TSELEBROVSKAYA v Minister for Immigration
[2009] FMCA 1135
•20 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TSELEBROVSKAYA v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 1135 |
| MIGRATION – Review of Migration Review Tribunal decision – visa – cancellation – information contained in an expert report, including the expert’s opinion, is information for the purposes of s.359A – there is no exception to the operation of s.359A(4)(b) for expert reports – information relied on to ground an intermediate finding of fact which is the reason or part of the reason for the Tribunal’s affirmation of the delegate’s decision is not information governed by s.359A(1). |
| Migration Act 1958, ss.101, 103, 109, 359AA, 359A, 424A, 474 Migration Regulations 1994, reg.2.41 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZEWL v Minister for Immigration & Citizenship [2009] FCA 209 Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 |
| Applicant: | VALERIYA TSELEBROVSKAYA |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1761 of 2009 |
| Judgment of: | Cameron FM |
| Hearing date: | 3 November 2009 |
| Date of Last Submission: | 3 November 2009 |
| Delivered at: | Sydney |
| Delivered on: | 20 November 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Michael Jones |
| Counsel for the First Respondent: | Mr J. Smith |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1761 of 2009
| VALERIYA TSELEBROVSKAYA |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Russia. On 21 November 2005 she was granted a Skilled – Independent (Migrant) (Class BN) subclass 136 visa. That visa was subsequently cancelled by a delegate of the Minister on 17 November 2008 pursuant to s.109 of the Migration Act 1958 (“Act”). The applicant then applied to the Migration Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
Subdivision C of div.3 of pt.2 of the Act imposes obligations on non-citizens to provide accurate information in visa application forms and provides for a discretionary power to cancel visas if incorrect information is supplied. Relevantly in this case, s.101 of the Act provides:
101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
Section 103 provides:
103 Bogus documents not to be given etc.
A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented or provided.
Section 109 allows the Minister to cancel a visa if the applicant has failed to comply with, amongst other provisions, ss.101 and 103 of the Act. It relevantly provides:
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa. …
The prescribed circumstances referred to in s.109(c) are found in reg.2.41 of the Migration Regulations 1994 (“Regulations”) which provides as follows:
2.41 Whether to cancel visa — incorrect information or bogus document (Act, s 109 (1) (c))
For the purposes of paragraph 109 (1) (c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
(d) the circumstances in which the non-compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non-compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non-compliance;
(j) any breaches of the law since the non-compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Background facts
The department
The applicant applied for the visa the subject of these proceedings on 17 May 2005. In her visa application form, the applicant claimed (in answer to question 53) that she had lived at a single address in Russia since May 1995 and (in answer to question 56) that she had been employed since 1992 as a pastry cook for a company called Politech. In support of her application, she submitted a curriculum vitae which indicated that she had worked at Politech’s subsidiary firm, Lakomka Confectionary (“Lakomka”), since September 1998. The applicant also submitted a work reference and a work book indicating that she had been promoted to the position of chief pastry cook/confectioner in 1998.
On 8 October 2008 the Minister’s department issued the applicant with a Notice of Intention to Consider Cancellation (“NOICC”) on the basis that:
a)the department considered that the applicant had breached s.101(b) of the Act:
i)by failing to indicate in her application form that she had lived in the United States from 1998 to 2004 (question 53);
ii)by stating in her application form that she had worked for Politech from 1992 to “current” (question 56) when from 1998 to 2004 she was not living in Russia and could not therefore have been employed as claimed;
iii)by stating in her curriculum vitae that she had worked for Lakomka from September 1998 onwards when from 1998 to 2004 she was living in the United States and could not have been employed as claimed; and
b)the department considered that the applicant had breached s.103 of the Act by providing two bogus documents.
In her response dated 8 November 2008 the applicant made the following claims:
a)she had provided incorrect information in her visa application because she felt that she had no choice and feared that she would not get a visa to a safe country;
b)whilst living in the United States, she entered into a relationship with “Mr A”, a person of ex-Soviet background. She intended to depart the United States before the expiry of her visa, however, Mr A turned violent and locked her in his home, preventing her from leaving. He abused her and made her a sex slave and she was unable to contact the police;
c)she managed to escape in 2004 and returned to Russia but Mr A used his criminal connections to make her life in Russia difficult. She decided to leave Russia and find a safe country;
d)she did have qualifications as a pastry cook and actually worked in that capacity for Lakomka from 1992 to 1998 and then from 2004 until the time she migrated to Australia;
e)she has an occupation and other attributes to satisfy the criteria for a subclass 136 visa and would have been granted the visa if she had provided the correct information; and
f)she has contributed to the Australian community.
As already noted, the applicant’s visa was cancelled by a delegate of the Minister on 17 November 2008.
The Tribunal
The applicant then applied to the Tribunal for a review of the delegate’s decision. Through her migration agent, the applicant supplied a number of documents to the Tribunal. Amongst them was a report from a consultant psychiatrist dated 28 February 2009 regarding the applicant’s psychological condition.
The applicant made the following additional claims at a hearing before the Tribunal:
a)her workbook and her work reference were both genuine. She was promoted to the position of chief pastry cook whilst she was in the United States as the company wanted to fill the position internally and knew that she was due to return from her holidays shortly. Also, she was never sacked. She remained employed with the company during her six-year residence in the United States and recommenced her work with the company when she returned to Russia at the end of 2003;
b)Mr A allowed her to leave the United States after she promised to meet him later in Russia. However, after she arrived in Russia she ended the relationship. Afterwards, she received threatening emails and phone calls. She also received phone calls from the Russian police who told her that she was under investigation and needed to give herself up;
c)she tried to go to the Russian police but they could not do anything without specific evidence. She also felt that they were laughing at her;
d)she implied that she did not seek assistance from the authorities in the United States because she was scared about her status, having remained there illegally after the expiry of her visa. She was scared that Mr A would report her to the authorities;
e)she has no home, job or security in Russia and did not wish to return. Mr A was still trying to ruin her life and she was not sure what he was capable of. She has received an email with insults even whilst in Australia; and
f)she is currently employed in Australia as a full-time consultant and her employer was spending time and resources to develop her skills. She sees Australia as her home.
The Tribunal advised the applicant during the course of the hearing that the Minister’s department had had discussions with the General Director of Politech who indicated that the company was essentially involved in construction projects. The General Director advised the department that the company had, at one point, established a bakery (not a confectionary business) although the venture did not last long and he could not remember whether it had a specific name. In addition, the bakery was not actually part of Politech. The General Director also indicated that the work reference submitted by the applicant with her visa application form was not under his signature and the reference number related to another document.
The Tribunal advised the applicant that on a subsequent contact with the Minister’s department the General Director attempted to retract his previous information by stating that another person had signed the work reference on his behalf. However, he could not explain why that person signed the document on his behalf in November 2004 when, according to his own evidence, they had only had authority to do so from January 2006. The General Director also confirmed that the applicant had worked at Lakomka but stated that Lakomka operated under a company called “Reton-Sib” not Politech.
In response to a s.359A notice dated 17 April 2009, the applicant claimed that:
a)she had “no option” but to omit from her application the fact that she had lived in the United States from 1998 to 2003 as she needed to leave Russia;
b)she included the period of employment while she was in the United States because she did not understand how the term “employment” might be described in the Regulations. She did not intend to mislead the department;
c)the work reference from Politech was not a bogus document as it was prepared on the basis of her work book. The General Director and a senior accountant signed the letter on the basis of information provided by the applicant’s senior colleague;
d)the economic and financial environment in Russia was harsh and the company perhaps operated in such a way that led the General Director to conceal information from the Minister’s department. It was possible that the company was involved in an action to avoid taxes and the General Director may have been afraid to disclose real information to an unknown person; and
e)it appeared that the company structure had changed during its existence and that different people had authority to sign work reference letters.
The Tribunal also received oral evidence from two of the applicant’s friends.
Tribunal’s decision
The Tribunal found that the applicant had breached s.101 of the Act in the way described in the NOICC of 8 October 2008, noting that she had resided in the United States from 1998 to 2003/2004 and had therefore provided incorrect information in response to question 53 of her visa application form. The Tribunal also found that the applicant had not been employed at Lakomka as a pastry cook from 1992 to the date of application and had thus provided incorrect information in answer to question 56. In this latter connection, the Tribunal noted that:
a)it was highly implausible that the company would have continued to maintain her status as employed, and in such a senior position, over a period of six years even though she was absent from Russia;
b)it was highly implausible that her employer would state in an employment reference that the applicant had worked in a number of positions from 1992, including as a chief confectioner from 1998, if she had been absent from the company from 1998 to 2004;
c)it was highly implausible that her workbook would provide details of her transfer to the position of chief pastry cook and record her ongoing employment in that position when she was in the United States;
d)it did not accept her various explanations. It found that in her answer to question 56 she sought to convey that she had been working as a pastry cook for Lakomka from 1992 until the date of application;
e)in any event, the Tribunal found that Lakomka never existed or operated as a confectionary business that was a subsidiary of Politech or of any other company, noting that:
i)if Politech had a subsidiary operating throughout the period of the applicant’s claimed employment there, it was not credible that the General Director would not have been able to provide details of this during the initial contact;
ii)the General Director initially advised the department that the signature on the reference number was not his own and that the reference number on the document related to another document. The Tribunal considered this to be a strong indication that the document was not genuine;
iii)the General Director’s subsequent evidence was highly implausible and contradicted his earlier advice to the department. He was unable to adequately explain these discrepancies or to refer to any independent evidence regarding the existence of Lakomka;
iv)if Lakomka did operate under “Reton-Sib” rather than Politech, it was not credible that the applicant’s workbook would not specify this.
Based on its findings in relation to the information provided by the applicant in answers to question 53 and 56 of the application and in her curriculum vitae, the Tribunal found that the applicant had breached s.101(b) in the way described in the NOICC of 8 October 2008 and thus grounds existed for the cancellation of her visa under s.109 of the Act. Given its findings on this point, the Tribunal found that it was not necessary to consider whether or not the applicant had also breached s.103 in the way described in the NOICC.
In considering whether it should proceed to cancel the applicant’s visa, the Tribunal had regard to the prescribed circumstances set out in reg.2.41:
a)the correct information
The Tribunal found that the applicant had provided incorrect and false information about her employment history in Russia and her countries of residence and that she did so in an attempt to meet the requirements for a subclass 136 visa to which she would not otherwise have been entitled.
The Tribunal also found that the applicant had not given a credible account of her personal circumstances in the United States, particularly as they related to Mr A. The Tribunal noted that the applicant’s evidence in this regard was inconsistent. Further, given its adverse credibility findings against the applicant generally, the Tribunal was not satisfied that Mr A continued to harass or threaten her after she left Russia or that the problems in her relationship with Mr A were such that she was unable to take action whilst in the United States. The Tribunal considered that the applicant overstayed her visa in the United States for reasons other than the abuse or imprisonment she claimed to have suffered.
b)the content of the genuine document (if any)
The Tribunal was not satisfied that the applicant had provided any genuine documents relating to her claimed employment as a pastry cook.
c)the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document
Having found that the applicant was not employed as a pastry cook at Lakomka for the period claimed, the Tribunal was satisfied that, had she provided correct information with her visa application form (and not provided bogus documents), the applicant would not have been able to obtain a positive skills assessment from Trades Recognition Australia. Consequently, she would not have satisfied the necessary criteria for the grant of a subclass 136 visa.
d)the circumstances in which the non-compliance occurred
The Tribunal found that the applicant was fully aware that she had provided incorrect information in her visa application form and considered her continued denial in relation to the provision of bogus documentation regarding her employment history to be highly adverse to her credibility generally.
e)the present circumstances of the visa holder
The Tribunal accepted that the applicant felt settled in Australia and wished to continue her residence here.
f)the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
The Tribunal noted that when first contacted by the department the applicant initially maintained that she had never been to the United States and only admitted the truth after the department provided further details of her stay there. The Tribunal found that the applicant’s actions in providing incorrect information and then denying that she had done so were deliberate and it was not satisfied that she had met her obligations to provide correct information as required by the Act.
g)any other instances of non-compliance by the visa holder known to the Minister
Given the Tribunal’s findings that the applicant was not employed at Lakomka as a pastry cook and that Lakomka never operated as a confectionary business that was a subsidiary of Politech, the Tribunal found that the applicant’s employment reference and workbook were counterfeit documents. The Tribunal was therefore satisfied that the applicant had provided bogus documents in breach of s.103 of the Act.
h)the time that has elapsed since the non-compliance
The Tribunal accepted that a relatively lengthy of period, being four years, had elapsed since the applicant’s non-compliance.
i)any breaches of the law since the non-compliance and the seriousness of those breaches
The Tribunal had no information before it in relation to any other breaches of the law by the applicant.
j)any contribution made by the holder to the community
The Tribunal was satisfied that the applicant was employed in Australia and that she had made some contribution to the community in terms of her sport activities and broader community activities. It also accepted that she had support from friends and members of the community in Australia, including support from her local council and support from senior representatives in her sport.
k)other matters
The Tribunal also had regard to departmental policy concerning the exercise of discretion under s.109 of the Act.
The Tribunal noted the applicant’s claim that she did not feel safe in Russia because of the problems she experienced with Mr A and her claim that the police refused to help her. However, given the Tribunal’s finding that the applicant was not a credible witness in relation to her personal circumstances in the United States and in Russia after her return, the Tribunal was not satisfied that she would face risks associated with her claimed past relationship with Mr A such that her removal from Australia would be in breach of Australia’s non-refoulment obligations.
The Tribunal found that the applicant’s non-compliance with s.101 was a serious breach of Australia’s immigration laws and, having had regard to all the factors summarised above, was satisfied that the reasons for cancelling the visa outweighed the reasons for not cancelling the visa. Accordingly, the Tribunal affirmed the decision of the delegate to cancel the applicant’s subclass 136 visa.
Proceedings in this Court
In her application the applicant pleaded the following ground:
(1)The Tribunal erred by failing to comply with s.359AA of the Migration Act 1958.
Particulars
The Tribunal at the hearing gave the applicant particulars of certain information that it considered would be the reason, or a part of the reason, for affirming the decision under review. However, it did not advise the applicant that she might seek additional time to comment on or respond to the information.
At the hearing, the applicant’s case was reformulated to take account of the fact that s.359AA is no more than an optional means by which to comply with the requirements of s.359A. It was accepted by the applicant that non-compliance with the requirements of s.359AA would only lead to s.359A applying to any necessary notification of information. Section 359A relevantly provides:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) …
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
The information which the applicant originally alleged the Tribunal should have notified to her was set out in her written submissions. Of the matters referred to in those submissions the only material which was pressed at the hearing as being information falling within the scope of s.359A was the information which was contained in the psychiatrist’s report which had been sent to the Tribunal under cover of the applicant’s migration agent’s letter dated 5 March 2009. The applicant submitted that the greater part of the psychiatrist’s report should have been notified to her pursuant to s.359A.
The most obvious obstacle to the success of that submission would appear to be s.359A(4)(b) because the psychiatrist’s report, and all the information it contained, had been given by the applicant’s migration agent to the Tribunal for the purposes of its review. Paragraph (b) of s.359A(4) provides that information given in such circumstances is not required to be re-notified to an applicant pursuant to s.359A(1). However, the applicant submitted that expert evidence is outside the scope of s.359A(4)(b) because it is not partisan. It was submitted that information of that character was not caught by the s.359A(4)(b) exception, although the applicant was unable to take the Court to any authority for that proposition.
At this point it is useful to consider what amounts to “information” for the purposes of s.359A. The nature of “information” was discussed by Rares J in SZEWL v Minister for Immigration & Citizenship [2009] FCA 209 in the context of s.424A, the Refugee Review Tribunal’s equivalent of s.359A. In that case, his Honour said:
In SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at 259 [205], Allsop J said:
“Information is that of which one is told or apprised; it is knowledge communicated concerning some particular fact, subject or event: the Complete Oxford English Dictionary (2nd ed, 1991).”
And, in SZBYR 235 ALR at 616 [18], the plurality said:
“However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies, or the absence of evidence.” (emphasis added)
In my opinion, “information” within the meaning of s 424A must relate to what a witness said to the tribunal, or what is contained in documentation before the tribunal. Such a construction is reinforced by consideration of s 424. That section entitles the tribunal to get any information that it considers relevant. And,
s 424(2) authorises the tribunal to invite a person “to give additional information”. ... (at [46]-[47])
Moreover, in Minister for Immigration & Citizenship v Chamnam You [2008] FCA 241 Sundberg J said:
The word “information” in s 359A(4)(b) is thus not confined to information the applicant thinks will advance his or her case, or information upon which the applicant relies in support of the application. If what is given to the Tribunal is information, it is covered by s 359A(4)(b). (at [22])
There is no reason to limit the meaning of “information” in the way submitted by the applicant. Indeed, to suggest that an expert report prepared for proceedings, even inquisitorial tribunal proceedings, is not a partisan document and ignores the purpose of such reports, regardless of the bona fides of the author. Moreover, it could not be said that the patient history, which is generally narrated in the early part of medical reports as it was on this occasion, could fall within the immunity from partisanship which the applicant propounds. If such immunity was to attach to anything, it would be to the expert’s opinion not to the background facts and assumptions on which the expert opinion is based. But, in any event, the issue presented by s.359A is not impartiality but information. The issue is whether the document contains material of the sort discussed by Rares J. In the context of a psychiatrist’s report, such information includes all its evidentiary content, whether fact or opinion.
Further, the Court was not taken to any authority which would suggest that the meaning of “information” is subject to the exception advanced by the applicant. Indeed, the authorities point in quite the opposite direction. As a consequence, I find that the information contained in the psychiatrist’s report falls within the exception to the operation of s.359A(1) found in s.359A(4)(b) and that the Tribunal did not err by not notifying that information to the applicant in accordance with that section.
In any event, the significance of the psychiatrist’s report for the Tribunal was that the information it contained was significantly discrepant from the information the applicant had otherwise provided to the Tribunal concerning her experiences in the United States (CB 193). The information contained in the psychiatrist’s report was not, itself, the reason or part of the reason for the Tribunal affirming the delegate’s decision. Its significance lay in it being primary evidence upon which the Tribunal relied when reaching a conclusion that the applicant had not given a credible account of her circumstances in the United States. The conclusion reached by the Tribunal based on those evidentiary discrepancies was the reason or part of the reason for the Tribunal’s affirmation of the delegate’s decision. As is now well understood, conclusions of this sort are not “information” for the purposes of s.359A: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1196 [18].
The applicant’s final submission was that if adverse conclusions are drawn because of discrepancies between two sets of information, the underlying information has to be notified under s.359A. This submission must fail for the reasons discussed above at [31]. It fails to take account of the terms of s.359A(1) which only requires the Tribunal to notify information if it considers that such information “would be the reason, or a part of the reason, for affirming the decision that is under review …”. Properly understood, the relevant part of the reason for the Tribunal affirming the delegate’s decision was its adverse credibility findings concerning the applicant, not the evidence which led to those intermediate findings on credit: see the discussion in SZBYR’s case at 1196 [18]-[20]. Indeed, the proposition advocated by the applicant would lead to the circulus inextricabilis referred to in SZBYR which, as the High Court observed “is a likely indication that such a construction is in error” (at 1196 [20]).
Conclusion
For these reasons, the Tribunal’s decision is not affected by jurisdictional error.
Consequently, the application will be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 20 November 2009
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