FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2014] FCA 281

THE COURT ORDERS THAT:

1.    The first respondent’s name be amended to ‘Minister for Immigration and Border Protection’.

2.    The appeal be dismissed.

3.    The first appellant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

1    On 26 October 2009, Ms Navjot Kaur applied to the Minister for Immigration and Citizenship, now the Minister for Immigration and Border Protection (Minister), for a Skilled Graduate (Temporary) Class VC, subclass 485 visa. This class of visa (now known as “Temporary Graduate”) is directed at prospective temporary migrants who have acquired skills in certain occupations deemed to be in demand in Australia. Ms Kaur’s nominated skilled occupation was hairdressing. Ms Kaur had successfully completed a Diploma of Hairdressing Salon Management in September 2009. In support of her visa application Ms Kaur relied on that qualification, together with a skills assessment (the skills assessment) that she had obtained from an entity named Trades Recognition Australia (TRA). The skills assessment certified that Ms Kaur satisfied certain skills criteria relating to training and work experience in her nominated occupation.

2    To obtain the skills assessment from TRA, Ms Kaur gave TRA information relating to her training and work experience. Amongst the material Ms Kaur gave to TRA was an undated work reference from Highlights Hair and Makeup Salon (the work reference). The work reference stated, amongst other things, that Ms Kaur had worked for the salon as an assistant hairdresser for in excess of 1,000 hours, had provided a full range of hairdressing services and had worked independently. Unfortunately for Ms Kaur at least some of the information in the work reference was false or misleading.

3    On 15 September 2011, a delegate of the Minister refused Ms Kaur’s visa application. The refusal was based on Ms Kaur’s failure to meet one of the criteria for the grant of the visa, criterion 4020. Ms Kaur’s failure to meet that criterion was effectively the result of a finding that the work reference contained information that was false or misleading in a material respect.

4    On 22 September 2011, Ms Kaur applied to the Migration Review Tribunal (Tribunal) for a review of the delegate’s decision to refuse her visa application. That application was unsuccessful. On 4 December 2012, the Tribunal affirmed the delegate’s decision.

5    Ms Kaur then applied to the Federal Magistrates Court, now the Federal Circuit Court, seeking to invoke that Court’s jurisdiction under s 476 of the Migration Act 1958 (the Act) and seeking an order that the decision of the Tribunal be quashed and that a writ of mandamus issue directing the Tribunal to determine her application according to law. That application was heard and dismissed by the primary judge in the Federal Circuit Court on 23 August 2013. It is against the judgment of the primary judge dismissing her application that Ms Kaur appeals to this Court.

6    Ms Kaur’s appeal turns to an extent on the proper construction of criterion 4020. That question of construction largely relates to timing issues that assume importance given the particular facts of Ms Kaur’s case. Criterion 4020 concerns the giving of information that is false or misleading in a material particular to, inter alia, a “relevant assessing authority”. At the time Ms Kaur provided the work reference to TRA, TRA was not a “relevant assessing authority” for the purposes of the Migration Regulations 1994 (Migration Regulations). By the time the delegate and the Tribunal made their decisions it was. The question is whether that matters in determining whether, for the purposes of criterion 4020, there was evidence at the time of the decision that Ms Kaur gave a relevant assessing authority information that was false or misleading in a material particular in relation to her visa application.

7    Both the Tribunal and the primary judge effectively resolved that issue against Ms Kaur and concluded that because TRA was a relevant assessing authority at the time of the Tribunal’s decision, the false information in the work reference was material to her visa application. It did not matter that TRA was not a relevant assessing authority at the time Ms Kaur gave it the information.

8    For the reasons that follow, neither the Tribunal nor the primary judge erred in so finding. Accordingly, Ms Kaur’s appeal must be dismissed.

9    It should be noted that the two other appellants are Ms Kaur’s partner and child. They applied for visas on the basis that they were members of Ms Kaur’s family unit. The refusal of their visa applications followed from the refusal of Ms Kaur’s visa application. They were parties to the application in Court below and they are parties to this appeal on that basis. No separate arguments were advanced on their behalf.

Legislative Framework

10    Section 45(1) of the Act relevantly provides that, subject to the Act and the Regulations, a non-citizen who wants a visa must apply for a visa of a particular class. Section 47(1) requires the Minister to consider a valid application for a visa. Section 65 provides that the Minister is to grant a visa if, amongst other things, the Minister is satisfied that the criteria prescribed for the visa by the Act or the Regulations have been satisfied. If not so satisfied, the Minster is to refuse the grant of the visa.

11    Section 31 of the Act relevantly provides that there are to be prescribed classes of visas and that the Regulations may prescribe criteria for a visa or visas of a particular class. Section 504 of the Act provides for the making of regulations prescribing matters that are required or permitted by the Act to be prescribed.

12    Regulation 2.03 of the Regulations relevantly provides that for the purposes of section 31(3) of the Act, the prescribed criteria for the grant to a person of a visa of a particular class are set out in Schedule 2 of the Regulations. The criteria relevant to the subclass of visa Ms Kaur applied for are set out in clauses 485.1 to 485.2 of Schedule 2 of the Regulations. It is unnecessary to set out all of the criteria. It is important to note, however, that clause 485.21 sets out the criteria to be satisfied at the time of the making of the visa application and clause 485.22 sets out the criteria to be satisfied at the time of the decision whether or not to grant the visa.

13    Relevant to this appeal are clauses 485.221(1) and 485.224 of Schedule 2. These clauses set out criteria to be satisfied at the time of decisions. At all relevant times clause 485.221(1) was in the following terms:

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

14    At the time Ms Kaur applied for her visa, clause 485.224 provided as follows:

The applicant;

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

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

15    By the time the delegate made her decision, clause 485.224 had been amended. At that time it provided as follows:

The applicant;

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

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

    (Emphasis added)

16    The relevant amendment to clause 485.224 was made by regulation 5 and Schedule 3 of the Migration Amendment Regulations 2011 (No 1) (Amending Regulations). Regulation 5(2) of the Amending Regulations relevantly provides that the amendments made by Schedule 3 apply in relation to an application for a visa made, but not finally determined, before 2 April 2011. The amendment accordingly applied to Ms Kaur’s visa application because her application had been made on 26 October 2009 but had not been determined by 2 April 2011.

17    Schedule 3 of the Amending Regulations also inserted criterion 4020 into Schedule 4 of the Regulations. Schedule 4 of the Regulations sets out criteria known as the public interest criteria (see regulation 1.03). Criterion 4020, as inserted by the Amending Regulations, provides as follows:

4020

(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 the 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.

Note Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.

18    As with the amendment to clause 485.224, criterion 4020 as inserted in Schedule 4 of the Regulations applied to Ms Kaur’s visa application. It was a criterion to be satisfied at the time of the decision.

19    Criterion 4020 refers to a “relevant assessing authority”. The Regulations (regulation 1.03) define relevant assessing authority as meaning a body specified under regulation 2.26B. Regulation 2.26B provides that the Minister may, by instrument in writing, specify a person or body as the relevant assessing authority for a skilled occupation for the purposes of an application for a skills assessment. The Minister must not make such an instrument unless the person or body has been approved in writing as the relevant assessing authority for the occupation by the Education Minister or the Employment Minister.

20    It is common ground that TRA was not a relevant assessing authority prior to 1 October 2011. Whilst the Minister had, at some time prior to October 2011, signed an instrument specifying TRA as a relevant assessing authority for various skilled occupations, the specification in the instrument was invalid because prior approval in writing had not been given by either the Minister for Education or the Minister for Employment. It appears, however, that this defect was not discovered until 2011.

21    The anomaly concerning the specification of TRA as a relevant assessing authority was rectified in September 2011. By instrument dated 28 September 2011 (IMMI 11/068) the Minister relevantly specified, for the purposes of regulation 2.26B(1)(a), that TRA was a relevant assessing authority for a number of skilled occupations, including the occupation of hairdresser. The instrument commenced on 1 October 2011 and was stated to apply to a person who had applied for a visa before 1 July 2010. It accordingly applied to Ms Kaur. By instrument made by the Minister on 12 June 2012 (IMMI 12/068), which commenced on 1 July 2012, the Minister revoked IMMI 11/068. However, the new instrument again relevantly specified that TRA was a relevant assessing authority for a number of skilled occupations including hairdresser. It also was stated to apply to visa applicants who had applied before 1 July 2010. It accordingly applied to Ms Kaur.

The Delegate’s and Tribunal’s Decision and Reasons

22    The delegate refused Ms Kaur’s visa application on the basis that she was not satisfied that Ms Kaur met criterion 4020. As a result, Ms Kaur did not satisfy clause 485.224. The delegate noted that in support of her visa application Ms Kaur had provided a skills assessment and that to obtain the skills assessment Ms Kaur had supplied documents to TRA that purported to evidence the fact that she had acquired more than 900 hours relevant work experience as an assistant hairdresser at Highlights Hair and Makeup Salon. The delegate found, however, that she was not satisfied that Ms Kaur was ever employed by Highlights Hair and Makeup Salon. Accordingly, the delegate concluded that there was evidence that Ms Kaur had given information to TRA that was false or misleading in a material respect and therefore did not satisfy criterion 4020.

23    The delegate did not give any consideration to whether the information Ms Kaur supplied to TRA was not false or misleading in a material particular within the meaning of criterion 4020 because TRA was not a relevant assessing authority at the time Ms Kaur supplied the information to it. That may have been because both the delegate and Ms Kaur were operating under the false assumption or understanding that TRA was a relevant assessing authority at all relevant times.

24    By the time that Ms Kaur’s review application was heard by the Tribunal, however, it was known that TRA was not a relevant assessing authority at the time Ms Kaur supplied the relevant information to it, or at the time she applied for the visa. This knowledge appears to have come about as a result of the decision of the Federal Circuit Court in the unrelated matter of Singh v Minister for Immigration and Citizenship [2012] FMCA 145 (Singh). In that matter the Court found that the purported specification of TRA as a relevant assessing authority by an instrument dated 16 June 2011 (IMMI 11/034) was invalid because neither the Minister for Education nor the Minister for Employment had given their consent in writing as required by regulation 2.26B(1A). In Singh, however, TRA had not been validly specified as a relevant assessing authority by the later instrument (IMMI 11/068) at the time of the Tribunal’s decision. That was not the case in relation to Ms Kaur’s application. By the time Ms Kaur’s application to the Tribunal was heard, the anomaly concerning TRA’s specification as a relevant assessing authority had been remedied.

25    Before the Tribunal, Ms Kaur submitted that the information which she provided to TRA, even if it was false or misleading (which was not then conceded by her) could not be false or misleading in a material particular for the purposes of criterion 4020 because TRA was not a relevant assessing authority at the time the information was supplied to it. The Tribunal rejected that submission. In the Tribunal’s reasons (Reasons) it found that criterion 4020 is a “time of decision criterion” and that the relevant legislative instrument specifying TRA to be a relevant assessing authority was IMMI 12/068 (Reasons at [116]). The Tribunal was satisfied that IMMI 12/068 was valid and therefore at the time of its decision TRA was a relevant assessing authority.

26    The Tribunal then concluded (Reasons at [119]):

On the evidence before it, the Tribunal finds that the first named applicant provided information to TRA, now the relevant assessing authority, in relation to her employment as an Assistant Hairdresser at Highlights Hair and Makeup Salon. The Tribunal finds that such information was given by the first named applicant to TRA in relation to obtaining a favourable skills assessment for the purpose of her Application for Skilled visas. The Tribunal finds that such information was relevant to criterion cl.485.221 which requires the first named applicant to obtain an assessment of her skills from the relevant assessing authority (TRA) as suitable for her nominated occupation of Hairdresser. The Tribunal finds that the skills assessment was issued on the basis of the first named applicant’s employment at Highlights Hair and Makeup Salon.

27    The Tribunal then went on to find that information provided by Ms Kaur to the TRA was false or misleading (Reasons at [145]):

    Having considered all of the evidence and the submissions, the Tribunal finds that the letter from Highlights Hair and Makeup Salon provided by the first named applicant to TRA did not accurately reflect the first named applicant’s employment at Highlights Hair and Makeup Salon as she did not work independently as an Assistant Hairdresser and did not perform the full range of duties of a hairdresser during the time she worked at the Salon. The Tribunal finds, on the evidence before it, that the letter from Highlights Hair and Makeup Salon provided by the first named applicant to TRA for the purpose of obtaining a favourable skills assessment contained information that was false or misleading at the time it was given.

28    On the question whether the information was false or misleading in a material particular, the Tribunal considered that the relevant test was whether the information is “of moment or of significance, not merely trivial or inconsequential” and “relevant to the purpose for which it is made”: Minister for Immigration Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 352 (Dela Cruz) (Reasons at [146]). It then found that the information in the work reference was of moment and significance (Reasons at [147]) and was relevant to the purpose of obtaining a favourable skills assessment (Reasons at [148]). The Tribunal accordingly found that the information in the work reference was false or misleading in a material particular.

Proceedings in the Federal Circuit Court

29    In her application to the Federal Circuit Court Ms Kaur challenged the Tribunal’s decision on a number of bases. Only one is relevant to this appeal. Ms Kaur contended that the Tribunal misinterpreted or misapplied the law to the facts by finding that the work reference letter given to the TRA was “false or misleading in a material particular” for the purposes of criterion 4020. The basis of the contention was that the work reference related to a minimum of 900 hours of work experience that was purportedly required by TRA as a standard precondition for a skills assessment, but that “[b]ecause TRA was not empowered to set 900 hours of work experience as a standard precondition for a skills assessment at the time the assessment application was lodged, and even at the time it was granted, the employment reference letter could not have been false or misleading in a material particular” (paragraph 1(iii)(a) of Ms Kaur’s amended application).

30    Ms Kaur relied on the decision of Murphy J in the Batra v Minister for Immigration and Citizenship (2013) 212 FCA 84 (Batra) in support of her contention that the TRA did not have the power to set conditions for a skills assessment because it was not a relevant assessing authority at the time the assessment application was lodged or granted.

31    The primary judge rejected Ms Kaur’s argument. His Honour found that the situation considered by Murphy J in Batra was distinguishable. Whilst his Honour did not take issue with the contention that TRA was not a relevant assessing authority at the time it purported to set the work experience requirement, or at the time Ms Kaur submitted information to it, his Honour found that TRA was a relevant assessing authority by the time of the Tribunal’s decision. Accordingly “representations made in the work reference were material both to the TRA assessment and PIC 4020” (paragraph [71] of the judgment under appeal - Judgment). It is implicit in his Honour’s reasoning that he considered that the relevant time to consider the materiality of the false or misleading information was at the time of the decision by the Minister or by the Tribunal on review.

Appeal Grounds and Submissions

32    Ms Kaur’s notice of appeal contains one ground:

The learned judge erred by finding that public interest criterion 4020 of schedule 4 of the Migration Regulations 1994 (“the regulations”) applied to the First Appellant in relation to her skills assessment obtained from Trades Recognition Australia and for the purposes of clause 485.244 of the regulations…

33    It is apparent both from the particulars of this ground provided in the notice of appeal and from the submissions advanced by Ms Kaur that the particular finding challenged by this ground is the primary judge’s finding in paragraph [71] of the Judgment. The essence of Ms Kaur’s submission is that criterion 4020 has a “temporal limitation”, that limitation being that the information must be false or misleading at the time it is given. This is said to flow from paragraph (5)(a) of criterion 4020, the terms of which Ms Kaur contends are clear and unambiguous. Ms Kaur also submits that this construction of criterion 4020 is supported by the apparent purpose of the provision, which is to prevent a visa applicant who provides false or misleading evidence from later withdrawing or disavowing reliance on it. Ms Kaur also submits that such a construction of criterion 4020 would protect a visa applicant from the situation where information that is not false or misleading when it is submitted later becomes false or misleading because of a change in the law.

34    Ms Kaur relies, as she did before the primary judge, on one aspect of the decision of Murphy J in Batra, namely his Honour’s finding at [72] that on the facts of that case the Tribunal was wrong to find that 900 hours of work experience was a standard precondition for the relevant skills accreditation. Murphy J made that finding on the basis that the standard had been purportedly set by TRA, but that TRA was not empowered to set the standard because it was not, at the time, a relevant assessing authority. Ms Kaur submitted that the same finding should be made here in relation to the precondition of 900 hours of work experience that was addressed in the work reference. It must follow, so Ms Kaur submits, that the information in the work reference could not have been false or misleading in a material particular at the time it was provided.

35    The Minister’s submission, on the other hand, is straightforward. It is that the plain words of paragraph (5) of criterion 4020 indicate that whilst the falsity of information is to be tested at the time it is given, the question of the materiality of the false information is to be tested at the time the Minister makes a decision. It is accordingly irrelevant that TRA was not a relevant assessing authority at the time the information was provided to it. It is equally irrelevant that at that time TRA may not have been empowered to set the precondition concerning 900 hours of work experience. The Minister submits that not only is Ms Kaur’s construction of criterion 4020 inconsistent with the clear meaning of text, it is inconsistent with the purpose of the criterion, which is to maintain the integrity of the visa system by ensuring that a visa can be refused by the Minister if false information relevant to the visa criteria is given by an applicant.

Resolution of the appeal

36    Ultimately the key question for resolution in this appeal is whether, on the facts as found by the Tribunal, it was open to the Tribunal to find (as it did) that Ms Kaur did not satisfy criterion 4020 (and therefore did not satisfy clause 485.224). The parties contend that the answer to this question turns solely on the construction of criterion 4020 and, in particular, paragraph (5) of criterion 4020. Ms Kaur contends that the proper construction of paragraph (5) is that the question whether certain information is false or misleading in a material particular is to be tested at the time the information is given. If that is right, Ms Kaur submits, in effect, that the information here could not have been false or misleading in a material particular because it could not have been relevant to any of the visa criteria. That is because TRA was not a relevant assessing authority at the time the information was given to it by Ms Kaur.

37    The Minister contends that the materiality element which is in subparagraph (5)(b) of criterion 4020 is to be addressed at the time of the Minister’s decision. If that is right, the Minister says that the information was relevant to clause 485.221 because by the time the Minister made his decision TRA was a relevant assessing authority.

38    In my opinion, however, Ms Kaur’s appeal must fail whichever is the correct construction of criterion 4020. On any view of criterion 4020 it was open to the Tribunal to find that Ms Kaur had failed to satisfy criterion 4020, that being a criterion to be satisfied at the time of decision.

39    The Tribunal found that the information in the work reference was false or misleading. Ms Kaur does not challenge that factual finding in this appeal. Even if the materiality element (whether the information was false or misleading in a material respect) is required to be strictly addressed at the time Ms Kaur gave the work reference to TRA, it was open to the Tribunal to conclude that the information in the work reference was relevant to a criterion that the Minister may consider when he came to decide Ms Kaur’s visa application. That criterion was clause 485.221.

40    Ms Kaur does not dispute that she gave the work reference to TRA so she could obtain a skills assessment from it, believing at the time that TRA was a relevant assessing authority. She did this so that, when the Minister came to decide her visa application, she would meet clause 485.221, a criterion Ms Kaur was required to satisfy at the time of the decision. In these circumstances, it is open to conclude that at the time she gave the relevant false or misleading information to TRA, it was relevant to clause 485.221. It was relevant because in considering whether to grant the visa, the Minister would have had to consider whether the skills assessment was such that Ms Kaur satisfied clause 485.221. It is immaterial that, unbeknownst to anyone at the time, TRA had not been validly specified as a relevant assessing authority and that, as a result, clause 485.221 could not in fact have been satisfied by the TRA skills assessment at that time.

41    It follows that it was open to the Tribunal to conclude that the information in the work reference was false or misleading in a material particular, as defined in paragraph (5) of criterion 4020, however that paragraph is construed.

42    In any event, criterion 4020 should not be construed in the narrow and restrictive way contended by Ms Kaur. Information can be false or misleading in a material particular within the meaning of criterion 4020 even if its relevance to criteria the Minister may consider when making a decision on the application only arises or becomes apparent when the Minister makes the decision. There is no requirement that the relevance and materiality of the information to the criteria must be tested at the time the information is given by the visa applicant and at no later time. Rather, relevance and materiality may be considered at any time up to the time the Minister makes his decision. This construction of criterion 4020 is supported by the text of criterion 4020, as well as the subject matter, scope and purpose of the relevant provisions: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; Cooper Brookes (Wollongong) v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320.

43    The expression “false or misleading in a material particular” appears in many statutes. Its meaning has been considered by this Court in the context of other provisions of the Act, albeit provisions which do not contain a definition like paragraph (5) of criterion 4020. In Dela Cruz, this Court considered the meaning of the expression in the context of sectio 20 of the Act, which at that time provided that a person who made a statement to an immigration officer that was false or misleading in a material particular was an illegal entrant. In relation to the meaning of the expression “false or misleading in a material particular” the Court said (at 352):

The expression “false in a material particular” appears in many statutes, both in this country and overseas. It has been discussed in R v Lord Kylsant [1932] 1 KB 442; Murphy v Griffiths [1967] 1 WLR 333; [1967] 1 All ER 424; R v Mallett [1978] 1 WLR 820; R v M [1980] 2 NSWLR 195; R v Brott [1988] VR 1. In the last mentioned case, Brooking J pointed out that the concept is well understood. As his Honour said (at 11): “an assertion that a document is false is to be taken as an assertion that is [sic] is false in a material particular.” The term “material” requires no more and no less than that; the false particular must be of moment or of significance, not merely trivial or inconsequential.

Section 20(1) does not apply to statements that are merely false or misleading; there is the added requirement that the statement must be false or misleading in a material particular. In the context of s 20(1), a statement will be false or misleading in a material particular if it is relevant to the purpose for which it is made: see Jovcevski v Minister for Immigration, Local Government and Ethnic Affairs (unreported, Federal Court, Lockhart J, 12 October 1989). A statement will be relevant to that purpose if it may - not only if it must or if it will - be taken into account in making a decision under the Act as to the grant of the visa or entry permit in respect of which the statement is made.

44    The text of paragraph (5) of criterion 4020 is not dissimilar to the meaning given to the relevant expression in Dela Cruz. Nothing in Dela Cruz suggests that the question of whether a false statement “may be taken into account in making a decision under the Act” is only to be tested having regard to the circumstances that existed at the time the statement was made.

45    The text of paragraph (5) of criterion 4020 tends to suggest that the question of materiality, which turns on the relevance of the information to any visa criteria, is not tied to any particular time. Paragraph (5) effectively divides the expression “false or misleading in a material particular” into two elements. The first element, addressed in subparagraph (5)(a), is whether the information is false or misleading. It is clear from the express terms of subparagraph (5)(a) that this element must be addressed at the time the information is given. The second element, addressed in subparagraph (5)(b), relates to the materiality of the information. The only requirement in subparagraph (5)(b) is that the information is “relevant to any of the criteria the Minister may consider when making a decision on the application, whether or not the decision is made because of that information.” Unlike subparagraph (5)(a) there is no express statement in subparagraph (5)(b) that the question of relevance must be tested or addressed at any particular time. The division of the definition of the expression into two elements, one expressly tied to a particular time and the other, the materiality element, not tied to a particular time, suggests that the materiality element can be addressed or tested at any time up to and including the time the Minister makes his decision.

46    This interpretation of the text of the criterion 4020 is also supported by the context and apparent purposes of criterion 4020. The most significant contextual consideration is that criterion 4020 is a criterion to be satisfied at the time of the Minister’s decision. Given that compliance with criterion 4020 is to be considered at the time of decision, it would be odd if the Minister was constrained to consider the circumstances as they existed at some earlier time. Here, it would be a strange result if the Minister was constrained to consider the materiality of the false information having regard to the circumstances as they existed at the time the information was given.

47    The apparent statutory purpose of criterion 4020 also supports a broad construction, not a construction restricting consideration of the relevance of the false or misleading information to a particular time. Criterion 4020 is one of a number of criteria in Schedule 4 of the Regulations that permit the Minister to grant or refuse visas having regard to considerations of the public interest. In relation to criterion 4020, it is obviously considered to be in the public interest for the Minister to be able to refuse a visa if there is evidence that the applicant has furnished false or misleading information that is relevant to a criterion for the visa. That is not just because applicants should be dissuaded from providing false information. It is also because visa decisions should be made on the basis of truthful and accurate information. In this case, for example, in broad terms a criterion for the grant of a skilled graduate visa is that the applicant does in fact possess the requisite skills. It is obviously in the public interest for the Minister to refuse such a visa if it appears, at the time of decision, that information relevant to the criterion that is intended to ensure that the applicant has those skills (clause 485.221) is false or misleading. That statutory purpose would be stymied, and certainly not advanced, if the Minister could only consider whether the information was relevant in that sense at time that it was provided by the visa applicant.

48    Contrary to Ms Kaur’s submissions, there is nothing in the text, context or legislative history to suggest that the purpose of criterion 4020 is to prevent a visa applicant who has provided false or misleading information from later withdrawing or disavowing reliance on the information. In any event, if materiality can be tested at any time up to the point of decision, an applicant who tries to withdraw or not rely on false information could still be found to have failed to satisfy criterion 4020. Nor is there any indication of a legislative intention to impose a temporal limitation to protect a visa applicant from the situation where false information provided by the applicant only becomes relevant to a visa criterion as a result of a change in the law after the information is provided. The apparent purpose of criterion 4020 is to allow for refusal even in such a situation. It is not in the public interest for a visa to be granted in circumstances where information provided by an applicant is found to be false or misleading at the time of decision.

49    Ms Kaur’s reliance on Batra is also misconceived. No finding in Batra assists her case. The observations by Murphy J that TRA did not have the power to set a precondition for a skills assessment because it was not a relevant assessing authority at the time were plainly obiter. More significantly, the facts and circumstances in Batra were different to the facts and circumstances here. First, the anomaly concerning TRA’s specification as a relevant assessing authority had not been rectified by the time of the decision of the Tribunal in Batra. Second, the issue in Batra was whether a TRA skills assessment was a bogus document for the purposes of criterion 4020. Murphy J accepted, on the facts, that the TRA assessment was not an effective skills assessment because TRA was not a relevant assessing authority. His Honour nevertheless found that it was a bogus document. Here, Ms Kaur never submitted that the TRA assessment was a nullity and there is no issue about whether it is a bogus document. By the time of the Tribunal’s decision, TRA was a relevant assessing authority for the purposes of Ms Kaur’s visa application.

50    On the proper construction of criterion 4020, it was open to the Tribunal to find that, on the facts as found, Ms Kaur did not satisfy that criterion (and therefore did not satisfy clause 485.224). At the time the Tribunal made its decision, the false or misleading information in the work reference was relevant to a criterion for the grant of a visa to Ms Kaur, namely clause 485.221. It was relevant to that criterion because it provided the basis for the skills assessment that the Minister was required to consider in deciding if the criterion was satisfied. That was the case even though TRA was not a relevant assessment authority at the time Ms Kaur provided the information to it. The information was therefore false or misleading in a material particular within the meaning of criterion 4020. Accordingly, it was open to conclude that Ms Kaur did not satisfy criterion 4020. The primary judge was correct to reject Ms Kaur’s contention to the contrary.

51    Ms Kaur’s appeal must therefore be dismissed with costs.

Associate:

Dated: 27 March 2014