FEDERAL COURT OF AUSTRALIA

Talukder v Minister for Immigration & Citizenship [2009] FCA 916

SHAMSUDDIN TALUKDER v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

NSD 427 of 2009

EDMONDS J

20 AUGUST 2009

SYDNEY

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

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

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          This is an appeal from the Federal Magistrates Court (Driver FM) ([2009] FMCA 223) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) to affirm decisions of a delegate of the first respondent (‘the Minister’) not to grant the appellant and other visa applicants Skilled – Independent Overseas Student (Residence) (Class DD) visas.  The application to the Federal Magistrates Court and, it follows, the appeal to this Court, only concerned the appellant.

BACKGROUND AND LEGISLATION

2                          The appellant applied for a sub class 880 (Skilled – Independent Overseas Student (Residence)) visa by application lodged on 7 October 2004.  One of the criteria under Schedule 1 to the Migration Regulations 1994 (‘the Regulations’) for that visa (item 1128CA(3)(k)) states as follows:

Application by an applicant seeking to satisfy the primary criteria must be accompanied by a declaration by the applicant that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.

3                          At the time of the visa application the criteria under Schedule 2 to the Regulations stated, inter alia:

880.21       [No criteria to be satisfied at time of application]

Note The requirements for making a valid application for a Skilled – Independent Overseas Student (Residence) (Class DD) visa are set out in item 1128CA of Schedule 1.

880.22       Criteria to be satisfied at time of decision

880.221     If regulation 2.27B applies, the applicant provides, for the purposes of the application, the assessment of his or her skills mentioned in subregulation 2.27B (4).

880.222     The applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act.

Note   That Subdivision of the Act provides in sections 92 to 96 for the application of a points system, under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark.  The prescribed points and the manner of their allocation are provided for in Division 2.2 (see regulation 2.26A), and Schedule 6A, of these Regulations.  Pool marks and pass marks are set from time to time by the Minister by notice in the Gazette (Act, section 96).

880.222A  In determining whether the applicant satisfies a criterion that he or she has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant:

                  (a)  held a substantive visa authorising him or her to work during that period; and

                  (b)  complied with the conditions of that visa.

880.223     The applicant has vocational English.

880.224     No evidence has become available since the time of application that the information given or used as part of the assessment referred to in paragraph 1128CA (3)(k) of Schedule 1 is false or misleading in a material particular.

880.225     The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010.

4                          To satisfy the Schedule 1 criteria, the appellant’s solicitors submitted to the delegate that he had been employed by ‘Apex Sportswear Limited’ of Mirpur, Dhaka in 1991 and took on the role of personnel director in 1993.  The submission continued that he stayed in that role until June 2000.  The appellant claimed in his visa application form that he first arrived in Australia as a student in 2000 and his ‘Additional Personal Particulars’ form noted his employment with Apex Sportswear, as well as what appear to be impressive academic qualifications obtained in Australia.  In reply to a request by the Department he supplied, through his solicitors, employment references from Apex Sportswear.

5                          On the basis of those documents, the Australian Institute of Management certified that he met the criteria for recognition as a ‘senior manager’ and that he satisfied the skills requirements for migration.  Thus item 1128CA(3)(k) of Schedule 1 was satisfied.

6                          It later came to light that the appellant had arrived in Australia in 1993 and had applied for a Protection Visa in 1999 through another migration agent.  In the ensuing s 57 letter, the delegate disclosed the appellant’s statement, made in the course of that Protection Visa application, that he had not worked in Bangladesh.  This was of course inconsistent with the claimed employment with Apex Sportswear.

7                          The delegate made his decision on the basis that the appellant failed to satisfy cl 880.224.  The Tribunal affirmed the decision on the same basis.  Indeed, the appellant admitted to the Tribunal that the evidence that he submitted was false.

8                          The appellant argued, in the Federal Magistrates Court, that cl 880.224 of Schedule 2 to the Regulations was invalid.

IN THE FEDERAL MAGISTRATES COURT

9                          The appellant submitted that cl 880.224 applies if there is any evidence of falsity from any source; that there is no requirement that a decision-maker be satisfied that the evidence is accurate.  Indeed, any enquiry into its accuracy or otherwise is irrelevant.  It was submitted that any evidence no matter how slight, unpersuasive or even false or malicious is sufficient to result in rejection of the application.  It was further submitted that a regulation with this effect fails to satisfy the standards of reasonableness in the exercise of the regulation-making power required under the general law.

10                        The Minister submitted that the clause could and should be read as requiring an absence of evidence considered persuasive by the decision-maker, and that read in that way the clause was neither unreasonable nor disproportionate.

11                        His Honour’s process of reasoning is encapsulated in the following extract from his reasons for judgment:

17.       … The clause requires an objective assessment by the decision maker as to whether any “evidence” had become “available” since the time of the visa application that information given or used in order to establish a valid application was false or misleading in a material particular, that is that the information was false or misleading in a particular of substance bearing on the purpose for which the information was provided.  I see no particular significance, in terms of the validity of the clause that it calls for an objective, rather than a subjective assessment. The question is whether the clause is manifestly unreasonable or disproportionate to the end sought to be achieved.

18.       I reject the applicant’s contention that the clause compels the rejection of a visa application if any evidence whatsoever becomes available of false or misleading information having been provided.  The evidence must point to information having been false or misleading in a “material particular”.  That goes to both the strength of the evidence and its relevance.  An intellectual process is required from the decision maker as to whether the evidence available points to the information having been false or misleading in a material particular. 

…

20.       … In my view also, the word “evidence” was chosen deliberately as the word “information” is used elsewhere in the clause.  The use of the word “evidence” in my view establishes that the clause requires something more than the mere existence of information suggestive of falsity. It requires some probative information. In other words, a decision maker cannot simply take any information suggestive of falsity as sufficient for the purposes of the clause. The decision maker must satisfy himself or herself that the information is acceptable as evidence pointing to false or misleading information having been given for the purposes of establishing the validity of the visa application and that the falsity or misleading information was material to the visa application.

12                        Testing this proposition with a hypothetical situation, his Honour considered that the decision-maker would have to satisfy himself of the strength and credibility of information.  It was only after doing so that he or she could ‘accept the information as evidence’.

13                        Having so considered the matter, his Honour came to the view that the clause did not fail to satisfy the tests of reasonableness or proportionality.  His Honour also noted that in this case the appellant admitted giving false or misleading information in support of his visa application.

THE APPEAL TO THIS COURT

14                        The issue on the appeal is efficiently summed up by the Minister in his written submissions in the following way:

(1)        This case turns on the validity of clause 880.224 of Schedule 2 to the Regulations.  This is so because, on any view of its meaning, the appellant failed to satisfy the criterion contained in the clause: there was ‘evidence’, which he accepted as correct, that information he had supplied for the purposes of his skills assessment was false in a material particular.  To succeed, the appellant must establish that cl 880.224 is invalid in its entirety.

(2)        The construction of cl 880.224 enters the picture because the asserted basis of invalidity depends on the expression ‘evidence’ having a particular meaning.

(a)        If ‘evidence’ is taken to mean any information rationally capable of supporting a particular conclusion, no matter how weak or unreliable, the clause will operate to prevent a visa application from succeeding in circumstances which might be thought surprising: where ‘evidence’ of falsity exists but is not believed or even taken seriously by the decision-maker.  The appellant contends for this construction and argues that, given this construction, cl 880.224 is unreasonable and goes beyond power.

(b)        If ‘evidence’ is read, in context, as meaning evidence that the decision-maker accepts or finds persuasive, the clause operates in a manner that is unexceptionable.  The appellant does not submit that it is invalid on this basis.

15                        The appellant submitted that:

(1)        ‘Evidence’, whether in the legal or lay sense, consists of information which includes an individual’s perception of facts.  ‘Evidence’ cannot exist in the absence of information.  Moreover, information is only ‘evidence’ if it is relevant to a particular proposition – something that has to be supported, denied, proved or disproved.  In contrast, ‘information’ can of itself be entirely separate from anything that has to be proved.

(2)        The existence of evidence is not dependent on its reliability, or any assessment thereof, other than that of basic relevance to the fact or proposition in issue.  That evidence is not accepted, or is rejected in a particular case, does not mean that it becomes something else.  The learned Federal Magistrate was in error in holding that the use of the word ‘evidence’ in the relevant provision invokes or requires a consideration or assessment of reliability.

(3)        In the case of cl 880.224, the proposition to which the ‘evidence’ (or non-existence thereof) must be relevant is that information given for the purposes of item 1128CA(3)(k) of Schedule 1 is false or misleading in a material particular.  On the plain wording of the provision, the existence of any evidence of falsity is sufficient to invoke the provision.  If the decision-maker goes further and considers the quality or reliability of the evidence, he or she is acting ultra vires because the test is whether there is ‘no evidence’ of falsity – not that the evidence be considered or assessed.

(4)        If that is correct then cl 880.224 is activated if there is any evidence no matter how slight, unpersuasive or even false or malicious.  Thus, a person who is clearly telling the truth would be denied a visa because of something so unpersuasive as an unsubstantiated accusation based on, for example, an anonymous ‘dob in’ letter.

(5)        A regulation with this effect fails to satisfy the standards of reasonableness in the exercise of the regulation-making power required under the general law (see Brunswick Corporation v Stewart (1941) 65 CLR 88 at 94, 97 and 99; Minister of Primary Industries and Energy v Austral Fisheries Pty Limited (1993) 40 FCR 381 at 382-383 and 401; D. Pearce and S. Argument, Delegated Legislation in Australia (3rd ed., 2005) paras [21.2] – [21.3]).

(6)        The Minister incorrectly submitted below that:

Clause 880.224 may be construed, without doing any violence to its language, as requiring the absence of evidence considered persuasive by the decision maker, that the information referred to was false or misleading.

The words ‘probative’ or ‘persuasive’ do not appear in cl 880.224 and, if they had been intended, it would have been easy enough to insert them.  

(7)        The fact that the words suggested by the Minister were not inserted is a strong indication that they were not intended, and for the Court to read the provision as if these words had been inserted would involve an impermissible act of judicial legislation.

16                        The Minister made three submissions in response:

(1)        First, if the construction advanced by the appellant led to the invalidity of the clause, that would be an overwhelming reason not to adopt it: Legislative Instruments Act 2003 (Cth), s 13(1)(c); Airservices Australia v Canadian Airlines International Limited (2000) 202 CLR 133 at [229] and [408]; as to statutes generally see Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at [28].  Similarly, if the consequences of a particular construction include absurdity, that construction is to be avoided: Quarm v Minister for Immigration and Citizenship (2008) 171 FCR 307 at [17]; Airservices Australia at [229] – [232] and [408] – [414]; Public Transport Commission (NSW) v J Murray-Moore (NSW) Pty Ltd (1975) 132 CLR 336 at 350; Widgee Shire Council v Bonney (1907) 4 CLR 977 at 983.  The alternative construction, giving ‘evidence’ a more confined meaning, is clearly an available one.  It is not necessary to label a provision as ‘ambiguous’ before entertaining alternative constructions of it: e.g. CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 at 408.

(2)        Second, quite apart from the need to avoid invalidity, the construction which treats ‘evidence’ as meaning persuasive evidence represents the preferable reading of the clause in its context.  The Federal Magistrate was correct in regarding the clause as requiring from the decision-maker an ‘objective assessment’ of whether the relevant information was false.

(3)        Third, the relevant regulation-making power is a power to prescribe ‘criteria’ for the grant of visas.  This is so whether s 31(3) of the Migration Act 1958 (Cth) (‘the Act’) is understood as a source of power in itself or as confirming or expanding the scope of the power in s 504 of the Act.  If the latter understanding is the correct one, the prescription of ‘criteria’ is clearly something that is ‘required or permitted to be prescribed’ within the meaning of s 504(1).  Section 31 shapes s 504, not the reverse: criteria that are prescribed for the purposes of s 31(3) do not need to conform to a judicial conception of ‘necessity’ or ‘convenience’ in order to be valid.

17                        This led the Minister to his alternative submission that if what is prescribed is truly a criterion for the grant of a visa, it is very difficult to see a basis upon which the regulation could be held to be beyond power.  This is so, the Minister submitted, even if the particular criterion erects a test which in the court’s opinion is irrational or unfair.

18                        The Minister expanded on this submission in the following way:

(1)        While there is a line of cases identifying reasonableness or rationality as a limit on regulation-making powers, this test is properly understood as ‘a way of stating the conclusion that no real connection with the purposes of the power can be seen’: Austral Fisheries at 383, citing Clements v Bull (1953) 88 CLR 572 at 577.  If a regulation is devoid of plausible justification it may mean that the regulation-maker has missed the point that Parliament intended him or her to deal with.  The courts do not analyse the wisdom of regulations as a criterion of validity in itself.

(2)        Analysis of the kind seen in the cases just referred to is difficult to apply to a power to prescribe ‘criteria’.  Either there is a criterion prescribed for the grant of a visa or there is not.  To describe a criterion as ‘irrational’, ‘capricious’ or ‘unreasonable’ is to do no more than express strong disapproval of the policy it reflects.  Such disapproval is not a basis for judicial review.

(3)        In order to point to an excess of power, it would be necessary to say that the purported ‘criterion’ was not a criterion for the grant of a visa at all.  The appellant’s criticisms of cl 880.224 do not go so far.

(4)        In particular, it cannot be sufficient (or even relevant) to point out that a criterion may result in rejection of a visa because of circumstances over which the applicant has no control and that the results may be harsh.  For example, an annual quota might be fixed for visas of a particular class; the quota for a year might be fixed at zero; or a class of visas might be abolished altogether.  Amendments which doom a visa application to failure may validly be made after the application is lodged: Quarm (2008) 171 FCR 307.

(5)        These examples serve as a reminder that s 31(3) deliberately leaves the formulation of immigration policies (and thus visa criteria) to the executive government.  The formulation of such policies takes place in the political realm, in the national interest as it is perceived from time to time, and the sanctions for adopting unwise or unfair policies are political.  It is relevant to note that the devising of criteria for the grant of visas to non-citizens does not involve any restriction on pre-existing civil rights or liberties.

CONCLUSION

19                        I have reached the conclusion that it is not necessary to address the Minister’s alternative or ‘fall-back’ position that, even if the construction of cl 880-224 contended for by the appellant is the only construction open, and even if such a construction is ‘irrational’, ‘capricious’ or ‘unreasonable’, the provision is nevertheless valid as being within regulation-making power.  This is so because, in my view, the construction contended for by the Minister is undoubtedly open and it is common ground that, if that construction is open, it is to be preferred because it does not lead to invalidity.

20                        In my view, the word ‘evidence’ is used, in contradistinction to the word ‘information’, which is also used in the clause, to impose a requirement that, whatever facts are conveyed by the material relied upon to establish that the information given to meet the requirements of item 1128CA(3)(k) of Schedule 1 was false or misleading in a material particular, are sufficiently probative to lead to that conclusion.

21                        In my view, that construction of the word ‘evidence’ is not only open, both in ordinary parlance and in a forensic context, but is more likely than not to be the correct construction.  The fact that such a construction avoids, even on the appellant’s premises, a conclusion of invalidity, provides a further reason as to why it should be embraced.

22                        For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:         20 August 2009