Trivedi & Ors v Minister for Immigration, Multicultural Affairs & Citizenship & Anor
[2013] FCCA 578
•17 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRIVEDI & ORS v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP & ANOR | [2013] FCCA 578 |
| Catchwords: MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the provision of information that is false or misleading in a material particular must be provided knowingly in order to offend Public Interest Criterion 4020 – no jurisdictional error – application dismissed. |
| Legislation: Judiciary Act 1903 (Cth), s.39B Trade Practices Act 1974 (Cth) s.52 |
| Vyas v Minister for Immigration and Citizenship & Anor [2012] FMCA 92; Mudiyanselage v Minister for Immigration and Citizenship & Anor [2013] FCA 266; |
| First Applicant: | BINA TRIVEDI |
| Second Applicant: | NIRAV YOGESHBHAI TRIVEDI |
| Third Applicant: | DARSH NIRAVBHAI TRIVEDI |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3008 of 2012 |
| Judgment of: | Judge Emmett |
| Hearing date: | 12 June 2013 |
| Date of Last Submission: | 12 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 17 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr David Godwin |
| Counsel for the Respondents: | Mr Tim Reilly |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3008 of 2012
| BINA TRIVEDI |
First Applicant
| NIRAV YOGESHBHAI TRIVEDI |
Second Applicant
| DARSH NIRAVBHAI TRIVEDI |
Third Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Migration Review Tribunal (“the MRT”), dated 30 November 2012, affirming a decision of a delegate of the first respondent to refuse the first applicant a skilled residence visa. The second and third applicants’ applications were dependant on the outcome of the first applicant and neither made any other application in their own right. Accordingly, these Reasons refer only to the first applicant (“the Applicant”).
On 27 July 200, the Applicant applied for a Skilled (Residence Class VB) visa. In support of her visa application, the Applicant provided to the Department for Immigration and Citizenship (“the Department”) International English Language Testing System (“IELTS”) test results for a test allegedly sat for by the applicant in India on 21 March 2009.
It was a requirement of the Applicant’s visa application that she meet cl.886.213 of the Migration Regulation 1994 (Cth) (“the Regulations”) of the Migration Act1958 (Cth) (“the Act”) which mandates that the Applicant have competent English. Pursuant to Regulation 1.15C of the Regulations, this requirement is satisfied if the Applicant has achieved the requisite score in an IELTS test.
Further, pursuant to cl.886.225(a) of the Regulations, the Applicant must meet Public Interest Criterion 4020 (“PIC 4020”). Relevantly, PIC 4020 is as follows:
“Public Interest Criterion 4020 provides:
(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.
(2) The Minster 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 the application; the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(3) To avoid doubt, subclause (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 the information given by the applicant.
(4) The Minister may waive the requirement 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 .” (emphasis added)
On 1 December 2010, the Department wrote to the Applicant, informing her that adverse information had been received relating to her IELTS by way of online verification results. The online verification results demonstrated that the IELTS results submitted by the Applicant in support of her visa application were not correct. The Department’s letter invited the Applicant to comment on that information.
On 18 March 2011, the Applicant’s migration agent provided a second set of later obtained IELTS results to the Department in response to the Department’s letter dated 1 December 2010. Those results indicated that the Applicant had achieved the relevant score necessary to meet the Applicant’s requirements for the grant of her visa.
On 18 March 2011, the Department again wrote to the Applicant informing her that the Departmental checks in respect of the first IELTS results that accompanied the Applicant’s visa application revealed that the IELTS results provided by the Applicant were incorrect. The letter stated that evidence had become available since the time of the Applicant’s visa application that the information provided by her by way of the IELTS test results was false or misleading in a material particular. The letter informed the Applicant that, in the circumstances, she was unable to satisfy the requirements her visa. The letter then invited the Applicant to comment on that information.
On 21 March 2011, the Applicant’s migration agent emailed the Department in response to the Department’s letter, stating that the Applicant had submitted the incorrect IELTS test results in support of her visa application because “she was misguided by certain agents in India.”
On 11 April 2011, the Department wrote to the Applicant informing her that a delegate of the first respondent (“the Delegate”) had refused her visa application, together with the applications of the second and third applicants. The letter enclosed the Department’s decision that her visa application had been refused because, inter alia, the information given by the Applicant in support of her visa application, was false or misleading in a material particular, being the first set of incorrect IELTS test results.
The MRT decision
On 13 April 201, the Applicant lodged an application for review of the Delegate’s decision with the Migration Review Tribunal.
On 11 September 2012, the MRT wrote to the applicants informing them that the information provided by the Applicant had incorrect IELTS results and that the MRT may find that the Applicant had given or caused to be given to the relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to the visa application. The letter informed the applicants that if the MRT so found, it may not be satisfied that the Applicant met PIC 4020 and, if so, would not satisfy cl.886.225, being a mandatory requirement for the grant of the visa.
On 1 October 2012, the Applicant’s migration agent wrote to the MRT stating that the Applicant had not intentionally provided false and misleading material to the MRT and has since completed her IELTS test and passed it at the required level.
On 5 October 2012, the MRT wrote to the Applicant informing her that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to appear before the MRT to give evidence and present arguments relating to the issues in their case. The applicants were invited to attend a hearing on 17 October 2012.
On 27 October 2012, the Applicant’s migration agent again wrote to the MRT stating that the Applicant had no knowledge of any problems with her IELTS test results and that she did not intentionally mislead the Department. The letter also stated that the Applicant had no involvement and no control over the document regarding IELTS test results which was sent to her home in India and that if the document was found to be fraudulent, she had no involvement in perpetrating the fraud. The letter stated that the Applicant was unaware there was anything wrong with the IELTS test results until she received correspondence from the Department.
The MRT stated that PIC 4020 “does not contain a mental element” and that an applicant may have given, or caused to be given a bogus document or information that is false or misleading in a material particular either knowingly or unwittingly. The MRT then referred to Vyas v Minister for Immigration and Citizenship & Anor [2012] FMCA 92 (“Vyas”).
The MRT then recounted the history of the correspondence with the Applicant in relation to the provision by her of the incorrect IELTS test results.
Ultimately, the MRT found that PIC 4020 applies whether or not the document is provided by the Applicant knowingly or unwittingly, as stated at the commencement of its decision record. The MRT stated that once there is evidence that the Applicant has given a bogus document or information that is false or misleading in a material particular, PIC 4020 applies regardless of how such a document came into existence or came to be given. The MRT stated “it is, therefore, unnecessary to consider the applicant’s knowledge or otherwise when considering this aspect of PIC 4020.”
The MRT found that the incorrect IELTS test results on 21 March 2009 were given by the Applicant to the Department for the purpose of satisfying the criterion in clause 886.213. The MRT found that there was evidence before it that the Applicant gave or caused to be given to the first respondent information that is false or misleading in a material particular in relation to the Applicant’s visa application. As stated above, that information was the incorrect IELTS test results. As a consequence, the MRT found that the Applicant did not satisfy PIC 4020(1)(a). In light of that finding, the MRT determined that it was unnecessary for it to make a finding as to whether the Applicant had given or caused to be given a bogus document to the Department.
The MRT then considered whether or not it was possible to waive PIC 4020 and found that it was not because the Applicant did not meet that waiver requirements in PIC 4020(4).
On 17 December 2012, the Applicant filed an application for judicial review of the MRT’s decision.
The proceeding before this Court
At the commencement of the hearing, counsel for the Applicant, Mr David Godwin, confirmed that the Applicant relied on the ground in an amended application filed on 27 February 2013. The ground of that amended application is as follows:
“1. The Tribunal failed to complete the exercise of its jurisdiction
Particulars
PIC 4020 will be satisfied will be satisfied if there is no evidence that the applicant has given information to the department that is false or misleading in a material particular. The Tribunal considered that the requirements of PIC 4020 were engaged whether or not the applicant intended to mislead the department by providing the information. The Tribunal failed to make finding as to whether the applicant intended to mislead the department by supplying the information. On its proper construction PIC 4020 required such finding.”
At the heart of the Applicant’s submissions was a submission that PIC 4020 delivered a draconian result if it applied in circumstances where an applicant did not have an intention to mislead or deceive. It was conceded by the Applicant that she did not meet the waiver requirements in PIC 4020(4).In written submissions, Mr Godwin summarised those draconian results as follows:
“10. The construction favoured by the MRT means that the most minor errors in an application, innocently made and subsequently disclosed by the applicant, would lead to ineligibility for a visa and the Minister would not be able to exercise his discretion to waive the criterion.
11. Further, the consequences of failure to meet the criterion are not simply ineligibility for a visa, but a bar on any further visa with a PIC 4020 condition being granted to the applicant or any member of their family unit for 3 further years (PIC 4020(2)).
12. To summarise
(a) PIC 4020 applies where there exists “any evidence” that information supplied is false or misleading- its operation cannot be reversed by subsequent proof that the information was not false or misleading.
(b) PIC 4020 applies even if the applicant is the person who alerted the department to the false or misleading nature of the information- and this circumstance does not enliven a discretion to waive the criterion.
(c) If knowledge was irrelevant to PIC 4020 being enlivened there is no counterbalancing discretion to enable waiver of the condition where information is supplied innocently.
(d) PIC 4020 applies no matter how trivial the nature of the false or misleading information.
(e) The information need not be part of the reason why the person met the criteria for the grant of the visa.
(f) The consequence of PIC 4020 being enlivened is that the applicant and any members of their family unit fail to meet the criteria for the visa and are barred from being granted any visa which has a PIC 4020 condition for a further 3 years.”
Mr Godwin referred the Court to Murphy v Farmer [1988] HCA 31; (1988) 148 CLR 88 at 94, where the High Court of Australia found that the effect of the imposition of an automatic forfeiture as a penalty for a wrong entry in an invoice declaration could be “devastating and quiet disproportionate”. In that case, the High Court considered the proper approach to the construction of the words of the legislation requiring automatic forfeiture as a penalty for any false entry invoice declaration. The High Court concluded that the word “false” in the relevant section meant “purposely or intentionally untrue.”
Mr Godwin submitted that the operation of PIC 4020 is similar to the situation in Murphy v Farmer. He submitted that clear words to exclude intention should be stated in PIC 4020, if it was intended that intention to mislead was irrelevant its operation.
Mr Godwin then referred the Court to various sections of the Act where clear words are used to exclude inadvertent conduct from the operation of the sections. In particular, Mr Godwin referred to s.111 of the Act which stated:
“Cancellation provisions apply whether or not non-compliance deliberate
To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. “
Those sections relate to cancellation provisions. Mr Godwin submitted that the potentially draconian operation of the cancellation powers in ss.107, 108 and 109 were counter balanced by the first respondent’s discretion to cancel, which is expressed in broad terms so that the provision of innocent incorrect information disclosed by an applicant can be taken into account. Further, Mr Godwin submitted that the penalty provisions in ss.234 and 234A of the Act expressly provide for a mental element. Mr Godwin submitted that this does not indicate a statutory intention that no mental element is necessary unless expressly included. Mr Godwin submitted that if the case was otherwise, then there would be no “doubt” as to what it was that s.111 could be said to have been enacted to address.
Counsel for the first respondent, Mr Tim Reilly, submitted that neither PIC 4020 (1)(a), nor the definition of the “information that is false or misleading in a material particular” in PIC 4020(5), explicitly contain a mental requirement and that none should be read into it. Mr Reilly submitted that PIC 4020(1)(a) does not impose a penal or quasi penal provision, unlike in Murphy v Farmer. Mr Reilly also submitted that because PIC 4020(1)(a) is not a penal or quasi penal provision, therefore no presumption of a mental element should be implied into it.
Mr Reilly referred the Court to Construction Forestry Mining and Energy Union & Anor v Hadgkiss & Ors (2007) 169 FCR 151 (“Hadgkiss”) where Lander and Buchanan JJ held that it is not necessary to prove knowledge or intent on the part of a maker of a representation that may be false or misleading, as referred to in s298SC of the Workplace Relations Act 1966 (Cth), in order to establish a contravention. Buchanan J at 161 referred to the fact that the Workplace Relations Act, including the Schedule, contained a number of additional references to false or misleading statements, all of which required either proof or knowledge or recklessness. Lander J noted that the only provision in the Act or the schedule which did not in its terms require knowledge on the part of the maker of the false or misleading representation is s.298SC. In those circumstances, Buchanan J found that “the unavoidable inference is that parliament intended that the section would be contravened without proof of knowledge or intent on the part of the maker of the representation.”
In Hadgkiss, Buchanan J referred to the Trade Practices Act 1974 (Cth) as containing similar legislative provisions involving conduct that is misleading or deceptive which did not require knowledge as an essential element in making out a case of misleading or deceptive conduct constituted by a representation or by non disclosure.
Further, Tracy J in Mudiyanselage v Minister for Immigration and Citizenship & Anor [2013] FCA 266 at [30] found that the existence of a separate definition of words and phrases appearing in PIC 4020 tended strongly against a reading of PIC 4020 which would deny those definitions their full force and effect.
The explanatory memorandum to the Migration Amendment Regulations 2011 (No. 1) (Cth) where PIC 4020 was inserted is as follows:
“It is intended that the reference to “information which is false or misleading in a material particular” in the new subclause 4020(1) will capture any information which is false or misleading that the applicant provides if it is relevant to the purpose for which it is made, namely the purpose being the assessment of the applicant against any of the criteria for the grant of the visa.” (emphasis added)
Certainly, there is nothing in the Explanatory Memorandum statement to suggest that PIC 4020 is intended to incorporate an element of intentionality.
In Vyas, Judge Driver found that PIC 4020 was comparable to s.52 of the Trade Practices Act which prohibited misleading or deceptive conduct by a corporation without requiring an element of intentionality. Judge Driver referred to the importance of the consuming public not being mislead or deceived as out weighing the importance of restricting the civil liability of corporations as a rationale for the lack of a requirement of intentionality in a breach of s.52 of the Trade Practices Act. Further, in Vyas Judge Driver found that PIC 4020 is comparable to s.52 in that PIC 4020 seeks to ensure that an applicant for a visa truly fulfils the criteria for the visa. Judge Driver stated that the provision of a document that may be false or misleading information, left unchecked, enabled a person who fell short of the visa criteria nonetheless to be granted a visa. Judge Driver found that, in this respect, it does not matter whether the information is provided by the applicant knowingly or unwittingly. Judge Driver found that by using the words “given or cause to be given”, PIC 4020 should not be construed as importing a mental element.
I agree with Judge Driver’s conclusion that PIC 4020 should not be construed as importing a mental element.
I accept the first respondent’s submission that PIC 4020 is doing no more than clarifying the criteria that an applicant must satisfy for the grant of a visa. It is not imposing a penalty for a breach of some obligation. It neither creates a right nor takes away from any right. It is merely stating the mandatory nature of criteria to be met for the grant of a particular visa.
Further, I accept the submissions of counsel for the first respondent that the explanatory statement exposes an obvious policy goal to discourage the provision of false information in support of visa applications. I agree with counsel for the first respondent that the possibility of hypothetical unjust cases as suggested by the applicant may readily be thought to be outweighed by the need to discourage provision of false information in support of visa applications. I also accept that for the MRT to need to be positively satisfied in each case that the false information was provided knowingly by a visa applicant would significantly limit the practical application of PIC 4020, given that there would often be no objective evidence on the issue. I also accept Mr Reilly’s submission that the facts of this case illustrate that point.
In the circumstances, I am satisfied that the MRT correctly found that it did not need to make a finding as to the Applicant’s knowledge at the time of the provision of the false IELTS test report by the Applicant in support of the visa application.
Accordingly, there is no jurisdictional error in the MRT’s decision and, pursuant to s.474 of the Act, it is a privative clause decision.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 17 July 2013
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