FEDERAL COURT OF AUSTRALIA

Patel v Minister for Immigration and Border Protection [2015] FCA 1061

THE COURT ORDERS THAT:

1.    The name of the Second Respondent is changed to “Administrative Appeals Tribunal”.

2.    The appeal is dismissed.

3.    The Appellants are to 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    The Appellants are husband and wife. Both were born in India.

2    In March 2009 they jointly applied for a Skilled Graduate (Temporary) (Class VC, subclass 485) visa. A delegate refused that application in June 2010 and the delegate’s decision was relevantly affirmed by the Migration Review Tribunal (the “Tribunal”) in January 2015.

3    An application for judicial review was a dismissed by the Federal Circuit Court in June 2015: Patel & Anor v Minister for Immigration & Anor [2015] FCCA 1502. The now-Appellants were legally represented before that Court. A Notice of Appeal was filed in this Court later in June 2015.

4    The appeal is to be dismissed with costs.

The application & the conditions to be satisfied

5    In making the application for a subclass 485 visa the husband nominated his occupation as that of a “nurseryperson”.

6    Clause 485.221(1) of Sch 2 of the Migration Regulations 1994 (Cth) (the “Migration Regulations”) set forth the criteria to be satisfied at the time of decision as follows:

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.

The “relevant assessing authority” relied upon by the husband was an entity called “Trades Recognition Australia”. Clause 485.224(a) of Sch 2 further provided that an applicant had to satisfy “public interest criteria … 4020” (“PIC 4020”). Public Interest Criterion 4020(1), in turn, provided as follows:

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.

At the time of the delegate’s decision, s 97 of the Migration Act 1958 (Cth) (the “Migration Act”) defined a “bogus document” as follows:

Interpretation

In this Subdivision:

…

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.

…

7    Part of the material relied upon by the husband to bring himself within these provisions was a skills assessment that had been performed by Trades Recognition Australia. That assessment was dated 11 March 2009. On 8 January 2010, however, Trades Recognition Australia further advised the husband that the skills assessment that it had earlier provided “has been withdrawn”. It further advised that the work reference he had provided “was found to be fraudulent”.

8    On 29 June 2010 the application for the visa was refused by a delegate of the Minister. The delegate was of the view that “no information or documentation has been provided to evidence that you meet the requirement of subclause 485.221(1)”.

9    The Appellants sought review of that decision by the Tribunal.

The reasons & findings of the Tribunal

10    After one decision of the Tribunal had been set aside by consent orders made by the Federal Circuit Court of Australia, the Tribunal again affirmed the delegate’s decision in January 2015.

11    Given the conclusion of Trades Recognition Australia and the withdrawal of its earlier assessment, it was perhaps not surprising that the Tribunal expressed reservation as to the reliability of the claims being made. Documents which had been relied upon by the husband to support his claims included:

    an undated letter on a letterhead of “Rocky Gardens & Landscaping” stating an address at 46 Kirkham Drive, Greenvale. There was a signature over the name “Rocky Romeo (Owner/Manager)”;

    a letter dated 19 September 2009, again on a letterhead of “Rocky Gardens & Landscaping” and a signature over the name “Rocky Romeo (Owner/Manager)”;

    a statutory declaration sworn by the husband in November 2011; and

    a statutory declaration purportedly sworn by Mr Rocky Romeo on 23 November 2011.

12    Paragraph [17] of the Tribunal’s reasons summarises its reservations and concerns as follows:

In July 2014 the Tribunal wrote to the applicants under s359AA of the Act inviting them to comment on or respond to the following information in the possession of the Tribunal including some provided by the Department in response to a summons:

•    an employment reference issued to Mr Patel by Rocky Gardens and Landscaping was fraudulently produced or procured

•    the employment reference was provided by Mr Patel or on his behalf to TRA to obtain a positive skills assessment in his nominated occupation

•    Carmine Amarante has pleaded guilty in criminal proceedings in Victoria to the manufacture and sale of work references matching the employment reference submitted to TRA to obtain Mr Patel’s skills assessment

•    Amarante has admitted that the work references were fraudulent in content and that they were created to assist clients to apply for permanent residence in Australia

•    Mr Patel’s work reference was found in the possession of Amarante as a consequence of the execution of a search warrant at his premises

13    The Tribunal reviewed the evidence and was clearly alive to the question of whether it was the husband who had provided a “bogus document” to the Minister and the Tribunal. It was also clearly alive to any question that may have arisen as to whether Trades Recognition Australia had been specified as a “relevant assessing authority”. Its reasons for decision thus state in relevant part as follows (without alteration):

46.    The provisions of PIC 4020 are set out in more detail below. Considering PIC 4020 involves considering whether there is a bogus document or information that is false or misleading in material particular given to a relevant person. Recent authority indicates that PIC 4020 is not engaged if that person was TRA and the document or information was given to TRA before the time it was specified as a relevant assessing authority: see Sharma v MIBP [2014] FCCA 2821. In the present case this means in that if the Tribunal were considering only the act of giving the work reference to TRA PIC 4020 would not be engaged.

47.    The work reference has now been given to the Tribunal, but it is sufficient for the Tribunal to consider whether the skills assessment is a bogus document.

48.    If the skills assessment is valid it would be possible for it to be a bogus document. But even if the skills assessment were of no legal effect, for the reason that it had been revoked or for some other reason, it could still be a bogus document: see Palikhe at [30]-[31]. See also Mudiyanselage v MIAC [2012] FMCA 887 and Mudiyanselage v MIAC [2013] FCA 266; Sekhon v MIBP [2013] FCCA; 2834 and Bajwa v MIBP [2014] 2890.

49.    On the evidence before the Tribunal Mr Patel has given the skills assessment or caused the skills assessment to be given to the Department (the Minister) and to the Tribunal.

The Tribunal thereafter went on to conclude as follows:

Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?

52.    The term ‘information that is false or misleading in a material particular’ is defined in PIC 4020(5) and the term ‘bogus document’ is defined in s.97 of the Act … In contrast to the definition of ‘information that is false or misleading in a material particular’ in PIC 4020(5), the reference in s.97 to a document that was obtained because of a ‘false or misleading’ statement has no requirement that it be relevant to a criterion for the grant of the visa: Batra v MIAC [2013] FCA 274.

53.    The requirement in PIC 4020(1) not to provide a bogus document, or false and misleading information, applies 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: PIC 4020(3). It also applies whether or not the document was provided by the applicant knowingly or unwittingly. While PIC 4020 refers to information that is false, in the sense of purposely untrue, it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged: Trivedi v MIBP [2014] FCAFC 42.

54.    Through his agents the applicant has given the skills assessment to the Minister and to the Tribunal. He acknowledged that in his evidence to the Tribunal.

55.    On the evidence before the Tribunal the skills assessment was obtained because of statements made in the work reference.

56.    The test in this case is whether the skills assessment is a document that the Tribunal reasonably suspects is a document that was obtained because of a false or misleading statement, whether or not made knowingly.

57.    The Tribunal does reasonably suspect the skills assessment is such a document. That is on the basis of the evidence that the Tribunal had before it, in particular the evidence that Mr Amarante pleaded guilty to the manufacture and sale of work references and that Mr Patel’s work reference was found in Mr Amarante’s possession.

The Tribunal expressed its conclusion as follows:

61.    The Tribunal concludes that the skills assessment is a bogus document.

62.    In summary, considering all the evidence, including what Mr Patel has put forward, the Tribunal is unable to conclude that there is no evidence that he has given, or caused to be given, to the Minister or the Tribunal a bogus document.

63.    Therefore, Mr Patel does not meet PIC 4020(1).

The Tribunal then considered whether compliance with PIC 4020 should be waived. It decided not to do so and went on to affirm the delegate’s decision.

The Ground of Appeal

14    A Notice of Appeal was filed in this Court on 24 June 2015. The sole Ground of Appeal was there expressed as follows (without alteration):

1.    The Court erred in finding that the second respondent correctly applied PIC4020

Particulars

a)    That the Tribunal in making a finding to the effect that PIC 4020 applied at all ignored the decision of His Honour Driver FM (as he then was) in Singh v Minister for Immigration and Anor [2012] FMCA 145.

b)    At the time of the making of the application for the visa subclass 485 on 28 March 2009 the TRA was not validly appointed and that the requirement for a skills assessment in clauses 485.214 and 484.221(1) were ultra vires in that they were incapable of being met by reason of the failure to appoint TRA at the relevant time.

c)    Further, the Tribunal in finding that PIC4020 applied in this case misapplied PIC4020(5) as the basis for the decision to affirm the decision to refuse the visa at the first instance and in doing so construed that the incorporation of PIC4020 into the statutory scheme by amendments to the Migration regulations on 2 April 2011.

d)    The information, alleged to be false or misleading in a material particular was required by operation of criterion PIC 4020(5) to be both false and misleading at the time it is given and 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. The Tribunal fell into jurisdictional error by in effect finding that, at any state, the relevant information was material or relevant to the criteria the Minister may consider.

e)    PIC 4020(5) does not permit by the words “relevant to any of the criteria” an interpretation to the effect that the incorporation of PIC 4020 into the statutory scheme intended that PIC4020 would of itself be relevant to any of the criteria. If the contrary was intended then subclause (5) would have no effect.

The need for leave – the status of Trades Recognition Australia as at 2009 & 2015

15    The principal Ground of Appeal sought to be relied upon at the hearing of the appeal was a contention that Trades Recognition Australia was not a “relevant assessing authority”.

16    The focus on whether Trades Recognition Australia was a “relevant assessing authority” arose by reason of reg 2.26B(1) and (1A) of the Migration Regulations. At all relevant times, that Regulation provided as follows:

(1)    Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:

(a)    a skilled occupation; and

(b)    one or more countries;

for the purposes of an application for a skills assessment made by a resident of one of those countries.

(1A)    The Minister must not make an instrument under subregulation (1) unless the person or body has been approved in writing as the relevant assessing authority for the occupation by:

(a)    the Education Minister; or

(b)    the Employment Minister.

The Appellants’ argument was that Trades Recognition Australia had not been specified by an instrument in writing for the purposes of this Regulation.

17    Notwithstanding a submission to the contrary advanced by Counsel on behalf of the Appellants, no such argument was advanced for resolution before the Federal Circuit Court.

18    Before that Court, the Amended Application filed in May 2015 identified the two Grounds of Review then relied upon as follows:

1.    The Tribunal erred in its interpretation of item 4020 in Schedule 4 to the Migration Regulations 1994.

Particulars

The Tribunal failed to reach a state of satisfaction as to whether the alleged false information or bogus document had the requisite quality of purpose falsity to engage item 4020.

2.    The Tribunal failed to comply with the requirements of the exhaustive statement of the natural justice hearing rule in s357A in that it failed to give to the Applicant particulars of information which it considered would be the reason, or part of the reason for affirming the decision under review in the manner required by ss 359A or 359AA of the Act.

The argument sought to be advanced on appeal, with great respect, cannot be brought within either of these two Grounds. As particularised, the argument does not fall within the first Ground. And the reasons for decision of the Federal Circuit Court Judge certainly do not seek to address the argument.

19    If the argument is to be advanced before this Court, leave to do so is required. Ordinarily an appellate Court will not allow an appellant to depart from the basis upon which he has conducted his case at first instance: Metwally v University of Wollongong (1985) 59 ALJR 481 at 483 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ. But leave may be granted where it is expedient in the interests of justice to do so: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ. Their Honours there observed, inter alia, that leave “should generally be refused” where there has been “no adequate explanation for the failure to take the point” and where the proposed new ground “seems to be of doubtful merit”: [2004] FCAFC 158 at [48]. And when considering an application for leave, it is not necessary to “enter upon a full consideration of the grounds”. To do otherwise would make the requirement for leave meaningless: Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24] per Heerey, Moore and Goldberg JJ.

20    Leave to raise the proposed new Ground should be refused primarily because:

    there has been no adequate explanation for the departure from the manner in which the case was conducted before the Federal Circuit Court – the only explanation provided being that the Appellants are now represented by different legal representatives; and

    the proposed new argument is not directed to an issue which only emerged for consideration after the hearing before the Federal Circuit Court but was one to which attention previously had been directed by the Tribunal.

The assessment undertaken by Trades Recognition Australia was undertaken in March 2009; that assessment was “withdrawn” in January 2010. The only “instrument in writing” specifying Trades Recognition Australia as a “relevant assessing authority” for the purposes of reg 2.26B which was in evidence was one issued in 2011. That was a date, of course, after the assessment had been made; but it was also a date prior to the decision of the Tribunal.

21    As para [46] of the Tribunal’s reasons for decision records, the Tribunal was aware of a potential difficulty caused by the lack of specification of Trades Recognition Australia as at 2009. It was presumably because it was aware of that difficulty that the Tribunal (at para [47]) recorded that it was “sufficient for the Tribunal to consider whether the skills assessment is a bogus document”. Having resolved that issue unfavourably to the Appellants, it was unnecessary to consider any further basis upon which the delegate’s decision may also have been affirmed. Of present relevance is the fact that the lack of specification of Trades Recognition Australia as at 2009 was an issue that had been “flagged” by the Tribunal and could have been agitated before the Federal Circuit Court.

22    The refusal of leave extends to the refusal of leave to contend that PIC 4020(1) “is not engaged if the document or information was given to [Trades Recognition Australia] before the time it was specified as a relevant assessing authority”.

23    The present case is not one in which the significance of the chronology of events only became apparent to the Appellants after the decision of the Federal Circuit Court. Presumably a decision was made by those previously representing the Appellants as to the arguments to be advanced before that Court. It is now, with respect, too late to depart from the forensic course plotted before that Court.

24    Even had a contrary view been reached, it is not at all self-evident why the lack of requisite status of Trades Recognition Australia as at 2009 would have assisted the Appellants. If the assessment made in 2009 could not be relied upon because it was not an assessment of a “relevant assessing authority”, the Appellants could not have satisfied cl 485.221.

A bogus document?

25    The rejection of leave to raise the principal argument sought to be relied on during the appeal, together with such other arguments as depended upon the lack of status of Trades Recognition Australia as at 2009, leaves for consideration so much of Ground 1 which sought to impugn the conclusions of the Tribunal relating to whether the assessment provided by Trades Recognition Australia was a “bogus document”.

26    The relevant findings of the Tribunal appear at paras [52] to [57] of its reasons for decision, including its reasoning at para [53] that it was “not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue in order for PIC 4020 to be engaged”. The Tribunal’s reference to Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42, (2014) 220 FCR 169 was presumably a reference to the following observations of Buchanan J in that decision, namely:

Purposely untrue

[29]    I turn to the character or quality of the documents or information to which PIC 4020 is directed.

[30]    Much, of course, depends on the context and perceived purpose of PIC 4020 as well as the terms in which the prohibition in question is expressed. In the present case, I think the intention and purpose of PIC 4020 are clearly revealed by the text and a consideration of the purpose for which the information is provided.

[31]    First, the references in PIC 4020(1) and (3) to a “bogus document or information that is false or misleading in a material particular” are ones which in my view give an indication of the character of improper material to which PIC 4020 is addressed. That construction is strengthened by reference to the interaction between PIC 4020 and s 97 of the Migration Act.

[32]    It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.

[33]    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.

[34]    Secondly, consideration of the circumstances of the introduction of PIC 4020 confirms me in the view derived from the text of PIC 4020 that it is not directed to information or documents which are not tainted in the way I have indicated.

[35]    PIC 4020 was introduced as part of Schedule 4 to the Migration Regulations 1994 (Cth) by amendments made by the Migration Amendment Regulations 2011 (No. 1) (Cth). The context in which PIC 4020 was introduced is not unimportant to a proper understanding of its purpose and intended effect.

His Honour later continued:

[49]    For the reasons I have already given, it should be accepted that PIC 4020 is directed to information or documents which are purposely untrue. It seems to me to be clear from the same analysis that 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: (2014) 220 FCR at 179 to 180.

Chief Justice Allsop and Rangiah J agreed with Buchanan J. These observations of Buchanan J have since been endorsed and applied in other decisions of this Court: Kaur v Minister for Immigration and Border Protection [2014] FCA 1276 at [56] per Barker J; Patel v Minister for Immigration and Border Protection [2015] FCAFC 22 at [32] per Flick J (Edmonds J agreeing); Chung v Minister for Immigration and Border Protection [2015] FCA 163 at [22] to [24] per Perry J.

27    In summarising the reasons for decision of the Tribunal in the present proceeding, the Federal Circuit Court Judge accurately observed:

[16]    The Tribunal stated that the issue before it was whether the skills assessment from TRA was a bogus document such that the first applicant failed to satisfy cl.485.224 (PIC 4020). It found that the first applicant had given the skills assessment to the Department and then went on to consider whether it reasonably suspected that it was obtained because of a false or misleading statement. It concluded that it did for three reasons: first, Mr A pleaded guilty to the manufacture and sale of work references and the employment reference provided to the TRA by the first applicant was found in Mr A’s possession; second the dates referred to in the reference as being the period during which the first applicant had worked for Mr Romeo were inconsistent with the fact that he was out of the country during part of that period; and third, there were apparent differences in the signatures that purported to be Mr Romeo’s signatures.

It was for the Tribunal alone to give such weight to these factors as it considered appropriate. The Judge went on to refer to para [53] of the Tribunal’s reasons for decision and concluded:

[29]     If that were not sufficient to deal with this ground, the balance of the Tribunal’s reasoning would be. As noted above, one of the matters relied upon by the Tribunal in reaching its conclusion that the skills assessment was a bogus document was that the employment reference by reason of which the assessment was obtained, was a false or misleading statement. This was because Mr A had pleaded guilty to the manufacture and sale of work references and that the first applicant’s employment reference was found in Mr A’s possession. With respect to the applicants’ argument, the Tribunal’s reliance upon that evidence can only mean that it implicitly found that the employment reference was purposely untrue. There can be no other inference drawn from the fact that a person had been convicted of manufacturing such references and was also in possession of the very reference in question.

28    Notwithstanding the considerable ingenuity with which Counsel for the Appellants sought to advance arguments on their behalf, no error is discernible in the reasons for decision of the Tribunal and no appellable error in the reasons of the Federal Circuit Court Judge. The facts as found by the Tribunal were findings of fact open to it on the material. There has been no error in the application to these facts of the relevant legal principles.

CONCLUSIONS

29    Many of the arguments advanced on appeal were directed to submissions never addressed to – and, accordingly, never resolved by – the Federal Circuit Court Judge. No reason emerged as to why it was “expedient in the interests of justice” to permit the Appellants to depart from the manner in which their case had been advanced before the Federal Circuit Court. Leave to depart from the arguments previously advanced has thus been refused. This Court should not become a de facto Court of first instance with the prior hearing being but a preliminary skirmish: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ.

30    To the extent that the balance of Ground 1 of the Notice of Appeal is to be construed as seeking to contend appellable error in the manner in which the Federal Circuit Court Judge dismissed the two Grounds relied upon below, no appellable error has been exposed. There was no self-evident error in the manner in which the argument founded upon an alleged breach of s 359A or s 359AA of the Migration Act was rejected.

31    The name of the Second Respondent should be changed from that nominated in the Notice of Appeal from the “Migration Review Tribunal” to the “Administrative Appeals Tribunal”. The Tribunals Amalgamation Act 2015 (Cth) (the “2015 Act”) amalgamated the former Migration Review Tribunal, and other Tribunals, under the auspices of the Administrative Appeals Tribunal. The 2015 Act came into operation on 1 July 2015.

THE ORDERS OF THE COURT ARE:

1.    The name of the Second Respondent is changed to “Administrative Appeals Tribunal”.

2.    The appeal is dismissed.

3.    The Appellants are to pay the costs of the First Respondent.

Associate:    

Dated:    1 October 2015