Zhang v Minister for Immigration
[2016] FCCA 183
•10 February 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ZHANG v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 183 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal had made an incorrect finding of fact and refused a request for a further hearing. |
| Legislation: Migration Act 1958 (Cth), ss.97, 474 Evidence Act 1995 (Cth), s.140 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169 Patel v Minister for Immigration & Border Protection (2015) 145 ALD 566 SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189 |
| Applicant: | XIANGYI ZHANG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 430 of 2014 |
| Judgment of: | Judge Cameron |
| Hearing date: | 2 February 2016 |
| Date of Last Submission: | 2 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 10 February 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr K. Geering of Radisson |
| Solicitors for the Respondents: | Ms C. Hillary of DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 430 of 2014
| XIANGYI ZHANG |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of China, applied for a Skilled (Residence) (Class VB) subclass 885 visa on 2 July 2012. On 12 August 2013 his application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not meet Public Interest Criterion 4020 (“PIC 4020”) and therefore did not satisfy cl.885.224 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“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 cannot rehear the applicant’s application for a visa. Its 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 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
The criteria for the grant of a subclass 885 visa were set out in pt.885 of sch.2 to the Regulations. Part 885 was repealed on 1 July 2013 but that repeal did not apply to visa applications made on or before 1 July 2013: items 26 and 29 of sch. 2 to the Migration Amendment Regulation 2012 (No.2). One of the criteria which the applicant had to satisfy at the time a decision was made on his visa application was cl.885.224(a) which relevantly required the applicant to satisfy PIC 4020.
At all material times 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 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; ...
…
(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.
At the time of both the delegate and Tribunal’s decisions, reg.1.03 of the Regulations defined “bogus document” as having the same meaning as in s.97 of the Act, which provided:
bogus document, in relation to a person, means 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.
Background facts
Visa application
In his application form the applicant indicated that he had undertaken an International English Language Testing System (“IELTS”) test on 16 June 2012 and that his English language ability was “proficient”. He provided an IELTS test report form dated 27 June 2012 which indicated that he had achieved scores of 8.5 for listening, 8.0 for reading, 8.0 for writing and 7.5 for speaking.
On 4 July 2013 the delegate wrote to the applicant seeking his comments on information that the IELTS test report form he had provided was a bogus document. The Minister’s department (“Department”) had sought to verify the applicant’s test report form on the IELTS online verification system and found that the test day photograph on the IELTS online verification system did not match the photograph on the test report form provided by the applicant. In a response sent to the Department by email on 25 July 2013 the applicant claimed:
a)in February 2012 he met a man named “Kevin” who claimed to be a senior migration agent and offered to assist him with his visa application;
b)Kevin advised him to sit an IELTS test and he did so in April 2012 and provided the results to Kevin. He also gave Kevin his work experience and study documents. In July 2012 Kevin gave him a letter from the Department acknowledging his visa application and that was the last occasion they had contact with each other; and
c)he was shocked to receive the delegate’s letter stating that his IELTS results were bogus. He had concluded that Kevin had forged his IELTS test results and submitted them to the Department. He had tried contacting Kevin but had been unable to reach him.
The delegate found that the applicant’s response did not refute the findings concerning the verification of the IELTS test report form. Accordingly, the delegate was not satisfied that the applicant met PIC 4020 and so found that he did not satisfy cl.885.224 of sch.2 to the Regulations. The delegate therefore refused the applicant’s visa application.
Tribunal proceedings
The applicant sought review of the delegate’s decision with the Tribunal. He provided to the Tribunal a statement dated 3 December 2013 in which he claimed that Kevin had told him that he needed to obtain a test score of 6 for each individual component of the IELTS test. He claimed that he had sat an IELTS test in April 2012 and obtained the scores advised by Kevin. The applicant claimed that after realising that Kevin had submitted a fake IELTS test report form to the Department, he consulted another migration agent and became aware that he required a score of 7 for each individual component of the IELTS test. At a Tribunal hearing on 3 December 2013 the applicant stated that he had not sat an IELTS test on 16 June 2012.
The Tribunal’s decision and reasons
The Tribunal affirmed the delegate’s decision to refuse the applicant a visa. It found that the applicant did not satisfy PIC 4020 for the purposes of cl.885.224 and was therefore unable to meet the requirements for a subclass 885 visa. In reaching that finding:
a)while the Tribunal had some concerns about the applicant’s evidence, it nevertheless gave him the benefit of the doubt and accepted that a migration agent named “Kevin” had acted on his behalf in relation to his visa application and had provided documents to the Department on his behalf;
b)the Tribunal noted that it had sought to verify the applicant’s IELTS test report form on the IELTS online verification system and that the photograph of the person who took the test did not match the photograph on the form provided by the applicant. It accepted that the photograph on the IELTS online verification system was the photograph of the person who had undertaken the test on 16 June 2012 and was not the same as the photograph on the test report form. It also accepted the applicant’s evidence that he had not undertaken an IELTS test on 16 June 2012. Accordingly, the Tribunal found that the IELTS test on 16 June 2012 had been undertaken by an imposter and that the test report form dated 27 June 2012 had been altered by substituting the photograph of the applicant for the photograph of the person who had undertaken the test;
c)the Tribunal noted the applicant’s evidence that he had been unaware that a fraudulent IELTS test report had been provided to the Department but it found that the requirements of PIC 4020 applied whether or not a document was provided by or on behalf of an applicant knowingly or unwittingly. The Tribunal therefore concluded that the applicant had given, or caused to be given, to the Minister or an officer of the Department a bogus document because the IELTS test report form dated 27 June 2012 purported to have, but had not, been issued in respect of the applicant. It found that the test report form was a bogus document within the meaning of s.97(a) of the Act; and
d)the Tribunal went on to consider whether there were any compassionate or compelling circumstances justifying the waiver of the requirements of PIC 4020. After considering the applicant’s circumstances, it concluded that there were no such circumstances and determined not to waive the requirements of PIC 4020.
Proceedings in this Court
In the application commencing these proceedings the applicant alleged:
1.The Second Respondent erred in jurisdictional error by concluding that the “Bogus Document” had been given, or caused to be given, to the Minister (or) an officer.
Particulars
(i)Public Interest Criterion 4020 (“PIC 4020”) requires the applicant has given or caused to be given, to the Minister or an officer a bogus document or information that is false or misleading in a material particular.
(ii)[not relied on].
(iii)[not relied on].
(iv)There was no evidence before the Second Respondent that the Bogus Document had been given or caused to an officer accordingly the Applicant did not fail to satisfy PIC 4020.
2.The Second Respondent erred in jurisdictional error by refusing the Applicant’s request (“Request”) during the hearing to provide a substitute for the Bogus Document.
Particulars
(i)The Second Respondent concluded that the migration agent referred to as “Kevin” acted on behalf of the Applicant and provided documents to the Department on behalf of the Applicant, at [16].
(ii)Having concluded as per Particular 2(i), the Second Respondent should have acceded to the Request.
Definitions
“Bogus Document” means IELTS test Report Form dated 27 June 2012 (12KR003328ZHAX001A) as set out the Decision Record of the Second Respondent.
Ground 1
The applicant submitted that Kevin had provided the bogus IELTS test report to the Department without his authority or knowledge. He submitted that, in those circumstances, the act of his agent should not be attributed to him and that, for that reason, it was not open to the Tribunal to find, as it did, that he had caused the bogus IELTS test report to be given to the Department.
At the outset it should be stated that, relevantly, the Tribunal found that Kevin had acted for the applicant in his dealings with the Department, as the applicant had alleged. That finding was open to it and is not reviewable in this proceeding. Additionally, the Tribunal’s interpretation of PIC 4020, that an applicant would be responsible for bogus documents submitted on his or her behalf even if unaware that they were bogus, was not erroneous: Trivedi v Minister for Immigration & Border Protection (2014) 220 FCR 169; Patel v Minister for Immigration & Border Protection (2015) 145 ALD 566. Subject to the discussion which follows, those findings dispose of this allegation.
In substance although not expressly, what the applicant was arguing was that Kevin had acted fraudulently and that the Tribunal’s decision had been induced or affected by that fraud. However, although “fraud unravels everything” (SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189), the applicant did not seek to explain why such concepts had any relevance for PIC 4020, which is concerned with an applicant being responsible for the veracity of the information and documents supplied to support a visa application and whose operation does not require knowing complicity by the visa applicant in the provision of material which is purposely untrue: Trivedi v Minister for Immigration at 179 [43] and [49]. In those circumstances, there is no basis to find that the Tribunal’s understanding of how PIC 4020 operated in this case was mistaken.
In any event, to make out an argument of that sort the applicant had to prove that Kevin had acted fraudulently. For instance, allegations that Kevin was acting for the applicant in his dealings with the Department, and did so otherwise than in accordance with his authority and without the applicant’s knowledge, were matters the applicant had to prove in this proceeding. The only evidence before the Court on the latter subjects is what was contained in the Court Book which was exhibit A, and was no more than the applicant’s assertions, recorded in his email of 25 July 2013, his statutory declaration of 3 December 2013 and at paras.14 and 19 of the Tribunal’s decision, that he was a victim in this case, had not been aware of what Kevin did and had not authorised him to mislead the Department. The applicant did not give evidence in this proceeding and his assertions were not tested in cross examination. Nor did he seek to identify why Kevin might have acted fraudulently. Having regard to the seriousness of the allegations of misconduct made against Kevin and to s.140 of the Evidence Act 1995, to the extent that Kevin represented the applicant in his dealings with the Department, I am not persuaded that he did so without the applicant’s authority and knowledge, in particular in the provision to the Department of an IELTS test report which, on the evidence, was bogus according to the terms of s.97 of the Act.
The applicant’s allegation was that the decision under review is affected by jurisdictional error because the Tribunal concluded that he had caused a bogus document to be given to the Minister or an officer of the Department, notwithstanding that Kevin had acted without his authority and knowledge in providing that document. For the reasons I have given, that allegation has not been proved.
Ground 2
The applicant asserted in connection with the second ground of the application that the Tribunal had erred in not acceding to his request for a second hearing session which he said had been made in the final sentence of his statement of 3 December 2013 which read:
I sincere hope MRT will give me a chance to clarify myself and give another chance to reassess my application. [sic]
At para.12 of its decision the Tribunal recorded that it had received that statement, implicitly at or before the hearing which it held, but I do not read the sentence in question as making the request which the applicant seeks to identify. Rather, it is something in the nature of a closing submission exhorting the Tribunal to permit the applicant to present his case and also to reconsider the refusal of his visa application.
I find that the applicant did not request further hearing time as he has alleged. Given that finding, the second ground of the application has not been made out.
Conclusion
Jurisdictional error on the part of the Tribunal has not been identified.
Consequently, the application will be dismissed.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Date: 10 February 2016
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