Zala v Minister for Immigration

[2017] FCCA 1920

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZALA & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1920

Catchwords:
MIGRATION – Application for judicial review – Skilled (Residence) visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994, PIC 4020

First Applicant: KRISHNAKUMAR SINGH ZALA

Second Applicant: JAYENDRABALA K ZALA

Third Applicant: AARYAN K ZALA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2097 of 2015

Judgment of: Judge Riethmuller

Hearing date: 19 July 2017

Date of Last Submission: 19 July 2017

Delivered at: Melbourne

Delivered on: 19 July 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2097 of 2015

KRISHNAKUMAR SINGH ZALA

First Applicant

JAYENDRABALA K ZALA

Second Applicant

AARYAN K ZALA

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 25 August 2015 affirming a decision of a delegate to refuse the applicants’ application for a Skilled (Residence) (Class VB) visa under the Migration Act 1958.

2. The first named applicant (“the applicant”) came to Australia as a student in 2005.  The applicant undertook certificate and diploma courses, following which, in 2008, he applied for a Skilled Provisional Graduate visa, under class 485.  That application was made on

   
   

   29 February 2008.  That application relied upon a skills assessment and work experience said to have been undertaken at a bakery, described as Bakers Hut, with a Mr Deniz Kordemir.  It was said that that work experience took place from 28 August 2006, and that it involved 920 hours of work until June 2007.  It is said that Mr Kordemir made no payments for this 920 hours of work that the applicant undertook, and there seems to be no documents other than a work reference, that were provided to evidence the work.  It seems remarkable that 920 hours could possibly be appropriately undertaken without pay, having regard to the current industrial laws, nonetheless, that is not an issue for this Court. 

3. The arrangements for work experience were made by a person who has become well-known to the Court, as a result of large scale fraud on the migration system who, as I understand it, cannot currently be named, as a result of proceedings in the County Court.

4. The application for the visa was determined by a delegate of the Minister on 5 November 2012.  In that decision, the delegate concluded that the applicant’s work reference that had been relied upon was false and therefore, the skills assessment from the TRA was bogus, as defined in the Act, and the visa was not granted.

5. The applicant had, some six months after he applied for the visa that was determined by the delegate’s decision, also applied for a visa that is the subject of the current proceedings.  That second visa application was made on 28 July 2008.  Although the applicant’s visa application made 28 February 2008 was refused on the basis of the provision of bogus documents in 2012, a decision was not made, with respect to his later visa application (made 28 July 2008) until 23 December 2014.  The applicant sought review by the Tribunal of the second visa decision, not the first visa decision.  The Tribunal dismissed the review on 25 August 2015.

6. The key issue that confronts the applicant is the operation of PIC4020, which relevantly provides:

   4020     (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.

   (2)  The Minister 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 to grant the visa;

   the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

   (2AA)  However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (2A)  The applicant satisfies the Minister as to the applicant’s identity.

   (2B)  The Minister is satisfied that during the period:

   (a)  starting 10 years before the application was made; and

   (b)  ending when the Minister makes a decision to grant or refuse to grant the visa;

   neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).

   (2BA)  However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.

   (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.

7. In accordance with that provision, the Tribunal were obliged to refuse the applicant’s visa application (the second visa application) on the basis that a bogus document had been relied upon in the first visa application, as the first visa application was made less than three years before the second visa application.

8. The applicant today, seeks to argue through his grounds for judicial review, that the first visa decision (the decision that found that he had relied upon bogus documents) is in error and that, therefore, there is not a sound foundation for the current decision.  This presents a significant problem.  The first visa decision has not been the subject of an application to the Tribunal, nor an application to this Court.  It therefore stands as an existing decision, refusing him a visa, as a result of the provision of bogus documents.

9. When turning to the current decision, the law is clear that, as he had been refused a visa as a result of supplying bogus documents that had been applied for within the three years prior to the application for this visa, PIC4020 applied: see PIC4020(2).  In these circumstances, in this case, the Regulations concerning the provisions of PIC4020 applied and, therefore, the Tribunal were correct to proceed on that basis.

10. The Tribunal then went on to consider whether or not the requirements of PIC4020(1) or (2) should be waived, considering the matters set out in the clauses.  That part of the decision is not challenged by the applicant in his grounds for judicial review, nor does it seem that he would have any arguable case in that regard.

11. In the circumstances this is, in substance, an application for a merits review of the first decision of the delegate.  It is not open to the applicant to seek merits review of the delegate’s decision and, secondly, if review of that decision was sought, it ought to have been by way of a review to the relevant Tribunal back in 2012 or, alternatively, court proceedings then or soon after the Tribunal’s decision. 

12. In the circumstances, I find that the applicant has not established a ground for judicial review, with respect to the current decision.

13. I also note the applicant’s argument that, as a result of various delays, he has now been in Australia since 2005, and had children and established his family life here.  It is not open to this Court to consider any general discretion to grant visas; as such power does not vest in the Court.  Should the applicant wish to pursue such a claim, then it should be done with the Minister’s office directly, and is not an appropriate claim for this Court to express a view upon, particularly given that the detailed evidence that formed the foundation for the decision made by the delegate in 2012 is not currently before the Court.

14. I therefore dismiss the current application for judicial review. 

    [Further argument ensued]

15. In this matter, the Minister has been successful, and costs ordinarily follow the event.  I see no reason that costs should not follow the event in this case.  The Minister seeks costs in the sum of $5,800.  That amount is less than the scale fee.  Having regards to the nature of the matter, I am persuaded that that is a reasonable amount to seek in costs.  I order that the applicant pay the Minister’s costs, fixed at $5,800. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  14 August 2017