SRIVASTAVA v Minister for Immigration
[2014] FCCA 2327
•15 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SRIVASTAVA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2327 |
| Catchwords: MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal erred in its consideration of Public Interest Criterion 4020 in Schedule 4 to the Migration Regulations. |
| Legislation: Migration Act 1958 (Cth), ss.97, 359A |
| Abebe v The Commonwealthof Australia (1999) 117 CLR 510; [1999] HCA 14 Minister for Immigration and Citizenship v Liand Another (2013) 249 CLR 332; [2013] HCA 18 Singh v Minister for Immigration and Border Protection [2014] FCA 850 Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 Vyas & Anor v Minister for Immigration & Anor [2012] FMCA 92 |
| Applicant: | NEERAJ SRIVASTAVA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2315 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 17 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 15 October 2014 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | DLA Piper Australia |
| Counsel for the Respondents: | Mr Reilly |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2315 of 2013
| NEERAJ SRIVASTAVA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal dated 10 September 2013 affirming a decision of the delegate of the First Respondent not to grant the Applicant a Student (Temporary) Class TU visa.
The Applicant applied for the visa in question on 6 September 2012. On the same day the Department wrote to the Applicant asking him to provide certain documents within seven days including, relevantly, evidence that he had sufficient funds to support himself to meet the costs of the proposed study and that those funds had been held for three months prior to the date of the application. The Department explained the nature of the information required to evidence such funds.
In September 2012 the Applicant provided the Department with documentation, including copies of certificates as to fixed deposits said to be held in the names of his mother and brother. One of those certificates was in relation to a specified fixed deposit dated 28 December 2011 with the Oriental Bank of Commerce (the Bank) in India in the sum of INR 450,000 in the name of the Applicant’s mother. In an affidavit of support dated 12 September 2012 the Applicant’s mother declared that funds for the Applicant’s education came from sources that included this fixed deposit. In another affidavit of support, dated 12 September 2012, the Applicant’s brother declared that he sponsored and provided financial support to his brother for his studies and that funds towards the Applicant’s education in Australia came from specified sources, including the fixed deposit referred to above, which was said by the brother to be held by his mother.
On 3 October 2012 the Department wrote to the Applicant advising him that the bank documents he provided had been referred to the Department’s overseas post which had contacted the Bank. The Bank had confirmed that one of the accounts provided (the INR 450,000 fixed deposit) had been closed on 22 May 2012 and the whole amount credited to the mother’s saving account which, by the time of the inquiry in September 2012, contained a balance of less than INR 10,000. The information that one of the accounts provided did not contain the funds indicated in the information provided was put to the Applicant. It was also put to him that a document had been provided with the knowledge that little or no money was held in the account in an attempt to mislead the Department.
On 16 October 2012 the Applicant responded. He acknowledged there was an error in the information he had provided. He explained that after the Department’s email he had contacted his family in India and found that:
…unfortunately there has been some misunderstanding on my part which misrepresented the financial statement.
My Brother… has withdrawn some money from the fixed deposit account without our knowledge for a house, which he has purchased in July. Since my mother is not educated, she failed to understand how this could potentially affect my visa application.
The Applicant explained that he had been unaware of the situation and had no intention to mislead the Department.
On 17 January 2013 a delegate of the First Respondent refused the visa application on the basis that he was not satisfied that the Applicant met cl.572.224 in Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations) which requires an applicant to satisfy Public Interest Criterion (PIC) 4020 in Schedule 4 to the Regulations. The delegate was satisfied that the Applicant had supplied false or misleading information or incorrect documentation to the Department in relation to the fixed deposit of INR 450,000.
Relevant Legislation
PIC 4020 is relevantly 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.
…
(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: Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.
The Tribunal Review
The Applicant sought review by the Tribunal by application lodged on 11 March 2013.
In addition to extensive correspondence between the Tribunal and the Applicant’s then migration agent in relation to the validity of the review application, the Tribunal wrote to the Applicant on 5 June 2013 under s.359A of the Act inviting him to comment on information, including the evidence of the fixed deposit referred to above, the affidavit of support from his brother declaring that a fixed deposit bearing that number was then held by his mother (that is, on 12 September 2012) and the advice received by the Department from the Bank that the relevant fixed deposit had been closed since 22 May 2012.
The Tribunal explained that such information was relevant because it may cause the Tribunal to find that the Applicant had provided information which was false or misleading in a material particular for the purpose of satisfying financial requirements under the Migration Regulations and that the Tribunal “may find this because the affidavit of support from your brother was made after the fixed deposit was closed but declares on 12 September 2012 that it was still held by his mother”.
The Tribunal explained that if it found that the Applicant had provided false and misleading information it may find that the Applicant did not satisfy PIC 4020 as required under the applicable criteria for the visa in question.
On 12 July 2013 the Applicant replied. He stated that he had been unaware of the error in the financial documents, that he had received the financial statements from his family and submitted them to the Department, that he had “complete faith” in the documents his family had provided and that he had no intention to mislead or cheat the Department. He explained that his brother had bought a property in his mother’s name and had withdrawn funds from the fixed deposit to complete the transaction. He claimed that although his mother owned the Bank account, his brother carried out all transactions for her as she was uneducated and naïve. He claimed that his mother did not understand the consequences of their action when she gave consent to the withdrawal of the funds. The Applicant sought the opportunity to provide proof of an alternative source of funds. He provided further documentation, including an offer of financial support from a cousin in Australia.
The Applicant also provided two affidavits from his mother on 23 July 2013 in support of his claim that a particular property in India had been purchased in May 2012 in the mother’s name and that she was illiterate and had no formal education.
The Applicant was invited to and attended a Tribunal hearing on 28 August 2013. A transcript of the Tribunal hearing is in evidence before the Court as an annexure to the Applicant’s affidavit of 20 May 2014. In addition to the Applicant, his cousin and the manager of a supermarket in which the Applicant worked in Australia gave evidence to the Tribunal in relation to circumstances relied on by the Applicant in support of the contention that the Tribunal should waive the requirements of PIC 4020. The Applicant also provided the Tribunal with a letter of support from the director of the supermarket.
The Tribunal Reasons
It is apparent from the material before the Court and the Tribunal decision that an initial issue arose as to the validity of the application for review, as it appeared to have been lodged outside the time provided for in the Migration Act 1958 (Cth) (the Act). However in its reasons for decision the Tribunal expressed the view that in all probability the decision had not been properly notified to the Applicant by email and that this had likely resulted in the notification not being correctly received. It found that the application had been lodged within the time allowed.
The Tribunal stated that the issue on review was whether the Applicant met PIC 4020 as required by cl.572.224 in Schedule 2 to the Regulations. The Tribunal summarised the requirements of PIC 4020 and referred to the fact that the requirement could be waived in specified circumstances.
In relation to the issue of whether there was no evidence that the Applicant had given or caused to be given a bogus document or information that was false or misleading in a material particular in relation to the application for a visa (as required by subclause (1) of PIC 4020), the Tribunal referred to the definitions of “information that is false or misleading in a material particular” in PIC 4020(5) and of “bogus document” in s.97 of the Act. It found that the requirement not to provide a bogus document or false or misleading information applied whether or not the document was provided by the applicant knowingly or unwittingly and referred to Vyas & Anor v Minister for Immigration & Anor [2012] FMCA 92.
The Tribunal found that in this case the information in question related to financial evidence put forward to satisfy the requirements for the student visa sought. It observed that, as noted in the s.359A letter, in response to a Departmental request for information the Applicant had provided evidence of the fixed deposit described above in the name of his mother showing a balance of INR 450,000 and that he had also provided an affidavit of support of 12 September 2012 in which his brother had declared that such fixed deposit was then held by his mother. It recorded that when the Department sought to verify this information it was advised by the Bank that the relevant fixed deposit had been closed since 22 May 2012.
The Tribunal described its explanation to the Applicant of the relevance of this information, observing that it may cause it to find that the Applicant had provided information that was false or misleading in a material particular because the affidavit of support from his brother was made after the fixed deposit was closed, but he had declared on 12 September 2012 that the deposit was still held by his mother.
The Tribunal continued:
The applicant before the department and the tribunal has contended that he was unaware that the information was false or misleading because he was not aware that his brother in India has used the money from the fixed deposit to assist in a purchase of property in India. The applicant has not indicated that the fixed deposit was in fact held as claimed at the time of the declaration by his brother and the provision of this to the department.
Despite the fact that the applicant was not aware that the information was false or misleading in a material particular, it is clear that it was. It was directly related to the financial requirements at cl.5A405 and provided for the purpose of satisfying the criterion prescribed at cl.572.223(2)(a). It was false and misleading because it indicated that the money deposit evidenced in May 2012 continued to be in existence in September 2012 which was not the case. Were it known that the money deposit was not available to support the applicant he would not have satisfied the relevant provisions on this basis.
There is therefore evidence that the applicant has provided information that is false or misleading in a material particular in relation to the application for the visa.
The Tribunal then addressed the issue of whether the requirements of PIC 4020 should be waived. It recorded the Applicant’s contentions that he had developed a close relationship with his niece and was a support to his “brother’s” family who were settled in Australia and that he fulfilled a valuable role through his employment with a particular named supermarket.
In relation to the first of these claims, the Tribunal referred to the evidence of the Applicant and his cousin (whom the Applicant had referred to as his brother) in writing and to the Tribunal that the Applicant had lived with his cousin’s family for some time in Australia and that he currently lived nearby. It recorded his claim that he had a very close relationship with the cousin’s daughter, that he took her places and provided some child care assistance, particularly when his cousin worked on weekends. The Tribunal acknowledged that the cousin had also provided evidence of his financial circumstances which the Tribunal found was consistent with his claim that he would support the Applicant’s continued study in Australia.
The Tribunal accepted that a close familial relationship had apparently developed between the Applicant and his cousin’s family. However it observed that the Applicant had moved from their home and had established himself separately. It found that this suggested a lessening of the bond in recent times. The Tribunal accepted that the Applicant’s young relative would no doubt miss him and that he provided some benefit to the family through childcare. However it found that the family had access to other forms of childcare if the Applicant departed Australia. It recorded that they were a couple bringing up a family but did not believe that having to meet these obligations without a third relative available constituted compassionate or compelling circumstances which would justify the grant of the visa sought or that issues of such a close familial nature constituted compelling reasons affecting Australian interests more broadly.
In relation to the claims made about the Applicant’s employment, the Tribunal accepted that the Applicant was employed by a particular supermarket in Australia and that he was clearly highly valued by that organisation. It acknowledged that the Applicant’s skills, including his leadership and management role among employees and his language skills in a major market for the employer, had been attested to in written and oral evidence from the director and the manager of the supermarket.
However the Tribunal found that the evidence before it was that the supermarket had more than 30 employees and that the Applicant’s capacity to work would be limited if he were granted a student visa. It also had regard to the fact that in recent times, when the Applicant had not had the right to work in Australia for a period of some months, while the employer had contacted the Applicant about some issues, it had nonetheless been capable of continuing trade. In addition, the Tribunal found that the supermarket had traded for some period before the Applicant’s employment and that although this may have been on a reduced scale, it did not accept that the Applicant’s skills were such that they could not reasonably easily be replaced from the Australian labour market.
The Tribunal continued:
The visa sought is one for the purpose of study in Australia. Considered overall the tribunal does not believe that the circumstances amount to compelling circumstances affecting the interests of Australia. The employer would, in the tribunal’s view, be able to continue to trade and offer employment to Australian citizens and permanent residents and there is nothing which indicates that his skills are of a scarce or unusual nature such that they could not be replaced. While there was some evidence of a transient workforce and that there was difficulty in the short term to replace the applicant’s skills in the past, the reality is that he occupied no unique position within the organisational structure, has not different job title to many other employees and is merely a senior staff member. While some aspects of his language skills are apparently useful in ordering and relationships with suppliers the tribunal does not accept that the circumstances rise to being compelling circumstances affecting the interests of Australia which would justify the granting of the visa sought.
For the same reasons, the Tribunal did not believe there were compelling or compassionate circumstances affecting a relevant Australian citizen, permanent resident or New Zealand citizen (either the owners or investors in the business or other employees) such as to justify the grant of the visa.
The Tribunal also considered the Applicant’s evidence of suffering from and being treated for depression over time. However it found that this affected him personally and that there was nothing that appeared to give rise to interests affecting either Australia generally or the interests of a relevant citizen or resident. The Tribunal was satisfied that the Applicant had been able to give evidence regarding his application, both in writing and orally.
The Tribunal was not satisfied that the fact that the Applicant had been studying in Australia for some period and had paid all his relevant fees gave rise to relevant circumstances which would justify the grant of the visa. It observed that he had obtained a benefit from the overseas study program in Australia and that he would leave Australia with some qualifications evidencing such study. While the Tribunal acknowledged that the Applicant may wish to undertake further study in Australia, it found that this did not give rise to relevant compelling circumstances affecting the interests of Australia or compelling and compassionate circumstances affecting a relevant citizen or resident.
The Tribunal observed that it was unfortunate that the Applicant’s relationship with his brother in India appeared to have suffered as a result of the provision of the relevant information and the brother not wishing to communicate with the Applicant, but found that this was not a relevant circumstance affecting the interests of Australia or a relevant citizen or resident which would justify the grant of a visa to the Applicant.
The Tribunal concluded that the Applicant did not satisfy PIC 4020 for the purposes of cl.572.224(a) in Schedule 2 to the Migration Regulations and that as all relevant subclasses of Student visas required satisfaction of PIC 4020 the Applicant must be refused the grant of a student visa.
The Tribunal affirmed the delegate’s decision not to grant the Applicant a student visa.
This Application
The Applicant sought review by Application filed in this Court on 30 September 2013. There are three grounds in the Application. The first two grounds relate to the Tribunal’s findings in the context of its consideration of whether to waive PIC 4020 about the Applicant’s claims and the evidence about his employment situation. They are as follows:
1. The Tribunal is of the openion (sic) that the position of the applicant is not a unique (sic) within the organisation. This does not seem to be the correct assessment of the situation. Applicant has unique qualities which is affirmed by the Owner and Business Manager.
2. The business has advertised the position but could not find a suitable replacement. This has been affirmed by the Business manager of the firm in person before the MRT Member.
In written submissions the Applicant referred to the fact that the supermarket manager had attended the Tribunal hearing and given evidence about his “importance to the supermarket”. He contended that the manager had given evidence that the company was “badly in need of [his] service” and was willing to sponsor him, that it was a well-established business and that the manager’s presence at the hearing underlined his importance to the company. In addition, insofar as the Tribunal was said to have mentioned that the Applicant’s skills and position could be easily replaced, it was submitted that, as was attested to by the manager, the supermarket had advertised to replace the Applicant’s position but had not found a suitable replacement.
The Tribunal considered the Applicant’s claims and the oral and written evidence before it in relation to his role with the supermarket. It acknowledged that the Applicant was highly valued by the supermarket and that he had skills attested to by the witnesses (including having language and management skills). However it also correctly referred to the evidence about the Applicant’s position within the organisational structure.
As submitted by the First Respondent, the Applicant’s disagreement with the Tribunal’s conclusions in this respect is no more than an allegation of a wrong finding of fact by the Tribunal. It is not such as to demonstrate a jurisdictional error (see Abebe v The Commonwealthof Australia (1999) 117 CLR 510; [1999] HCA 14 at [137]). The Tribunal findings were open to it on the material before it for the reasons which it gave. It cannot be said that its reasoning in this respect lacked “an evident and intelligible justification” (see Minister for Immigration and Citizenship v Liand Another (2013) 249 CLR 332; [2013] HCA 18 at [76]). Ground 1 is not made out.
As to the claim in ground two that the supermarket had advertised but could not find a suitable replacement, in its reasons for decision the Tribunal referred to the number of employees, the limits on the Applicant’s capacity to work as the holder of a student visa and the evidence (from the manager) about how the business had operated without the Applicant. Despite the manager’s claim that they needed the Applicant “badly”, it was open to the Tribunal to conclude that the Applicant’s skills were not such that they could not be easily replaced within the Australian labour market and that they were not so scarce or unusual that they could not be replaced.
The Tribunal considered the situation on the material available at the time of its decision. The manager had told the Tribunal he had hired about three people when the Applicant was not there for a couple of months but that their suppliers did not want to deal with anybody other than the Applicant. The Tribunal acknowledged that there had been some difficulty in the short term to replace the Applicant’s skills in the past. However it had regard to the particular nature of his position and employment. The Tribunal did not accept that the Applicant’s skills were such that they could not reasonably easily be replaced from the Australian labour market. In making such findings the Tribunal observed that there was nothing to indicate that the Applicant’s skills were of such a scarce or unusual nature that they could not be replaced. Such findings were open to the Tribunal on the material before it for the reasons it gave. The Applicant’s disagreement with the Tribunal’s assessment and findings in this respect does not establish jurisdictional error.
Further, insofar as in written submissions the Applicant sought to rely on events that were said to have occurred after the Tribunal decision (such as whether the supermarket had advertised or been able to find a suitable replacement in more recent times) such claims do not establish jurisdictional error on the part of the Tribunal. Ground two is not made out.
The third ground in the application is as follows:
Applicant (sic) Niece is an Australian Citizen and she has a special bond with the Applicant. She is emotionally attached to the applicant and considers him as a “God-Figure”. He stays with family most of the time and meets her everyday (sic).
This ground seeks merit review. The Tribunal considered the evidence of the Applicant and his cousin in relation to their relationship in Australia. It accepted that the Applicant had a very close relationship with the cousin’s daughter and that he provided some childcare. However it also found that his cousin’s family had access to other forms of childcare. The Tribunal did not believe that having to meet the obligations of a couple bringing up a family without a third relative available constituted compassionate or compelling circumstances justifying the grant of the visa. The Applicant’s disagreement with this reasoning or the Tribunal’s conclusion does not establish jurisdictional error, but merely challenges findings of fact that were open to the Tribunal. This ground is not made out.
Apart from the waiver aspect, the Applicant did not take issue with the Tribunal’s consideration of PIC 4020. However in written submissions Counsel for the First Respondent acknowledged that in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 the Full Court of the Federal Court found that information had to be “purposely untrue” for PIC 4020 to apply (see Trivedi at [21] and [29] – [44], in particular at [42] per Buchanan J with whom Allsop CJ and Rangiah J agreed at [1] and [56]). Buchanan J expressed the view that “an element of fraud or deception” was necessary and that the accusation of a false statement “potentially import[ed] some element of knowledge or intention on somebody’s part” (emphasis added) (at [33]). His Honour concluded that the purpose of PIC 4020 was to “deal with purposely untrue material” (at [42]). However the Full Court found that it was not necessary to show knowing complicity by a visa applicant (at [43] and [47] – [50] per Buchanan J).
Counsel for the Minister acknowledged that there was no explicit finding in this Tribunal decision (made prior to the decision in Trivedi) that the information provided by the Applicant’s brother was purposely untrue, but contended that it was implicit in the Tribunal’s findings of fact that the Tribunal was of this view.
It was pointed out that in Singh v Minister for Immigration and Border Protection [2014] FCA 850 at [23] – [24] White J considered there was a necessary implication in the Tribunal’s findings (in another decision made before Trivedi) that a submitted document was purposely untrue despite the absence of an express finding to that effect. Similarly in this case it was said to be open to the Tribunal to find that the brother’s affidavit provided to the Department by the Applicant contained information that was false or misleading in a material particular in the sense considering in Trivedi and that as in Trivedi “[t]he fact that a formal declaration to that effect was not made… [did] not alter the character of the document, or the information it contained” (Trivedi at [50] per Buchanan J).
I agree with this submission. In its reasons for decision the Tribunal referred to the information it had put to the Applicant in the s.359A letter and to its explanation of the relevance of such information. The Tribunal acknowledged that before the Department and Tribunal the Applicant had contended that he was unaware that the information was false or misleading because he was not aware that his brother in India had used the money from the fixed deposit to assist in a purchase of a property in India.
The Tribunal concluded that despite the fact that the Applicant was not aware that his brother’s affidavit of September 2012 was false or misleading in a material particular, it clearly was. The Tribunal correctly understood that “knowing complicity” of an applicant was not necessary (see Trivedi at [43]). The Tribunal had regard to the brother’s affidavit, which it found was false or misleading because it indicated that the fixed deposit in question continued to be in existence in September 2012 when this was not the case. Relevantly, it recorded that the Applicant had not indicated that the fixed deposit was in fact held as claimed at the time of the declaration by his brother or the provision of this information to the Department.
I am satisfied that it was implicit in such findings that the Tribunal was of the view that the Applicant’s brother’s affidavit was purposely untrue (and that the brother knew that it was false) insofar as it referred to the existence of the particular fixed deposit in question as at September 2012, when, on the Applicant’s own evidence, his brother had already (with the cooperation of his mother) used the money from the fixed deposit to assist in the purchase of a property in India. The brother must have known that the affidavit he provided to satisfy the financial requirements was untrue because (on the Applicant’s own evidence) the brother was the person who had caused the deposit in the name of their mother to be closed. The Tribunal found that the affidavit was provided for the purpose of satisfying the financial requirements criterion. It is clear from the content of the brother’s affidavit that it was provided for that purpose.
Hence, having regard to the Tribunal’s reasons for decision as a whole and in light of the information before the Tribunal referred to in its decision (in particular the Applicant’s acknowledgement to the Department and to the Tribunal that his brother had used the money that had been in the fixed deposit to assist in a purchase of a property in India at a time prior to the date on which his brother swore his affidavit) I accept that it was implicit in the Tribunal findings that the brother made a purposely false statement in September 2012. Hence no jurisdictional error of the nature discussed in Trivedi is apparent.
As no jurisdictional error has been established, the application must be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 15 October 2014
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