FEDERAL COURT OF AUSTRALIA

Chung v Minister for Immigration and Border Protection [2015] FCA 163

THE COURT ORDERS THAT:

1.    The appeal is dismissed with costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

1.    INTRODUCTION

1    This is an appeal from the decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal). By its decision given on the 24 February 2014, the Tribunal affirmed the decision of a delegate of the Minister not to grant to the appellants Skilled (Provisional) (Class VC) (subclass 485) visas (the visas) under s 65(b) of the Migration Act 1958 (Cth) (the Act).

2    For the reasons developed below, the appeal must be dismissed with costs. First it was not necessary for the Tribunal to find that either or both of the appellants had knowingly provided a bogus document or false information before finding that Public Interest Criterion (PIC) 4020 for the grant of the visa as required by cl 485.224 was not met. It sufficed for the Tribunal to find that information or document was purposefully false. Secondly, any concerns as to the manner in which the Tribunal responded to the application for an adjournment are not material where the Tribunal was entitled to proceed without a hearing under s 360(2)(c) of the Act.

3    Finally, by way of procedural matters, I note that appellants appeared unrepresented and did not file written submissions in support of the appeal notwithstanding the direction by the Registrar to file and serve a written outline of submissions made on 23 September 2014. The Minister filed detailed written submissions in accordance with those directions. While the appellants had initially considered that an interpreter was unnecessary, the hearing on 24 February 2015 was adjourned when it became apparent that the appellants, for whom English is not their native language, were experiencing difficulties in following the proceedings and wished to have the proceedings interpreted. The hearing was relisted on 26 February 2015 by which time an interpreter had been arranged.

2.    BACKGROUND

2.1    The application for the visas and consideration of the applications by the delegate

4    The appellants applied for the visas on 7 January 2011. The Principal Visa Applicant (PRA) was Mrs. Chung. The fate of the visa application by the second appellant, Mr Gill, was dependent in the first instance on the success of Mrs. Chung’s application.

5    On 20 February 2012, the delegate sent an email to the appellants requesting a written response to adverse information. In the email, the delegate pointed to the requirement for the grant of a subclass 485 visa that the applicant satisfies PIC 4020. At the relevant time, PIC 4020 required that:

(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.

6    The term “bogus document” is defined in s 97 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. (emphasis added)

7    The email advised that all applicants for a 485 visa must satisfy this requirement and that the failure to do so may result in each person included in the application being refused the grant of a visa. The email continued that, as there is evidence suggesting that the applicants have provided, or caused to be provided, a bogus document or false or misleading information in relation to the visa application, they may fail to satisfy the PIC 4020 requirement with the result that the visa application may be refused. Specifically, the delegate alleged that:

… your 485 application, currently under consideration by the Department, was lodged with the assistance of a business known as S & S Migration, who have been found to have lodged applications to the Department containing false and misleading information. Whilst you have no agent declared in your application, the Department has identified a file with your personal details and the application reference numbers in the office of S & S Migration.

In addition, as part of your application you answered ‘yes’ to the question ‘have you applied to a relevant assessing authority for an assessment of your skills for your nominated occupation?’ Further, in your application you provided the following reference indicating a successful skills assessment TRA10/045636624. This reference was referred to TRA for verification. TRA have no record of providing you this skills assessment. TRA also have no record of ever providing you with any skills assessment. It is therefore alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa.

8    The email extended an opportunity to the appellants to comment within 28 days on the information and also to specify if they believed there are any compelling circumstances falling within PIC 4020(4) to justify the waiver of any noncompliance with PIC 4020 and to grant the visa.

9    The appellants did not respond to the delegate’s email and on 9 May 2012, the delegate refused to grant the visa. The delegate found that the provision of the TRA reference in the application to indicate that the appellants had a valid skills assessment was false and misleading at the time it was given; nor was there any evidence to suggest that the appellants had subsequently been provided with a skills assessment or that any error has been made by TRA. As such there was evidence before the delegate of a failure to meet PIC 4020(1)(a).

10    On 23 May 2012, the appellants applied to the Tribunal for review of the delegate’s decision. By letter dated 25 June 2013, the Tribunal invited the appellants to appear on 24 July 2013 to give evidence and present arguments relating to the issues arising in their case in accordance with s 360 of the Act. On 23 July 2013, the appellants sent a medical certificate signed by a medical practitioner on the practitioner’s letterhead to the Tribunal stating that Mrs. Chung “will be unfit for work during the period Tuesday 23rd to Thursday 25 July 2013 inclusive. She should be able to return to normal duties on Friday 26 July 2013.” Counsel for the Minister submitted that the Tribunal treated the letter as an application for an adjournment. The medical certificate is stamped as received on the same day. A case note on the Tribunal’s file made on 24 July 2013 at 11:00 am by a Tribunal Member stated that:

10.37am On member request and following on from receipt of a medical certificate stating the PRA is unfit for work I was asked to phone to advise the medical certificate does not state she is unfit to provide evidence so I was asked to clarify. The member is willing to take evidence by phone if necessary. The member also asked whether the PRA can provide a copy of the delegates decision.

When I rang the mobile number [redacted] there was no answer and the call went to an automated voice mail. I left a message advising receipt of a medical certificate and for the PRA to return my call urgently.

11    The MRT hearing record is crossed through with the words “Cancelled PRA did not appear”. The hearing was not rescheduled.

12    On 29 July 2013, the Tribunal wrote to the appellants inviting them to comment or respond by 21 August 2013 to certain information which the Tribunal provisionally considered would be the reason, or a part of the reason, for affirming the decision under review. After stating that the Tribunal had not made up its mind about the information, the particulars of the information provided in the letter (the adverse information) were as follows:

1)    It is alleged that you lodged your 485 visa application with the assistance of the business known as S&S Migration, who has been found to have lodged applications to the Department containing false and misleading information.

2)    The Department identified a file with your personal details and application reference numbers in the office of S&S Migration.

3)    You provided a skills assessment reference TRA10/045636624 from Trades Recognition Australia (TRA), but TRA have no record of providing you with this skills assessment or ever providing you with any skills assessment and there is no evidence of any error made.

4)    It is alleged that you provided false and misleading information to the Department in relation to your application for a 485 visa, a consequence of which is an adverse finding of your credibility as you provided the above noted TRA reference to indicate that you did have a valid skills assessment which is a requirement to the grant of the 485 visa.

5)    Are there any compelling circumstances that affect the interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident or eligible New Zealand citizen; which justify the granting of the visa?

6)    What evidence is there that any person included in the visa application can satisfy the primary criteria specified in each of the sub-classes within the Skilled (Provisional) Class VC category?

7)    Has a visa previously been refused to you or any member of the family unit on the grounds of failure to satisfy Public Interest Criteria (PIC) 4020(1) in the 3 years before the application was made?

13    The letter advised that the information is relevant to the review because “it will inform the Tribunal in respect of the credibility of your evidence. A consequence of an adverse finding of credibility is potentially an adverse decision in your matter.” Importantly, the letter further advised that:

If the tribunal does not receive your comments or response within the period allowed or as extended, the tribunal may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the tribunal to give evidence and present arguments. (emphasis in the original)

14    In a letter received by the Tribunal on 20 August 2013, Mrs. Chung sought an extension of time to respond to the adverse information. As a result, on 21 August 2013 the Tribunal granted an extension of time for the receipt of any comments or responses to 28 August 2013. The letter from the Tribunal to both appellants advising of the extension also advised, in line with the letter dated 29 July 2013, that:

If the tribunal does not receive your comments or response by 28 August 2013, the tribunal may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before the tribunal to give evidence and present arguments. (emphasis in the original)

2.2    The decision of the Tribunal

15    On 24 February 2014, the Tribunal affirmed the decision of the delegate not to grant the appellants the visas.

16    In its reasons, the Tribunal found that it was satisfied that the notice of hearing was sent to the updated address provided by the appellants. It referred to the medical sickness certificate received the day before the hearing and noted that there was no such certification of unfitness for Mr Gill. The Tribunal then stated at [11] that “Neither applicant attended the hearing at the scheduled date and time. Attempts to contact the applicants by phone on the day were not successful.” The reasons of the Tribunal do not expressly consider the implicit application for an adjournment of the hearing or state how it was resolved.

17    The Tribunal found that the appellants had not satisfied the requirements of PIC 4020(1) . Specifically, it found at [23]:

Having considered the material before it and in the absence of any sworn evidence or further submitted material, the Tribunal is satisfied that the applicant has given, or caused to be given a bogus document (with reference to the definition in s.97 of the Act), or information that is false or misleading in a material particular – specifically, the skills assessment reference to TRA 10/045636624 from Trades Recognition Australia.

18    Nor had the appellants raised any circumstances for the purpose of PIC 4020(4) to justify a waiver of non-compliance with cl 485.224 and the grant of the visas. In the circumstances, the Tribunal affirmed the decision not to grant the visas as the appellants did not meet the requisite criteria.

3.    CONSIDERATION

3.1    Whether it was necessary for the Tribunal to find that the appellants knowingly provided a bogus document or false information?

19    In line with the application for judicial review in the Court below, the notice of appeal essentially complained that the Federal Circuit Court ought to have found that the Tribunal failed to give weight to the fact that the appellants were misled by their migration agent and did not know what he was doing with their applications, and that they were the victim of a scam. Specifically the appellants pleaded in the notice of appeal that:

Federal Circuit court dismissed my case and failed to realise the jurisdictional error in Tribunals judgment. MRT refused my review application stating that I don’t satisfy PIC cl.4020(1). Member asked himself question that at the time of decision cl 4020(1) should be satisfied. I was a student. An Australian registered migration Agent Mr Jatinder Singh advised us and more students that we can get work visa for 4 years. I was happy to hear that and didnot not know that he was applying subclass 485 visa. I was under understanding that I will get work visa which is legitimate as per law. The consultant is Australian registered Migration Agent so I Trusted him. My visa was refused by DIABP stating that bogus document is being provided. Later tribunal looked into case and asked me to give documents or compassionate circumstances, I was not aware of all these things done by Mr Jatinder so my case is “exceptional circumstances beyond my control”. The very trust I put on Australian Registered Migration Agent had been broken and I was being cheated. I am a victim of crime commited by Mr Jatinder singh. Tribunal member failed to put weight on this fact that we were misled and I didnot even know what Mr Jatinder singh is doing with our visa. We simply were said that we are eligible to get work visa. We didnot provide any information to Immigration. All false documents/information was given by Mr Jatinder Singh without our knowledge. Tribunal member failed to recognise the fact that we were victim of crime commited by Mr Jatinder singh. The circumstances in our case were beyond our control as we were not aware of this scam. Tribunal member made error in his judgement.

20    As the Court below acknowledged, it is clear from the grounds of appeal and Mrs. Chung’s submissions in this Court that the appellants are extremely upset about the predicament in which their migration agent has apparently placed them. In this regard it must also be recalled, as the initial email from the Department on 20 February 2012 acknowledged, that the involvement of the appellants’ migration agent in the preparation of the appellants’ application was uncovered by the Department when it identified a file relating to the application with a migration agent found to have lodged applications containing false or misleading information. This lends some support to the appellants’ position that they have fallen victim to an unscrupulous agent.

21    However, that does not in itself suffice to establish an error in the Tribunal’s decision.

22    First, the Court below rightly held at [22] that it is not necessary for the Tribunal to determine whether a visa applicant knowingly provided false information before finding that there has been a failure to comply with PIC 4020. It is necessary for the Tribunal to find only that the information was purposefully false. As Buchanan J (with whose reasons Allsop CJ and Rangiah JJ agreed) held in Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169; [2014] FCAFC 42:

a)    PIC 4020 is not directed to innocent, unintended or accidental matters (at [32]). The Minister’s submission that PIC 4020 applied to any “objectively” untrue statement or information provided by an applicant, which was material or relevant to satisfaction of a visa criterion, even if made completely innocently, was rejected (at [41]).

b)    It was not necessary for the visa applicant to be knowingly involved in the giving of false information for PIC 4020 to apply. No element of knowledge by visa applicant was necessary (at [21], [27] and [43]).

c)    However, for PIC 4020 to apply, “it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.” (at [43]).

23    As to the last of these elements, Buchanan J had earlier explained at [33] that:

In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. To take the example of bogus documents, a counterfeit document is not produced accidentally. Similarly, to charge that a statement is false is not to say only that it is wrong. The accusation potentially imports some element of knowledge or intention on somebody’s part, and in my view does so in the present context.

24    His Honour explained the purpose underlying the provision consistent with this construction at [49]:

… the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application. Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant. It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application. It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so. In many cases that would be impossible and would defeat the apparent intent of the provision.

25    Applying this construction, it is apparent that there was evidence before the Tribunal of information associated with the visa application having the necessary quality of purposeful falsity, namely, the inclusion of a skills assessment reference of which TRA had no record and evidence that the TRA had no record of any skills assessment reference referable to the appellants. It follows from this that there is no error in the Tribunal’s finding that PIC 4020 was not satisfied. It was not incumbent upon the Tribunal to go further to find that the appellants or one of them had been knowingly involved in the giving of that false information or document.

26    In this regard, the decision of the Full Court of the Federal Court in Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 (Prodduturi (FCAFC)) does not assist in resolving the issues here, as the Minister submitted. The issue before the Federal Circuit Court (FCC) in Prodduturi was whether the migration agent had acted fraudulently in the preparation and lodgement of the visa application ostensibly by the appellant such that the appellant ought not to have responsibility as principal for his actions (Kaur & Ors v Minister for Immigration & Anor; Prodduturi v Minister for Immigration & Anor [2013] FCCA 1805 at [29] and [31] (quoted in Prodduturi (FCAFC) at [20])). The Full Court found that the FCC erred in finding that the appellant had failed to prove the falsity of the migration agent’s actions when it was not only accepted by all parties that the migration agent (also S & S Migration) had acted fraudulently, but that fraud was the subject of uncontradicted evidence (at [20]-[25] (Perram and Perry JJ, with whose reasons Gleeson J relevantly agreed)). However, the treatment of the facts by the FCC being flawed, the Full Court would have remitted the matter to the FCC for a retrial, save for reasons not relevant here (at [29]). In the circumstances, therefore, where the Full Court did not know what the facts were, it held that “it would be inappropriate to express any views on the law which would, at best, be hypothetical observations” (at [29]).

3.2    Whether the Tribunal could proceed without further action where the appellants had not responded to the invitation to comment on the adverse information

27    It is apparent from the terms of the invitation to respond to the adverse information and the subsequent letter extending time that the appellants:

(a)    were advised of the particulars of the information that the Tribunal considered would be the reason for affirming the delegate’s decision;

(b)    were advised of the relevance of that information together with the consequences of it being relied upon in affirming the delegate’s decision; and

(c)    were given an opportunity to comment or respond to that adverse information;

in compliance with the procedural fairness obligation on the Tribunal under s 357A(1) of the Act.

28    That being so, the Minister rightly submitted that the consequence of the failure to comment on, or respond to, the information within the extended time meant that the Tribunal could proceed to a decision on the review without taking any further action to obtain the appellants’ views on the information by virtue of s 359C(2) of the Act. Furthermore, as s 359C(2) applied, s 360(3) prescribed the further consequence that the appellants were thereafter not entitled to appear before the Tribunal. Section 360 of the Act provides that:

(1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)  Subsection (1) does not apply if:

(a)  the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)  the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)  subsection 359C(1) or (2) applies to the applicant.

(3)  If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. (emphasis added)

29    While I do not necessarily accept the Minister’s submission that this means that the Tribunal no longer has any discretion to permit an applicant to appear, I did not hear full argument on the point and it is not necessary to decide that here. The important point for present purposes is that there was no longer any entitlement to appear.

3.3    The Tribunal’s treatment of the adjournment application

30    I had raised concerns at the hearing as to the manner in which the Tribunal responded to the application for an adjournment of the hearing. There was, for example, no mention of the outcome of any consideration of the application in the Tribunal’s reasons and the Hearing Record simply stated that the hearing had been “cancelled”. However, the consequences prescribed by s 360(3) of the Act mean that any such concerns could not in my view raise doubt over the validity of the decision to affirm the delegate’s decision. It may also have been, for example, that the Tribunal in all of the circumstances decided to leave the question of whether it would reschedule a hearing until it had received any comments or response to its letter extending an invitation to comment on the adverse material. I do not consider that there is anything in the Act which suggests that such a course is not open to the Tribunal.

4.    CONCLUSION

31    For these reasons, the appeal is dismissed with costs.

Associate:

Dated:    5 March 2015