FEDERAL COURT OF AUSTRALIA

Dhindsa v Minister for Immigration and Border Protection [2016] FCA 1075

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs.

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, respectively, husband, wife and their child. They are nationals of India. They were all included in an application made by the first appellant electronically on 28 October 2011 for the grant to him of a Skilled – Independent (subclass 885) visa.

2    The first appellant nominated his skilled occupation as cook. He indicated that he had taken an English language test (“IELTS”) on 26 February 2011 and was assessed as “competent”. He gave the IELTS reference number. Similarly, the application said that the second appellant had taken an IELTS test on 24 September 2011, which assessed her language ability as “vocational”. The test reference number was given.

3    The application for a visa was refused by a delegate of the Minister on 14 February 2014. The delegate recorded that on 3 December 2013, the first appellant was informed by letter that his IELTS test scores had been cancelled by IDP Australia (the organisation which administers the IELTS test system in Australia) because the photo image on the test report form (which was provided by the first appellant) did not match their records. The first appellant’s attention was drawn to the requirements of the PIC (public interest criterion) 4020 to be satisfied in connection with the application. An aspect of these requirements was that there be no evidence that a visa applicant had given, or caused to be given, a bogus document in relation to the application.

4    What constitutes a bogus document has been considered in a number of cases. It is not necessary that a visa applicant know that a document is bogus, although some element of purposeful falsity is required (see Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169). Furnishing such a document in connection with a visa application suffices to engage PIC 4020 (see Arora v Minister for Immigration and Border Protection (2016) 238 FCR 153).

5    Although the first appellant responded to the letter of 3 December 2013, through a migration agent, by providing “the original copy of IELTS test results in question”, the photograph on that document (not surprisingly perhaps) also did “not match IDP Australia’s records”.

6    The delegate concluded, therefore, that the first appellant’s application did not meet the requirements of PIC 4020. That requirement may be waived in some circumstances, but the delegate concluded that those circumstances had not been established, and refused the application in respect of all three appellants.

7    The first appellant then lodged an online application for review with the Migration Review Tribunal (“MRT”) (whose functions are now performed by the second respondent), on 3 March 2014 on behalf of all three appellants. The MRT conducted a hearing on 13 January 2015. Only the first appellant took part in the hearing.

8    The decision of the MRT made on 13 January 2015, recorded the following:

15.    The review applicant confirmed in his evidence that he submitted the IELTS test report form dated 26 February 2011 to the Department with his application for the subclass 885 visa. He stated that he did not undertake that IELTS test. He was approached by a person named Bob who offered to undertake the IELTS instead of him. The applicant agreed and paid Bob 50,000 rupees. He gave his passport and passport photographs to Bob. When presented a copy of the IELTS TRF of 26 February 2011, the applicant confirmed that passport photograph he gave to Bob appears on the IELTS TRF.

…

18.    The Tribunal invited the review applicant to indicate if there were any compelling circumstances that affected the interests of Australia, or any compassionate or compelling circumstances that affected the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, and which justified the grant of the subclass 885 visa to him.

19.    He stated that he has a sister in law in Australia and mother’s cousin in Queensland but was unable to explain how they would be affected if he and his family are requested to leave the country. He further stated that he had been in Australia for eight years, that he never broke any law and that he regrets and apologises for providing a bogus document to the Department.

…

23.    Based on the evidence before it, the Tribunal finds that the first named applicant has given or caused to be given the IELTS test report form dated 26 February 2011 to either the Minister and/or an officer with his visa application.

24.    Based on the evidence before it and in particular oral evidence given by the first named review applicant at the hearing, the Tribunal find that an imposter named Bob and not the first named applicant had undertaken the IELTS test on 26 February 2011.

…

27.    As a result, the Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to his application for a subclass 885 visa. Accordingly, the Tribunal finds that the applicant does not meet the requirements of paragraph 4020(1)(a).

28.    In considering whether to waive the requirements of subclause 4020(1), the Tribunal has considered whether there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen.

29.    The first named review applicant stated that he has a sister in law in Australia and mother’s cousin in Queensland but was unable to explain how they would be affected if he and his family are requested to leave the country. He further stated that he had been in Australia for eight years and has never broken any law. He provided a letter from Jang Pannu dated 25 March 2014 as evidence that he is regular devotee of Gurdwara Sahib, Blackbourne.

30.    Whilst the Tribunal has taken this evidence into account, the Tribunal is not satisfied that these circumstances reach an appropriate threshold as to amount to compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of Australian citizens, Australian permanent residents or eligible New Zealand citizens that would justify the grant of the visa. Accordingly, the Tribunal has determined not to waive the requirements in subclause PIC 4020(1).

(Emphasis in original.)

9    Inevitably, therefore, the MRT affirmed the delegate’s decision to refuse visas to all three appellants.

10    The appellants then applied to the Federal Circuit Court of Australia (“the FCCA”) for judicial review of the decision of the MRT. It was necessary at this point that the appellants show a jurisdictional error by the MRT. The application for judicial review could not otherwise succeed.

11    Part of the material put before the FCCA was a transcript of the proceedings before the MRT. The transcript confirmed that the first appellant paid 50,000 rupees for someone else to take the IELTS test in his place, and then submitted the results of that test to support his visa application.

12    Nevertheless, an amended application before the FCCA, dated 9 November 2015, prepared by a legal practitioner, asserted that the MRT fell into jurisdictional error, and acted unreasonably when it made findings to that effect. The amended application asserted also that, in various respects, the MRT had failed to offer the first appellant a reasonable or proper hearing and that the proceedings “were conducted unfairly and/or improperly and/or unreasonably”.

13    Allegations of this kind should not be made by legal practitioners unless there is a proper foundation for them. I am bound to say that my own examination of the transcript record yields no support for them. I will return to the transcript shortly.

14    Before the FCCA, it was submitted that the first appellant had been misunderstood by the MRT that he had not intended to suggest that someone else took the test for him, but only that they offered to secure a re-mark of a test previously undertaken. There was no evidence of a recently sat test which might be the subject of a possible re-mark; there had been earlier (unsuccessful) tests on 21 March 2009 and 25 April 2009. When challenged by the letter of 3 December 2013, the first appellant’s response, through his migration agent, was to press the test result (i.e. from the test he purportedly sat on 26 February 2011) as a true and correct record.

15    The learned judge of the FCCA concluded:

9.    … The tribunal, as indicated at pages 7 and 10 of the transcript, sought to clarify what the first applicant had said. The first applicant made it abundantly clear at page 7 of the transcript that Bobby had taken the test instead of the applicant. The first applicant made it abundantly clear at page 10 that he had used someone else to sit the test.

(Emphasis in original.)

16    The FCCA then diligently disposed of the remaining individual elements of the amended application for judicial review.

17    During the afternoon the day before the hearing of this appeal, in early May 2016, the first appellant attended the office of the solicitors for the Minister and provided them with an affidavit intended to support an adjournment of the hearing. The affidavit said:

1.    All the details in the medical report are true.

2.    Please grant me a time extention [sic] due to my medical condition.

18    There were three medical certificates attached dated 4 December 2014, 13 October 2015 and 29 April 2016 respectively. Only the first and third referred directly to the first appellant.

19    The second certificate referred to ongoing health issues affecting the first and second appellants’ infant son (who was born after the visa was first refused and is therefore not a party to these proceedings). Those health issues seem from the certificate to be likely to continue for some years. I accept that the health problems of their son are an ongoing source of concern to the first and second appellants.

20    The first medical certificate referred to two counselling sessions undertaken by the first appellant in March 2014. An opinion was expressed by a qualified clinical psychologist that, if the first appellant was permitted to settle in Australia it would be of great assistance to his mood, which was depressed at the contemplation of being returned to India. I will accept the veracity of this opinion but it can be given no weight. The question of whether the first appellant, and his family, should be permitted to remain in Australia is not a matter for this Court.

21    The most recent certificates signed by Mr Efremidis, Psychologist, offered a diagnosis of the first appellant of “Adjustment Disorder with Mixed Anxiety and Depressed Mood at an ‘extremely severe’ level of intensity” and the following opinion:

It is believed that Mr Dhindsa’s current psychological health status, and compromised level of functioning, do not permit him to attend the scheduled Federal Court of Australia hearing scheduled for May 3, 2016. It is believed that Mr Dhindsa will be unable to effectively give evidence due to his current psychological status.

22    The opinion offered no indication of when, if ever, that position might change. It did not appear, for example, that any form of treatment, or review was proposed or contemplated. The reason assigned for the first appellant’s current mental state was:

… in response to Mr Dhindsa experiencing ongoing legal uncertainty regarding his family’s legal status in Australia, his son’s life threatening physical health status, and financial hardship due to ongoing legal expenses.

23    When the appeal was called on for hearing, the first appellant appeared and sought the adjournment. He relied on his medical condition and his desire to obtain legal representation, although it appeared that he had taken no step to that point to arrange such representation for the appeal.

24    The Minister neither opposed nor consented to an adjournment.

25    I would not have regarded the material or reasons offered by the first appellant as sufficient to warrant an adjournment of the appeal. I indicated as much to the first appellant. However, the lack of any opposition by the Minister suggested that there was no prejudice to the Minister if an adjournment was granted.

26    I therefore granted an adjournment, indicating that the appeal would be relisted on another date in the ordinary way.

27    The hearing resumed on 23 August 2016. On that occasion the first appellant appeared with an interpreter and made submissions in support of the appeal on behalf of all appellants.

28    The first appellant asserted that he was disadvantaged by the absence of an interpreter before the MRT, and had been misunderstood. He stated that he had only intended to seek a re-mark and thought the test result form he submitted was a re-mark. He also stated that his infant son was in need of life-saving treatment which would not be available to him in India, but I explained that I was unable to take that circumstance into account on the appeal.

29    In the application to the MRT for review of the delegate’s decision it was indicated that an interpreter was not required.

30    Moreover, the transcript of the proceedings before the MRT gives no support to any suggestion that the first appellant was at an unfair disadvantage by having no interpreter present. The following exchanges occurred:

MEMBER: … Let’s talk about this IELTS test. Tell me first, did you provide the IELTS test report from 26 February 2011, to the Department?

MR DHINDSA: Yes.

MEMBER: Okay. Now, have you ever done the test before that February 2011? Have you ever attempted the IELTS test before that?

MR DHINDSA: Yes, I did. Which IELTS I gave, I haven’t attended that.

MEMBER: Sorry?

MR DHINDSA: Which IELTS I provided to Immigration, I have not attended that.

MEMBER: So you have not attended that?

MR DHINDSA: Yes.

MEMBER: Okay.

…

MEMBER: … I just want to focus on this IELTS test …

…

MEMBER: … So you went back to India.

MR DHINDSA: Yes.

MEMBER: With your mother.

…

MEMBER: … In February 2011.

MR DHINDSA: Yes. Yes.

MEMBER: And you met the guy in - - -

…

MEMBER: What town was that? Which city?

MR DHINDSA: It’s called Nawanshahr.

…

MEMBER: … What is the name of that person?

MR DHINDSA: It’s called Bobby.

…

MEMBER: Did you know him from before?

MR DHINDSA: No

MEMBER: So he offered you to - - -

MR DHINDSA: Do the IELTS test for the - - -

MEMBER: Do the IELTS test.

…

MEMBER: How much money did he ask for?

MR DHINDSA: He asked for 50,000.

MEMBER: Rupees?

MR DHINDSA: Yes

MEMBER: So you paid 50,000 Rupees. And he attended the test and took it instead of you?

MR DHINDSA: Yes.

MEMBER: So you submitted that report to the Department?

MR DHINDSA: Yes.

…

MEMBER: So, now, tell me when you met this Bob guy - - -

…

MEMBER: … When you talked with him, did he ask you to provide your passport photo or - - -

MR DHINDSA: He asked me to provide my passport with all the details for the IELTS.

MEMBER: Okay. So you gave him a copy of your passport?

MR DHINDSA: Yes.

MEMBER: Did you give him the passport photo that appears here?

MR DHINDSA: … [Y]es, I give the photos – passport size photo, yes.

MEMBER: So that photo there?

MR DHINDSA: Yes.

MEMBER: All right. I was asking you about the previous attempts. Have you ever tried before February to do it yourself?

MR DHINDSA: To do the test? Yes.

MEMBER: Yes.

…

MEMBER: … So at least on two occasions you attempted the IELTS test. Once in March 2009, and in April 2009. Those are the results, you submit?

…

MEMBER: … Now, as you made a full admission that you used someone else to sit the test.

MR DHINDSA: Yes, Mr Dronjic, 100 per cent.

MEMBER: I do find that the public interest criteria has been breached. …

31    The MRT went on to indicate to the first appellant that one consequence was that he could not make a further visa application for three years from the date of the delegate’s decision – i.e. before February 2017.

32    There is no room for misunderstanding about the first appellant’s responses to the MRT. Furthermore, as I pointed out earlier, there was no question of a re-mark involved. On the first appellant’s evidence to the MRT the earlier tests were taken in March 2009 and April 2009. Those tests were taken in Australia. They were unconnected with the February 2011 test taken in India.

33    The grounds of appeal in this Court are:

1.    The Appellant was denied natural justice.

2.    The Honourable Court and Judge erred in law and/or in fact in proceeding to hearing without looking at the whole evidence.

3.    The Honourable Court and Judge erred in law and/or in fact by not holding and/or concluding that all the IELTS tests were not genuine and/or bona fide application and lacked details and/or merit and/or not convincing.

4.    The Honourable Court and Judge erred in law in fact by awarding costs against the Appellant.

5.    Such further or other grounds that the Appellant may be entitled to present before the Court upon a receipt of a written copy of the reasons of the Honourable Court and Judge in due course.

34    Grounds 1 and 2 are baseless and cannot succeed. I do not know what to make of Ground 3. It does not appear to relate to anything which the FCCA said in the judgment under appeal. Doing the best I can, I see no basis for it. Ground 4 requires no separate consideration. Ground 5 is irrelevant as no amendment to the notice of appeal was sought.

35    I must say that I regard the appellants’ pursuit of the processes of administrative review, judicial review and appeal following the discovery of the first appellant’s (clearly admitted) attempt to avoid the visa requirements which he could not meet, as one which reveals a most regrettable waste of public resources.

36    The present appeal, like the earlier processes, is without any substance at all. All I can do is dismiss it with costs.

Associate:

Dated:    6 September 2016