Trivedi v MIBP

Case [2014] FCAFC 42

FEDERAL COURT OF AUSTRALIA

Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42

Citation:

Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42

Appeal from:

Trivedi & Ors v Minister for Immigration, Multicultural Affairs and Citizenship & Anor [2013] FCCA 578

Parties:

BINA TRIVEDI, NIRAV YOGESHBHAI TRIVEDI and DARSH NIRAVBHAI TRIVEDI v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

File number(s):

NSD 1576 of 2013

Judge(s):

ALLSOP CJ, BUCHANAN J AND RANGIAH J

Date of judgment:

4 April 2014

Catchwords:

MIGRATION – provision of information that is false or misleading in a material particular – whether information must be provided knowingly – Public Interest Criterion 4020 – no jurisdictional error – appeal dismissed

Legislation:

Migration Act 1958 (Cth), ss 97, 100, 111
Migration Amendment Regulations 2011 (No. 1) (Cth)
Migration Regulations 1994 (Cth), Sch 2, cll 886.224, 886.225(a), Sch 4 Pt 1, criterion 4020

Cases cited:

Cameron v Holt (1980) 142 CLR 342
Construction, Forestry, Mining and Energy Union v Hadgkiss (2007) 169 FCR 151
Murphy v Farmer (1988) 165 CLR 19
Trivedi & Ors v Minister for Immigration, Multicultural Affairs & Citizenship & Anor [2013] FCCA 578
Vyas & Anor v Minister for Immigration & Anor [2012] FMCA 92

Date of hearing: 19 February 2014
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 56
Counsel for the Appellants: Mr M Gibian
Solicitor for the Appellants: Maurice Blackburn Lawyers
Counsel for the First Respondent: Mr G Johnson SC and Mr T Reilly
Solicitor for the First Respondent: Sparke Helmore Lawyers
Solicitor for the Second Respondent: Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1576 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

BINA TRIVEDI
First Appellant

NIRAV YOGESHBHAI TRIVEDI
Second Appellant

DARSH NIRAVBHAI TRIVEDI
Third Appellant
AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGES:

ALLSOP CJ, BUCHANAN J AND RANGIAH J

DATE OF ORDER:

4 APRIL 2014

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to ‘Minister for Immigration and Border Protection’. 

2.The appeal be dismissed with costs.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1576 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

BINA TRIVEDI
First Appellant

NIRAV YOGESHBHAI TRIVEDI
Second Appellant

DARSH NIRAVBHAI TRIVEDI
Third Appellant
AND:

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First Respondent

MIGRATION REVIEW TRIBUNAL
Second Respondent

JUDGES:

ALLSOP CJ, BUCHANAN J AND RANGIAH J

DATE:

4 APRIL 2014

PLACE:

SYDNEY

REASONS FOR JUDGMENT

ALLSOP CJ

  1. I have read the reasons for judgment of Buchanan J to be published. I agree with them and with the orders proposed by his Honour.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment…

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Trivedi v MIBP [2014] FCAFC 42
Case
[2014] FCAFC 42
Decision Date

CaseChat Overview and Summary

The case of Trivedi v MIBP involved the appellants, who had their visa applications refused, appealing the decision. The appellants' primary contention was that the information they provided regarding their IELTS test scores was false or misleading due to circumstances beyond their control, specifically involving an alleged misrepresentation by an IELTS supervisor. The appeal was heard by the Federal Court of Australia.

The central legal issue the court had to address was whether the provision of information that is false or misleading in a material particular requires the applicant to have knowingly provided such information. This issue was pivotal because, under the relevant legislation, the appellants' visa applications could be refused if there was a failure to provide truthful information at the time of the application. The court also needed to determine whether there was any jurisdictional error in the tribunal's decision-making process.

The court examined the evidence and submissions presented by the appellants, particularly the explanation given by the first appellant regarding the circumstances under which she provided the allegedly false IELTS results. The court found that the explanation given by the first appellant did not absolve her of responsibility for the false information provided. The court held that the requirement of the legislation did not necessitate that the provision of false information must be knowingly done; it was sufficient that the information provided was false or misleading. The court further determined that there was no jurisdictional error in the tribunal's decision, as the tribunal had correctly applied the law and considered all relevant evidence.

The Federal Court dismissed the appeal and ordered that the name of the first respondent be changed to 'Minister for Immigration and Border Protection' and that the appeal be dismissed with costs. This decision affirmed that the appellants' visa applications were correctly refused based on the provision of false information.

Orders

Orders of the court

1. The name of the first respondent be changed to ‘Minister for Immigration and Border Protection’.

2. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

ALLSOP CJ, BUCHANAN J
On 11 April 2011 the first appellant was notified by letter that the visa application had been refused for herself, her husband and their son. The reason given for the refusal was that the first appellant did not satisfy the mandatory requirement for the grant of a visa then contained in cl 886.224 of Schedule 2 to the Migration Regulations 1994 (Cth) which was in the following terms: 886.22 Criteria to be satisfied at time of decision… 886.224No evidence has become available since the time of application that the information given or used: (a) to meet the requirements of item 1136 of Schedule 1; or (b) to satisfy Subdivision 886.21; or (c) to satisfy clause 886.221; or (d) to obtain the skills assessment mentioned in subclause 886.223 (1); was false or misleading in a material particular. In essence, the information provided by the first appellant in relation to the IELTS test scores was found to have been “false or misleading in a material particular”. The first appellant’s application was assessed against alternative criteria but she was found not to satisfy those criteria. The Migration Review Tribunal The appellants then applied, on 13 April 2011, to the MRT for review of the delegate’s decision. The first appellant relied upon the achievement of the required results on 5 March 2011. She proffered the following written explanation for provision of the false results from India: The first IELTS I appeared for in India was on 7th March, 2009. The IELTS test centre was in Ahmedabad, the same city where I was based and was 20 mins drive from my Father in laws house. I was very much confident that I will pass this time but unfortunately I couldn’t pass and got Listening – 6.0, Reading – 6.0, Writing – 5.0 and Speaking – 6.5, and the result was again not as per the requirement (please see the result attached). But I didn’t give up and said to myself that I can still do it and started preparing again for the next date of IELTS which was 21st March, 2009 (please see the IELTS test registration acknowledgement attached). The IELTS test centre was in a different city this time called Rajkot which is approximately 4 hours drive from Ahmedabad, the city I was based. I took a public transport to travel there 1 night before the IELTS test and stayed at my Uncle’s place. Next day on 21st March 2009 I went to the test centre to appear for the exams which was approximately 15 mins drive from my Uncle’s place. As I had failed for the first exam I was bit worried about this exam because I had to bring my son to Australia who was in India for 2 years. I was bit nervous in the exam, though the question paper was bit easy. The Gentleman who was the supervisor in the examination hall came to me and asked why I was nervous. I told him the reason that I had failed few times before, and he said don’t worry and asked me to give him my old result dated 7th March 2009 and he will fix up the new result for me. When he said he will fix up I was bit happy and finished my exam in a relax mood. At the end of the exam I gave him my old result which I was carrying in my handbag. I handed over my old result to him and he said you will get your results for the exams dated 21st February [sic] in post as normal and you will pass the exam don’t worry. The supervisor introduced himself as an agent of IELTS body. So there was no point for me not trusting him. I was so happy and had travelled back to Ahmedabad on the same day. I enjoyed the remaining 15 days stay in India with family, friends and my son. (Emphasis added.)

Ratio Decidendi

Legal Principle Established

Established by: ALLSOP CJ, BUCHANAN J

In essence, the information provided by the first appellant in relation to the IELTS test scores was found to have been “false or misleading in a material particular”. The first appellant’s application was assessed against alternative criteria but she was found not to satisfy those criteria. The Migration Review Tribunal The appellants then applied, on 13 April 2011, to the MRT for review of the delegate’s decision. The first appellant relied upon the achievement of the required results on 5 March 2011. She proffered the following written explanation for provision of the false results from India: The first IELTS I appeared for in India was on 7th March, 2009. The IELTS test centre was in Ahmedabad, the same city where I was based and was 20 mins drive from my Father in laws house. I was very much confident that I will pass this time but unfortunately I couldn’t pass and got Listening – 6.0, Reading – 6.0, Writing – 5.0 and Speaking – 6.5, and the result was again not as per the requirement (please see the result attached). But I didn’t give up and said to myself that I can still do it and started preparing again for the next date of IELTS which was 21st March, 2009 (please see the IELTS test registration acknowledgement attached). The IELTS test centre was in a different city this time called Rajkot which is approximately 4 hours drive from Ahmedabad, the city I was based. I took a public transport to travel there 1 night before the IELTS test and stayed at my Uncle’s place. Next day on 21st March 2009 I went to the test centre to appear for the exams which was approximately 15 mins drive from my Uncle’s place. As I had failed for the first exam I was bit worried about this exam because I had to bring my son to Australia who was in India for 2 years. I was bit nervous in the exam, though the question paper was bit easy. The Gentleman who was the supervisor in the examination hall came to me and asked why I was nervous. I told him the reason that I had failed few times before, and he said don’t worry and asked me to give him my old result dated 7th March 2009 and he will fix up the new result for me. When he said he will fix up I was bit happy and finished my exam in a relax mood. At the end of the exam I gave him my old result which I was carrying in my handbag. I handed over my old result to him and he said you will get your results for the exams dated 21st February [sic] in post as normal and you will pass the exam don’t worry. The supervisor introduced himself as an agent of IELTS body. So there was no point for me not trusting him. I was so happy and had travelled back to Ahmedabad on the same day. I enjoyed the remaining 15 days stay in India with family, friends and my son. (Emphasis added.) The MRT conducted a hearing on 17 October 2012 which the first and second appellants attended and at which they gave evidence. At the hearing the first appellant repeated, in substance, the same version of events, which the MRT in its decision recorded as follows: 35.… The test centre on 21 March 2009 was in another city about four hours’ drive away. She was a bit stressed because she was worried that she had not been able to achieve the scores before. A supervisor at the test centre spoke to her and then said he would fix it up for her. She thought he was an official IELTS agent. She then relaxed and did the test. After finishing the test, she gave a copy of her previous IELTS report form to him. … (Emphasis added.)