FEDERAL COURT OF AUSTRALIA

Thind v Minister for Immigration and Border Protection [2014] FCA 207

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

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

REASONS FOR JUDGMENT

1    On 9 August 2008, the appellant (“Mr Thind”) lodged an application for a Skilled (Residence) (Class VB) visa (“the Visa”). Mr Thind’s visa application was rejected by a delegate of the first respondent (“the Minister”) and that decision was affirmed by the Migration Review Tribunal (“the Tribunal”). Mr Thind then sought judicial review of the Tribunal’s decision before the Federal Circuit Court of Australia. The subject of this appeal is the Federal Circuit Court’s judgment which dismissed Mr Thind’s application for judicial review. That judgment is published as Thind v Minister for Immigration and Border Protection [2013] FCCA 1438.

2    The task of the Federal Circuit Court in dealing with the judicial review proceedings brought by Mr Thind was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“the Migration Act”) and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.

3    The task of this Court on the appeal brought by Mr Thind is to determine whether the judgment of the Federal Circuit Court is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

4    The appeal raises for determination whether the Tribunal’s finding that Mr Thind failed to meet the requisite criteria provided for by the Migration Regulations 1994 (Cth) (“the Regulations”) involved jurisdictional error in the manner I will hereafter identify.

5    By reason of the fact that the primary judge made orders suppressing the names of particular parties, it will be necessary to refer to certain parties in these reasons by an acronym.

6    The delegate of the Minister decided to refuse to grant the Visa to Mr Thind as he did not satisfy the requirements of cl 886.225 of Sch 2 of the Regulations because the delegate found that Mr Thind did not satisfy Public Interest Criterion 4020. As the Tribunal stated, the issue before it was whether Mr Thind met Public Interest Criteria 4020 as required by cl  886.225 for the grant of the Visa.

7    The criteria that Mr Thind needed to satisfy the Tribunal of was relevantly dealt with in cl 886.2 of Sch 2 of the Regulations. It is helpful to set out two provisions within that clause. Clause 886.223(1) provided:

The skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation.

Clause 886.225 provided:

The applicant

(a)     satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021; and

(b) if the applicant had turned 18 at the time of application - satisfies public interest criterion 4019.

8    It is also necessary to set out the terms of Public Interest Criterion 4020, which 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; 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 the application;

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

(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.

9    Public Interest Criteria 4020 uses the term “bogus document”. That term was relevantly defined in s 97 of the Act as follows:

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.

10    It is helpful to refer to further background facts set out in the Tribunal’s reasons. At [46] of its reasons, the Tribunal identified that Mr Thind had nominated the skilled occupation of pastry cook and that he had provided a copy of a skills assessment dated 1 April 2008 from Trades Recognition Australia (“TRA”) in support of his application for the Visa. As the Tribunal noted, the TRA assessment confirmed Mr Thind’s skills had been assessed by TRA as competent for the occupation of pastry cook. That assessment was based in part on evidence provided by Mr Thind that he had satisfied the requirement to complete 900 hours of relevant work experience.

11    At the request of the Department, Mr Thind provided to the Department a copy of a work reference signed by a person I shall call “TG,” who purported to be the owner or manager of a cake shop I shall call “AC”. The reference stated that Mr Thind had undertaken work experience at AC as a pastry cook between February 2007 and February 2008 for a period of more than 900 hours. The reference had been used by Mr Thind to support the assessment made by TRA.

12    The findings made by the Tribunal of particular relevance are set out at [53] of the Tribunal’s reasons as follows:

However, the Tribunal is satisfied that there is evidence establishing that false work references were provided from persons seeking permanent residence in Australia who were claiming to have been employed for 900 hours at [AC] and these were comparable to the work reference provided by the applicant. In the context of this, and extremely limiting supporting evidence establishing that the applicant was employed at [AC], which the Tribunal has found it is reasonable to expect could have been provided, as well as the Tribunal’s inability to test the applicant’s evidence during a hearing, the Tribunal does not accept that the applicant was employed by [AC] for 900 hours as he has claimed and does not accept that [TG’s] statement that he was employed as a Pastry Cook at [AC] is truthful. The Tribunal finds that the skills assessment was obtained because of a false or misleading statement made by [TG] in the work reference in which she stated that that the applicant was employed at [AC] for 900 hours. The Tribunal is, therefore, satisfied that there is evidence that the applicant has given or caused to be given a bogus document to the Minister or an officer, in relation to the application for the visa. The Tribunal finds that the bogus document is the TRA assessment that was provided to the Department in relation to the application for the visa on 9 August 2008. The Tribunal finds that the TRA assessment provided to the Department is bogus because the Tribunal reasonably suspects that it was obtained because of a false or misleading statement (being that made by [TG] in the work reference) as provided by s 97(c) of the Act. Accordingly, the Tribunal finds that there is evidence before the Minister that the applicant has given or caused to be given, to the Minister, or an officer, a bogus document in relation to the application for the visa. The Tribunal finds, therefore, that the applicant does not meet PIC 4020(1).

Consideration

13    Mr Thind’s notice of appeal in this Court is as follows:

Trade Recognition wasn’t relevant assessing authority for the occupation of pastry cook and applicant meet Public Interest Criterion.

14    It seems to me that on a fair reading of the Notice of Appeal there are, in essence, two grounds asserted. The first is that the relevant assessing authority had not been properly recognised. The second is that Mr Thind did meet Public Interest Criterion 4020. I will approach my consideration of the matters raised on that basis.

Ground 1

15    As I have said, this ground seems to be based on Mr Thind’s contention that the relevant assessing authority, which I assume to be TRA, had not been duly recognised in relation to the occupation of pastry cook. That ground, as I have expressed it, seems to reflect ground 1 agitated by Mr Thind before the primary judge. Relevantly, the ground was there expressed as follows:

The Tribunal erred in concluding that Trade Recognition Australia is a relevant assessing authority for the occupation of cook.

16    It is evident from the Tribunal’s reasons that the Tribunal did not consider whether TRA or any other authority was the relevant assessing authority for the purposes of cl  886.223 of Sch 2 of the Regulations. That was not an issue that the Tribunal needed to consider in determining whether Mr Thind’s application for the Visa should be rejected because of his failure to satisfy Public Interest Criterion 4020. The primary judge dealt with this ground of challenge as though it raised the proposition that TRA had not been validly appointed and that the invalidity was relied upon to contend that in the circumstances an assessment which was unauthorised could not be a “bogus document” within the meaning of Public Interest Criterion 4020.

17    The primary judge held that even if it were the case that TRA was not a relevant assessing authority, that circumstance was irrelevant to the issue as to whether a bogus document had been given to the Minister contrary to the proscription specified by Public Interest Criterion 4020. There is, in my view, no error in the primary judge’s determination of that issue for the reasons his Honour gave at [15] to [18]. The approach taken by the primary judge on that issue is now reinforced by the reasoning of Murphy J in Batra v Minister for Immigration and Citizenship (2013) 212 FCA 84 at [60]-[61].

18    In my view, ground 1 of the notice of appeal, as I have identified it, is misconceived because it is based upon a challenge to a finding not made by the Tribunal in circumstances where no such finding was necessary. Even if a generous approach to the construction of the ground actually agitated was taken, as the primary judge seems to have done, the ground is nevertheless misconceived for the reasons I have identified.

19    Accordingly, what I have identified as ground 1 must be rejected.

Ground 2

20    As I have earlier stated, ground 2 asserts that Mr Thind did meet Public Interest Criterion 4020. That ground, as I have identified it, reflects ground 2 agitated before the primary judge, which was in the following terms:

The Tribunal erred in law in finding the Applicant did not meet Public Interest Criterion (PIC) 4020(1) in Schedule 4 to the Migration Regulations 1994 (Regulations).

Particulars

(a)    The Tribunal erred in construing that information given to Trade Recognition Australia were [sic] information given to a relevant assessing authority for the purposes of determining whether the applicant [met] PIC 4020(1).

(b)    The Tribunal misconstrued or misapplied the definition of “information that is false or misleading in a material particular” as defined in PIC 4020(5). Thus [the Tribunal] failed to consider, from the outset, whether that information was capable of being information that is false or misleading in a material particular, for the purposes of the applicant’s application.

21    In relation to that ground, the primary judge at [22] said:

The onus was on the applicant before the Tribunal to make out his case, and to endeavour to satisfy the Tribunal that he met the criteria for the grant of a subclass 886 visa. It was open to the applicant to appear at the Tribunal hearing, but the applicant chose not to. If the applicant had chosen to appear or chosen to provide further evidence to the Tribunal, it was open to the applicant to, for example, adduce evidence about, or from the maker of, the work reference as to its veracity, or to have a person provide any other evidence of the applicant’s attendance for work experience purposes at the [AC]. As a consequence, the Tribunal was put in a position where there was “extremely limiting supporting evidence” for the proposition that the applicant was employed at [AC], and an inability to test the applicant’s evidence “and that must include both the applicant himself and any person called in support of the applicant’s case” at the Tribunal hearing. In the circumstances, it was open to the Tribunal to make the findings that it did in relation to the bogus document on the evidence which was before it, and to find that the applicant did not satisfy the criteria for the grant of a subclass 886 visa.

[Footnotes omitted.]

22    In submissions made by Mr Thind this morning, Mr Thind contended, in essence, that the evidence about the use of bogus references produced by TG in relation to persons working at AC, did not directly relate to him. Nevertheless, as the primary judge correctly stated, it was open to the Tribunal to determine on the evidence that was before it, including the failure by Mr Thind to put before the Tribunal evidence which might well have been put by him, to come to the view that it was reasonable to suspect that the TRA assessment was obtained because of a false or misleading statement and was therefore a bogus document. In those circumstances, I do not consider that an appealable error has been demonstrated in relation to the judgment of the primary judge. Ground 2, as I have identified it, must also be rejected.

Orders

23    In light of those conclusions, the appeal must be dismissed with costs.

Associate:

Dated:    12 March 2014