrived in Australia on 16 August 2007.s
On 20 January 2009, the applicant applied for a Skilled – Regional Sponsored (Subclass 487) visa on the basis of his nominated occupation of Pastry Cook. At the time of the application, he provided an assessment outcomes letter dated 18 September 2008 which showed that he had successfully acquired a skills assessment for that occupation.
On 17 August 2009, the applicant’s representative received a letter of completion from the Sunshine College of Management Pty Ltd stating that the applicant had enrolled in an Advanced Diploma of Hospitality Management.
On 24 December 2009, the applicant provided supporting documentation for his application for a Skilled – Regional Sponsored (Subclass 487) visa (“the visa”). Part of the documentation provided was a skills assessment from the Trades Recognition Australia (“the TRA”). The applicant provided documents evidencing his 900 hours of work experience from Bakers Hut Bread Supplies (CB 68 - 69).
On 8 August 2014, the applicant received a letter from the delegate inviting him to comment on the documents provided for the visa application, as after checks were conducted on the information provided and “unfavourable information which does not support [the applicant’s] application” was found (CB 94). This information concerned certain admissions from an individual that the applicant had been involved in the creation of false references from employers including Bakers Hut Bread Supplies. The inference was that the documents supplied by the applicant in support of his visa application were fraudulent.
The applicant was notified of the requirement for the grant of the visa, which was that he needed to satisfy PIC 4020 pursuant to Schedule 4 of the Migration Regulations 1994 (Cth) (“the Regulations”). The applicant had to ensure he did not provide any evidence to the delegate that was false or misleading otherwise the application could be refused.
The applicant was informed that during a recorded interview on 11 November 2009, another individual admitted that they were fraudulently producing work references that were used by those seeking General Skilled Migration visa applications. The individual interviewed also subsequently pleaded guilty to the manufacture of “bogus documents”, specifically from Bakers Hut Bread Supplies (CB 95).
On 3 November 2014, the applicant’s visa application was refused by the delegate. The decision record by the delegate is summarised as follows (CB 112 -117):
·An individual pleaded guilty following a recorded interview on 11 November 2009 and they were “involved in the design, production, and sale of employer work references and that they were fraudulent in content”.
·This included that the applicant was sent a reminder that he was invited to comment on the information provided in the letter sent on 8 August 2014 regarding the bogus document provided.
·No further information or evidence had been provided and the applicant was informed he failed to provide appropriate evidence.
·The visa was refused as the applicant did not satisfy PIC 4020.
On 20 November 2014, the applicant applied to the Tribunal for review of the delegate’s decision to refuse his visa.
On 23 February 2015, the Tribunal sent a summons letter to the Secretary of the Department of Immigration and Border Protection (“the Department”). The summons sought further information or documents about the applicant “that confirms the applicant’s work references from Bakers Hut” and or any document that confirms the applicant’s work references (CB 124 – 125).
On 3 March 2015, the Department replied to the summons letter, informing that there was no information seized during the search warrant that related to the applicant, but provided a redacted copy of a Bakers Hut work reference for another individual.
On 6 March 2015, the Tribunal sent an email to the TRA seeking any further information relating to the applicant. The TRA replied to the Tribunal on 16 March 2015 with a copy of the applicant’s Bakers Hut work reference.
On 17 March 2015, the Tribunal wrote to the applicant providing particulars of the information before the Tribunal summarised as follows (CB 148 – 150):
·In an investigation conducted into Mr Carmine Amarante, also known as Mr Deniz Kordemir, a former teacher at Della International College, he admitted to being involved in creating fraudulent documents for skilled migration purposes from approximately 40 different employers.
·Mr Amarante stated that Bakers Hut Bread Supplies was one of these businesses.
·The period the applicant claimed to have completed work experience at Bakers Hut Bread Supplies (15 September 2007 to 8 August 2009) coincided with the period when Mr Amarante was engaged in fraudulent activities.
·The Tribunal had obtained a copy of a work reference letter from Bakers Hut Bread Supplies and compared it to the applicant’s work reference to the TRA. The Tribunal has taken the view that the letters are almost identical in content and format.
On 7 April 2015, the Tribunal invited the applicant to appear before them to give evidence and present argument and on 5 June 2015, the Tribunal affirmed the decision under review.
On 22 November 2016, by consent, the then Federal Circuit Court remitted the decision to be reconsidered by the Tribunal on the basis that the Tribunal erred (CB 324-325):
…by failing to provide ‘clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’ (as required under section 359A of the Migration Act 1958 (Cth)). Specifically, the Second Respondent failed to give clear particulars of the evidence given by the proprietor of Bakers Hut, Mr Deniz Kordemir, in an unrelated Tribunal proceeding, which it relied on to affirm the decision under review.
On 20 January 2020, the applicant was invited to attend a second hearing to give evidence and present arguments at a scheduled hearing on 17 February 2020.
On 13 February 2020, the applicant requested that the hearing be postponed. This request was granted, and the hearing was postponed until 4 March 2020.
On 17 March 2020, the applicant’s Registered Migration Agent sent an email in reply to the Tribunal and conceded the following:
1.The Applicant concedes that he did not perform the work experience as described.
2.The Applicant concedes that the TRA skills assessment is a bogus document as defined.
3.The Applicant says that the information underpinning the determination at first instance that PIC4020 was enlivened was correct but that the PIC4020 “bar” has now expired and should not form part of the remitted review.
4.In relation to the waiver please see the reply at 3 above.
On 23 March 2020, the Tribunal affirmed the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa. The Tribunal was satisfied that the applicant had provided a bogus document to the Department, being his TRA skills assessment, which was obtained because of a false or misleading statement. Further, the Tribunal accepted that the TRA was not a designated assessing authority as at the date of the visa application. The Tribunal confined its findings to whether the applicant had provided a bogus document, which did not require the information provided related to a material particular of a criterion for the grant of the visa (CB 388 [21]). The Tribunal did not remit the application to the Department and found the applicant did not meet PIC 4020(1) (CB 388 [22]-[23]).
The Tribunal considered the applicant’s representative’s submissions that the PIC 4020(2) bar had expired. It accepted this was correctly found, but that it was irrelevant to its decision on the visa application (CB 388 [24]-[27]).
On 24 April 2020, the applicant filed his application for judicial review of the decision made by the Tribunal.
GROUND OF REVIEW
On 24 April 2020, the applicant filed an Originating Application with a single ground of review with two particulars as follows:
1. The Second Respondent fell into jurisdictional error by importing into the decision a requirement that the Applicant was bound to address the waiver provisions of PIC4020.
Particulars
(a) PIC4020 expires 3 years after the delegates decision, which in the current case was 3 November 2014 and the date of the impugned decision is 23 March 2020.
(b) The Second Respondent at paragraph 24 of the decision record refers to the decision in Josan v MIBP [2016] FCCA 493 (Judge Dowdy, 11 March 2026) where the First Respondents representatives argued “In response, the Minister argued that the three year period ran from the date of the decision of the delegate.” (at paragraph 22).
(emphasis in original)
THE APPLICANT’S SUBMISSIONS
The applicant submits that the Tribunal affirming the delegate’s decision on 3 November 2014 on the basis that the applicant did not meet the requirements of cl.487.288 of sch 2 of the Regulations is “infected by jurisdictional error”.
The applicant’s claim that in accordance with PIC 4020(2) precludes the applicant being granted a visa for a three-year period and that period commenced on 3 November 2014, being the date of the delegate’s decision and concluded on 3 November 2017. Thus, notwithstanding the provision of the bogus document, the applicant was still entitled to be considered for the grant of a visa and PIC 4020(4) should not form part of the consideration by the Tribunal.
The Tribunal did consider PIC 4020 and affirmed the decision on the basis that the applicant did not meet the provisions of PIC 4020(1) as it was not satisfied that there is “no evidence before it that the applicant has given or caused to be given to the Minister, a bogus document within the meaning of s 5(c) of the Act.”
The Tribunal agreed with the applicant’s submissions regarding the expiration of PIC 4020 being a three-year bar. However, it held that PIC 4020(4) continues to form part of the remitted review and proceeded to make findings with respect to that by the provision. It ultimately found that there were “no compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen justifying the grant of the visa and to waive the requirements of PIC4020(1)(a).”
The Tribunal found that it was “not required to make any finding in respect of PIC 4020(2) and that in that respect the Tribunal’s finding that the applicant does not meet PIC4020(1) is somewhat academic in relation to any other visa applications the applicant may make [25] – [26]. Notwithstanding this, the Tribunal continued its assessment as to whether the applicant met the requirements of PIC 4020(4).
In the alternative, should the Court find that the Tribunal was correct in expecting the applicant to provide submissions in relation to the waiver provisions, it is submitted that the Tribunal erred in not making a specific finding as to whether or not the requirements of PIC 4020(2) should be waived, noting the Tribunal made a specific finding in that respect in relation to PIC 4020(1)(a).
THE FIRST RESPONDENT’S SUBMISSIONS
The first respondent submits that to be granted a Subclass 497 visa, the applicant needed to satisfy PIC 4020:cl 487.228(a). The applicant has conceded before the Tribunal that he did not satisfy this requirement (CB 374).
The first respondent further submits that the Tribunal was correct when it said that the PIC 4020(2) three-year ban ran from the date the applicant was refused a visa by the delegate. The applicant’s submissions to the Tribunal directed to the running of PIC 4020(2) bar were, however, irrelevant to the Tribunal’s decision. The bar assumes relevance where the applicant makes a second or subsequent visa application that is made after an applicant or a member of the family unit has been refused a visa because of a failure to satisfy PIC 4020(1) (within three years of that earlier refusal decision).
This is plain from the language of PIC 4020(2) which refers to “refused a visa”, noting that the visa application the present tense was not finally determined to the Tribunal made its decision because the visa refusal was before the Tribunal on review: cf s 5(9A) of the Act. The submissions made by the applicant therefore did not assist when he was before the Tribunal on review of the initial application for the visa as opposed to a second or subsequent application for visa, which the timing of the bar would have been relevant to.
The applicant needed to satisfy the criteria for the grant of a Subclass 487 visa. One of the criteria for the grant of the visa was cl 487.228 of the Regulations. This required the applicant to satisfy certain PIC including PIC 4020. The PIC 4020(2) bar for a subsequent visa application had ceased. There was no error in the Tribunal finding the applicant did not meet PIC 4020(1) and therefore did not meet cl 487.228 of the Regulations.
The alternative argument contained within the applicant’s written submissions is not reflected in the grounds of the application. Any oral application to amend at the hearing should be rejected because the argument has no substance.
The applicant states “the Tribunal erred in not making a specific finding as to whether or not the requirements of PIC4020(2) should be waived, noting the Tribunal made a specific finding in that respect in relation to PIC4020(1)(a).” No occasion to consider the waiver of PIC 4020(2) arises until the applicant makes a second or subsequent application that requires the satisfaction of PIC 4020 and a decision-maker comes to determine it within the relevant window of time.
The Tribunal in the present case did not have to pre-emptively determine initial waiver before any further visa application is made, let alone consider that issue in the present case, whereby the time it made its decision, the three-year period had already ended.
CONSIDERATION
First, the Court notes the entirely unacceptable length of time this matter has taken to reach the stage of the Court considering the matter for a second time. The applicant applied for the relevant visa in 2009. Some 15 years later the matter is still unresolved. Such delays not only reflect badly on the process of review of migration decisions but bring the entire Australian migration program into disrepute.
The Court is reasonably satisfied that the applicant did provide a bogus document in relation to the application under review. So much is conceded by him. The question then boils down to the appropriate statutory construction of the provisions of PIC 4020 and how they apply in these circumstances.
PIC 4020 reads 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 Tribunal during the review of a Part 5 - reviewable decision, 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 to grant the visa; 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).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(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 to grant the visa; 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).
(2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(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: For the definition of bogus document, see subsection 5(1) of the Act.The respondent submits that the three-year ban in PIC 4020(2) is irrelevant to the matter under consideration as the ban only applies to a second or subsequent visa application. Reliance is placed on the Explanatory Statement to the Migration Amendment Regulations 2011(No 1) (SLI No 13 of 2011). That states at page 1 that the amendments:
…prevent the grant of a visa if the applicant has had a (sic) application refused under subclause 4020(1) and makes a subsequent application within the period commencing three years before the current application was made, and ending when the Minister makes a decision to grant or refuse the application.
At page 19 of the Explanatory Statement the following appears referring to PIC 4020(2):
This subclause prevents a visa applicant satisfying the new clause 4020 in circumstances where a previous visa application has been refused, due to the applicants or a member of the applicants family units failure to satisfy subclause 4020(1), provided the previous refusal occurred within the period commencing three years before the current application was made and ending when a decision is made by the Minister to refusal grant the application.
The Court is satisfied that the correct interpretation in relation to the three-year ban applies only to a second or subsequent application for a visa. In the current case, the matter before the Tribunal related to the initial application for the visa. In these circumstances the Court is satisfied that the applicant did need to satisfy the criteria for the grant of the relevant visa including PIC 4020. The three-year bar for any subsequent application had no relevance to the matter under consideration by the Tribunal. The applicant concedes and the Court is satisfied that he did not meet PIC 4020(1) and thus the decision to affirm the decision under review was correct. No jurisdictional error arises and ground one has no merit.
In relation to the second matter, being a complaint that the Tribunal should have made a specific finding as to whether or not the requirements of PIC 4020(2) should be waived, this was unnecessary because the application under review did not relate to a second or subsequent visa application. It was therefore unnecessary for the Tribunal to pre-emptively determine the issue of a waiver of PIC 4020(2) as it was still considering the original refusal. This ground, although not specifically pleaded as a ground of judicial review, also has no merit.
The application is accordingly dismissed as none of the grounds of judicial review have any merit.
CONCLUSION
The application is dismissed.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of Judge D Humphreys. Associate:
Dated: 10 July 2024
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