TALWAR v Minister for Immigration

[2016] FCCA 2686

FEDERAL CIRCUIT COURT OF AUSTRALIA

TALWAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2686

Catchwords:
MIGRATION – Application for judicial review – Skilled (Provisional) (Class VC) visa – whether applicant gave false and misleading information to Department – where Tribunal found work experience reference was fraudulent – where Tribunal found applicant gave bogus document to Trades Recognition Australia – where findings made by Tribunal were open upon the evidence before it – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.359

Migration Regulations 1994 (Cth), cl.485.224

Cases cited:

Minister for Immigration and Citizenship v SZKRT & Anor [2013] FCA 317

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125

Applicant: GAUTAM TALWAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 988 of 2015

Judgment of: Judge McNab

Hearing date: 6 October 2016

Date of Last Submission: 6 October 2016

Delivered at: Melbourne

Delivered on: 26 October 2016

REPRESENTATION

Counsel for the Applicant: Mr Aleksov of Counsel

Solicitors for the Applicant: Clothier Anderson Immigration Lawyers

Counsel for the Respondents: Mr Brown of Counsel

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The Second Respondent’s name be amended to ‘Administrative Appeals Tribunal’.

2. The applicant’s application filed 6 May 2015 be dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $3416.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 988 of 2015

GAUTAM TALWAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an amended application filed on 8 April 2016, the applicant seeks judicial review in relation to a decision of the Migration Review Tribunal (as it then was) made on 1 April 2015 under the Migration Act 1958 (Cth) (“the Act”). The Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a Skilled (Provisional) (Class VC) Visa (“the visa”).

2. The applicant relied on one ground of review in the amended application, that the Tribunal failed to comply with s.359(1) of the Act, as it failed to have regard to evidence that was centrally relevant to an issue in the review, such as to give rise to an inference of a constructive failure to exercise its jurisdiction.[1]

   [1] Applicant’s Outline of Submissions, filed 9 September 2016 at [18]

3. The Tribunal affirmed the decision of a delegate of the Minister not to grant the applicant the visa on the basis that the applicant did not satisfy cl.485.224 of the Migration Regulations 1994 (Cth)

   
   

   (“the Regulations”) which required the applicant to satisfy

   
   

   Public Interest Criterion (“PIC”) 4020.

4. The applicant also needed to satisfy a requirement that in order to be granted the visa, he had to be subject of a positive skills assessment for his nominated occupation. The applicant sought to rely on a skills assessment from Trades Recognition Australia (TRA) for the occupation of pastry chef.

5. One of the requirements of the TRA for the positive skills assessment was that the applicant must have 900 hours of relevant work experience. The applicant submitted references from O’Heas Bakery & Deli (“O’Heas”) to TRA stating that he had completed 910 hours of work at O’Heas as a pastry cook.

6. PIC 4020 relevantly provided:

   (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.

   …

   (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.

7. At the relevant time, s.97(c) of the Act defined ‘bogus document’ as:

   a document that the Minister reasonably suspects is a document that:

   (a)purports to have been, but was not, issued in respect of the person; or

   (b)is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)was obtained because of a false or misleading statement, whether or not made knowingly.

8. The central tenant of the applicant’s application is that the Tribunal failed to comply with the requirements of s.359(1) of the Act which provides:

   In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

9. The Tribunal obtained information in the form of a detailed Summary of Agreed Facts relevant to the prosecution of a “Mr X” and

   
   

   a statement made by Mr X. The Court understands that there is

   
   

   a suppression order by the County Court of Victoria in relation to the publication of details of Mr X’s identity. Mr X had pleaded guilty to fabricating work references for migration purposes, selling them to visa applicants and arranging for employers to participate in the fraudulent scheme. One of the employers who participated in the scheme with

   
   

   Mr X was O’Heas.

10. The Tribunal concluded that the applicant did not complete 900 hours of work for O’Heas, but had obtained a work reference to the effect that he had done so.[2] At [56], the Tribunal concluded:

    The Tribunal is not satisfied that there is no evidence before it that the applicant gave to the Minister, to an officer and to the Tribunal a bogus document within the meaning of s.97(c) namely the TRA assessment TRA 08/107211146, obtained on the basis of a false statement that he completed 900 hours of work at O’Heas.

    [2] Court Book 364 at [53]

11. It then concluded at [57] that the applicant did not meet the requirements of cl.4020(1).

12. The Tribunal noted in its decision that:

    a)the applicant provided a reference from Mr Arena (the manager of O’Heas) stating that he had worked 910 hours at O’Heas;[3]

    b)that Mr X had given evidence that O’Heas was one of the businesses he used in his scheme that involved the provision of false work references;[4]

    c)according to the Department of Immigration, the letter of reference which the applicant submitted to TRA is "comparable to those manufactured by Mr X";[5]

    d)at the Tribunal hearing, the applicant acknowledged that he had met Mr X and that Mr X was a teacher at a college where the applicant was studying;

    e)the Tribunal found that it was implausible that the applicant did not know that he could apply for a Visa subclass 485 at the time that he was working for free, voluntarily at O’Heas.[6]

    f)the Tribunal found that it was implausible that the applicant was told by Mr Arena that there was no further work for him (on a voluntary basis) once his 900 hours were completed, in light of the glowing reference that Mr Arena had provided;[7]

    g)the applicant gave inconsistent, contradictory evidence about why he continued to work for free at O’Heas after he had obtained paid employment at Chefs on the Run;[8]

    h)the Tribunal gave reasons at [43] why it did not accept the applicant's explanation as to why supporting information had been lost.

    [3] Tribunal’s decision at [12] and [13]

    [4] Tribunal’s decision at [18] and [51]

    [5] Tribunal’s decision at [19]

    [6]Tribunal’s decision at [25] and [38]

    [7]Tribunal’s decision at [42]

    [8] Tribunal’s decision at [39] – [41]

13. At [49] - [50] the Tribunal stated (replacing the real name of Mr X.):

    49.The Tribunal does not have before it evidence which directly links the applicant to a false reference produced by Mr X. There was no reference letter found in Mr X's position with the applicant's details such as name and date of birth. The Department of Immigration confirmed on 23 October 2014 that no exhibits relating to the applicant were seized during the search on Mr X's premises.

    50.However, the definition of bogus document in s.97 of the Act does not require the requisite suspicion to be formed on the basis of information of any particular quality. There need only be a reasonable suspicion of a document being bogus. Thus when the definition in s.97(c) is read in conjunction with cl.4020(1), the criterion requires that there is no evidence before the Tribunal that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority document that the Minister reasonably suspects is a document that was obtained because of a false or misleading statement.

    51.The Tribunal gives weight to Mr X's guilty plea in relation to the manufacture and sale of hundreds of false references, including in respect of students who pretended to have worked at O’Heas; and to the fact the applicant studied at

    
    

    Della International College where Mr X used to teach.

    52.The Tribunal considers that Mr X would have had no reason to plead guilty to manufacturing hundreds of false documents, including some in relation to O’Heas, if he did not in fact do so. By contrast, the applicant has an obvious interest in maintaining his innocence and claiming that he did complete 900 hours of work at O’Heas.

14. The Tribunal then reached its conclusion at [53] which is referred to above.

15. The applicant submits that in his Statement of Agreed Facts,[9] Mr X had disclosed his methodology, where he said in summary that he would prepare false documents on a computer, print two copies and give one to the employer and one to a migration agent, and save an electronic version for himself on a USB. The applicant submitted that upon considering that evidence, the Tribunal should have inferred that Mr X always used this technique. Therefore, in circumstances where search warrants were executed on Mr X’s premises and possessions and no reference was found to the applicant's name, the strong inference was that the Tribunal had not had regard to the information provided in relation to Mr X.[10]

    [9] Court Book 185 - 214

    [10] Applicant’s Submissions at [17]

16. It is apparent from an analysis of the arguments that the applicant is seeking to have the Court engage in an assessment of the material before the Tribunal in order to review the fact-finding exercise embarked on by the Tribunal. Essentially the applicant's submission is that the Tribunal failed to draw an inference from the facts available to it and that gives rise to the basis for the ground that the Tribunal failed to have regard to information available to it in making the decision on review.

17. The difficulty with this submission is that it completely ignores the findings of fact made by the Tribunal leading to the conclusion it reaches at paragraph 53. It also ignores the specific reference by the Tribunal to the fact that the applicant was not directly linked to a false reference produced by Mr X at [49].

18. The Tribunal:

    a)made findings of fact from [37] – [47];

    b)noted that there was no evidence to directly link the applicant to Mr X [49]; and

    c)excluded the inference now sought to be drawn by the applicant.

19. The difficulty with the applicant’s submission is that it asks the court to effectively make a finding of fact that the Tribunal ought to have accepted that the statement of Mr X is true and correct and that he always used the technique that he outlined in his statement. As I made plain to counsel for the applicant in the course of the hearing, that submission would require the Tribunal to have accepted that the rogue, Mr X, always told the truth, which is plainly not the case given that he had submitted many hundreds of false documents in support of a criminal scheme. Further, the drawing of inferences is fundamentally the part of the fact-finding exercise of the Tribunal, as is the consideration of circumstantial evidence.[11] The weight to be given to evidence is a matter for the Tribunal. It is not permissible for the court to engage in merits review.[12]

    [11] See Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125

    [12] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272

20. I do not accept the submission made by the applicant that the facts in this case are analogous to those in Minister for Immigration and Citizenship v SZKRT & Anor.[13] In that case, it was held in relation to the operation of s.359(1) of the Act that the Tribunal had fallen into error in failing to consider critically relevant evidence. In that matter, the applicant claimed to have studied Persian and had an academic transcript from a Punjabi university saying that he had. The Tribunal found the applicant’s claims to have studied Persian to have been implausible (because he could not speak or understand the Persian language) but did not refer in its reasons to the academic transcript.

    [13] [2013] FCA 317 per Robertson J

Conclusion

1. In the present case, the Tribunal referred to the evidence said to be of critical importance, considered it specifically and rejected the inference that is now said to arise from that material.

2. On the basis of the foregoing I am of the view that there is no jurisdictional error involved in the decision-making process of the Tribunal. I make orders dismissing the application and order that the applicant pay the first respondent's costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 26 October 2016