FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Border Protection [2016] FCA 272

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs, as taxed if not agreed.

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

REASONS FOR JUDGMENT

BUCHANAN J:

1    The appellants are members of the same family unit. Their applications for visas to reside in Australia depend upon the application made by the first appellant on 26 July 2009 for a Skilled (Residence) (Class VB) (Skilled – Independent) (Subclass 885) visa.

2    The first appellant’s application nominated his skilled application as cook. On 4 September 2009, the first appellant provided a skills assessment letter from Trades Recognition Australia (“TRA”) in support of his application. The letter was dated 16 April 2009. On 25 July 2012, the first appellant was requested to provide copies of the documents that were provided to TRA in support of his skills assessment application and on 10 September 2012, he did so.

3    One document was a reference dated 24 March 2009 purporting to be from New Bombay Fusion restaurant, stating that the first appellant was employed by New Bombay Fusion as a cook from 1 June 2008. The duties performed as a cook were listed. Those duties matched the duties of the nominated occupation of cook as defined in the Australian Standard Classification of Occupations (“ASCO”) dictionary (ASCO code 4513-11).

4    On 17 May 2010, the Department of Immigration conducted an investigation into New Bombay Fusion “aimed at ascertaining who gained work experience by working (whether voluntarily or in paid employment) at the establishment”. During that investigation, the owner of the business asserted that the first appellant was employed at the business but that the duties performed were not those of a cook; rather, the first appellant’s duties included distribution of leaflets and delivery of food orders.

5    The first appellant was invited, on 26 August 2014, to comment on that information. He replied through a migration agent on 15 and 16 September 2014 and on 20 October 2014. The responses denied that the first appellant’s duties included distribution of leaflets and delivery of food orders. The responses made by the migration agent also claimed that the work duties of delivering food and distributing leaflets were, in any event, related to the nominated occupation of cook.

6    However, up to the date of a decision of a delegate of the first respondent on 5 November 2014, refusing visas for all the appellants, the first appellant had not provided further evidence to demonstrate that his duties did include those stated by the reference letter, nor that they did not include leaflet distribution and food delivery, nor that such work may have in any event been part of his work as a cook.

7    The delegate found that the first appellant had: “not provided sufficient, relevant and credible evidence that you were employed at New Bombay Fusion as a cook with the duties listed in the reference letter you provided”.

8    The delegate therefore found that the first appellant had provided false and misleading information to TRA in order to obtain a skills assessment and that, therefore, the skills assessment letter which he provided in support of his visa application was a bogus document within the meaning of public interest criterion 4020(1) (“PIC 4020”).

9    PIC 4020 applied to the first appellant’s application for a visa because in 2011 the migration law was changed to include that criterion as a requirement to be satisfied for applications lodged but not determined before 22 March 2014.

10    PIC 4020(1) requires that there be “no evidence before the Minister that the applicant has given, or caused to be given, … a bogus document or information that is false or misleading in a material particular in relation to: (a) the application for the visa …”. At the time of the delegate’s decision regulation 1.03 of the Migration Regulations 1994 (Cth) defined bogus document as having the same meaning as set out in s 97 of the Migration Act 1958 (Cth) (“the Act”). Section 97 of the Act defined bogus document as follows:

97    Interpretation

In this Subdivision:

…

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.

…

(Emphasis in original.)

[The definition of bogus document is now in s 5 of the Migration Act.]

11    The appellants applied to the Migration Review Tribunal (“MRT”) for review of the delegate’s decision on 12 November 2014. By a decision dated 30 April 2015, the MRT affirmed the decision of the delegate. The decision of the MRT sets out in much greater detail the matters which are summarised above, which reflect the findings of the delegate. That material, which included the information provided by the owner of the New Bombay Fusion restaurant (and two other restaurants), was put to the first appellant during a hearing before the MRT. Some responses were made then and some responses were made after an adjournment had been sought, and provided, to obtain evidence that the first appellant had worked genuinely as a cook. The adjournment granted was for a limited time only, for reasons explained by the MRT as follows:

21.    The applicant’s representative requested additional time to provide evidence that the applicant had worked genuinely as a cook. However, the applicant had earlier stated that as 5 years had passed since he worked at the restaurant; it had been really hard for him to get further proof of his work experience. In response to the Tribunal’s query as to what type of evidence may be provided in these circumstances, the representative said that he would suggest to the applicant that he could door knock and find former customers who would verify that they had seen him working at the restaurant. The Tribunal considered the request and allowed a further week to provide submissions or any other material relevant to the issue. But it did not consider that it was appropriate to adjourn for any lengthier period of time for the applicant to gather the type of information suggested by the representative through door knocking in the hope of locating former customers. One of the reasons being that the number of hours of work experience completed as a cook is critical to the issue of whether the work reference letter contained a false or misleading statement that the applicant undertook the necessary hours’ of work experience as a cook. It does not consider that a former customer of the restaurant would be in a position to give any reliable evidence on this point, as it is unlikely that a customer has access to the kitchen in order to view who is carrying out the cooking. It is even less likely that a customer, even if a regular customer, could confirm or verify the precise number of hours worked by an employee of a restaurant. Further, it was noted that the applicant had been aware that his claimed employment was in issue since August 2014 when he was issued an invitation to comment by the Department of Immigration. The same migration agent was engaged at that point to respond to the invitation to comment. At no point prior to the hearing, being either when the matter was before the Department or since the application for review was lodged, had any additional material been provided to support the applicant’s claimed work experience at the restaurants in question. The Tribunal did not consider that was appropriate in the circumstances to allow the time requested.

12    In its decision affirming the decision of the delegate, the MRT explained a number of concerns about the veracity of the first appellant’s claims, as follows:

29.    In this case, investigations were conducted into New Bombay Fusion which led to there being a belief by department officers that the applicant had supplied false and misleading information to TRA in order to obtain a successful skills assessment. The applicant claims that he did undertake work experience as a cook at New Bombay Fusion and/or Indioz restaurants, claiming at the hearing that his main duties included preparing dough for naan bread. However, the owner of the New Bombay Fusion and Indioz restaurants had said during an interview with DEEWR investigators that the applicant had carried out delivery work, picked up produce from the markets and also distributed leaflets. This is clearly different to the information entered on the TRA Migration Skills Assessment application form in the section requiring a description of his work. It does not match the description of duties carried out in the reference letter purportedly from New Bombay Fusion that was provided to TRA. Based on the responses given by the owner, the applicant’s duties were clearly not those of a cook as described in his application and reference letter.

30.    The applicant said that it was the owner who had submitted the TRA application for him, and that he had relied upon his assistance with that part of the process. He pointed out that the contact details, including the residential address and email address, are not his own. He also claimed that the owner had assisted him with his visa application, although he had completed and submitted it online himself. However, regardless of who submitted the application to TRA, the only document that was submitted to TRA regarding the applicant completing 900 hours’ work experience as a Cook is the work reference letter purportedly signed by Foram Bodana on 24 March 2009 for New Bombay Fusion. Having regard to the definition of bogus document in s.5(1) of the Act, it is not necessary for the statement regarding work experience to have been made or submitted by the applicant. The statement does not even have to be knowingly false or misleading.

31.    The information given during the interview with the owner of New Bombay Fusion is that the applicant undertook delivery work and distributed leaflets from 1 July 2008, and that he was also employed at Indioz Restaurant where, in addition to delivery work and leaflet distribution, he used his van to pick up vegetables from the market. This is completely different to what is contained in the work reference letter – where it was stated that the applicant had undertaken basic food preparation, cooking stocks, sauces and gravy using a variety of tools and equipment in the kitchen.

32.    The applicant claimed that he did the required work experience as a cook. However, the Tribunal has significant concerns about that claim. The Tribunal accepts that the applicant was employed at the restaurants given the owner’s responses during the interview. However, the evidence that was submitted to the Department to support his claim of 900 hours’ work experience as a cook is problematic. The letters purportedly from the restaurant(s) are internally inconsistent, with different start dates of employment. The payslips for New Bombay Fusion and Indioz dated from 7 July 2008 to 18 March 2009 all indicate that the applicant’s address was 63 Best Road in Seven Hills; an address which, according to the Form 80 he completed with his wife, he did not begin living at until April 2009. This suggests to the Tribunal that the payslips were not issued on the dates that appear on the payslips but at a later time and raises doubts as to their authenticity. The applicant’s explanation regarding the address appearing on his payslips was unconvincing. It further considers that the PAYG payment summaries that were presented as evidence of his employment are not documents which assist with determining the applicant’s position or type of work carried out. As the critical issue is whether his claimed 900 hours’ work experience as a Cook is true, his employment at New Bombay Fusion and Indioz restaurants of itself is not evidence of the type or work undertaken and the number of hours completed. The Tribunal places significant weight on the information given during Mr Prithvi Singh’s interview as to the nature of the work undertaken by the applicant. It is not persuaded by the applicant’s evidence at the hearing or the documents provided that he did undertake work experience as a cook at New Bombay Fusion and/or Indioz restaurants.

33.    Having considered the information presented, the Tribunal does not accept that the applicant did undertake the duties of a cook for 900 hours at New Bombay Fusion and/or Indioz restaurants. It has thus formed the view that the copy of the applicant’s work reference letter which was given to TRA contains false and misleading information as to the nature of the applicant’s work at New Bombay Fusion. The false statements were that the applicant had 900 hours’ work experience as a cook and carried out cooking related duties. The Tribunal finds that the skills assessment of 16 April 2009 (reference or receipt number of TRA09/123238851) from TRA was obtained because of a false or misleading statement. It is not relevant who submitted the application to TRA and provided the letter. The use of a letter containing a false statement to obtain a successful skills assessment for a visa clearly involves fraud and deception. The Tribunal finds that the TRA skills assessment is a bogus document, being a document which the Tribunal reasonably suspects was obtained because of a false or misleading statement, whether or not made knowingly.

34.    The Tribunal further finds that the applicant gave a copy of this TRA skills assessment to an officer of the department, or the Minister when seeking the Subclass 885 visa the subject of this review.

35.    There is thus evidence before the Tribunal that the applicant has given, or caused to be given, to an officer, or Minister, a ‘bogus document’ in relation to his application for the visa. It finds that the applicant does not satisfy PIC 4020(1)(a) in relation to the TRA skills assessment given for his application.

13    The MRT then examined whether the requirements of PIC 4020(1) should be waived because there were compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen (as defined in reg 1.03 of the Migration Regulations). In particular, the MRT considered statements by two Australian permanent residents claiming to be related to the second appellant which stated that each would be affected financially in a “devastating” way if the second appellant was not present in Australia to assist with the care of that person’s children. The MRT was not prepared to accept those assertions and concluded that there were no compelling circumstances, or compassionate or compelling circumstances which should cause the requirements of PIC 4020(1) to be waived.

14    The appellants then applied to the Federal Circuit Court of Australia (“FCCA”) for judicial review of the decision of the MRT. That application for judicial review was dismissed on 20 October 2015 (Singh & Ors v Minister for Immigration & Anor [2015] FCCA 2812).

15    The FCCA referred to the matters to which I have drawn attention. The conclusions of the FCCA were expressed as follows:

17.    This Court does not have jurisdiction to revisit the merits of the matter or to make fresh findings of fact. The adverse findings by the Tribunal were clearly open, and the Tribunal complied with the statutory regime and carry out a review. Nothing said in the seven paragraphs under the Fundamental Issue identify any jurisdictional error. The four paragraphs under the heading Social Issues fail to identify anything that constitute a jurisdictional error. Accordingly, none of the original grounds of application in the first application, nor the content in the amended application identify any jurisdictional error.

18.    The applicant, from the bar table, referred to the inability to find the owner. However, this does not make out any jurisdictional error and does not identify any want of procedural fairness by the Tribunal. The applicant in the course of the hearing sought an adjournment for the purpose of seeking to have discussions with another lawyer. The adjournment application was opposed. Other than the amended application document that was, in part, a purported expansion of grounds and, in part, purported submission no other document was filed by the applicant in accordance with the directions made on 9 July 2015 by the applicant.

19.    I am not satisfied that there would be any utility in granting an adjournment, and that an adjournment would be only likely to unnecessarily increase the costs of the respective parties and utilise limited Court time. The applicant was asked as to whether he had endeavoured to see a lawyer beforehand, and conveyed that he was not satisfied with the response he had received to date. There is no reason why this Court should be satisfied that any adjournment would place the applicant in any different position on the next occasion.

20.    For all of these reasons the Court is satisfied there is no utility in granting an adjournment. For the above reasons, the application and the amended application fail to disclose any jurisdictional error. The application and the amended application are dismissed.

16    As the FCCA correctly observed, the facts upon which the decisions of the delegate and the MRT proceeded were not open to review in the FCCA. Findings about those facts are not reviewable in this Court on the present appeal either. A challenge to the decision of the MRT cannot succeed unless there was jurisdictional error.

17    On 4 November 2015, the appellants commenced an appeal in this Court. The grounds of appeal, generously construed, suggest simply that the owner of the New Bombay Fusion business had lied to Departmental investigators.

18    The appellants did not file any written submission in support of their appeal which might suggest any form of jurisdictional error. At the hearing of the appeal, only the first appellant appeared. The focus of his attention in his oral remarks seemed to be on the concern that refusal of a visa based on PIC 4020 has the consequence that a further application may not be made for at least three years, rather than on any particular complaint about the reasons of the MRT or the FCCA. As a result, the appellants have not articulated any challenge to the decision of the MRT which was not really an attempt to revisit the merits of the MRT decision, a course which is not open in the present proceedings.

19    The present therefore appears to me to be a clear case where, at best, the appeal in this Court seeks to canvass the merits of a decision about a visa and to invite a different view of the facts found by the MRT. No question of jurisdiction arises for consideration. No error in the decision of the FCCA has been identified.

20    The appeal must therefore be dismissed. It is appropriate to dismiss it with costs.

Associate:

Dated:    21 March 2016