FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v Sandhu [2016] FCA 130

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The respondents are to pay the appellant’s costs.

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

REASONS FOR JUDGMENT

SIOPIS J:

1    The question underlying this appeal is whether the primary judge erred in finding that the Migration Review Tribunal (the Tribunal) acted unreasonably in denying the first respondent, Ms Sandhu, an opportunity to put further material before the Tribunal.

2    On 17 December 2009, Ms Sandhu and her spouse, the second respondent, applied for skilled graduate subclass 485 visas by an application which was submitted electronically by their migration agent.

3    Relevantly, cl 485.221 of Sch 2 of the Migration Regulations 1994 (Cth) provided that a primary criterion to be met in respect of an application for a skilled graduate subclass 485 visa was that at the time of the decision, the visa applicant’s skills had been assessed as suitable for a nominated skilled occupation. Clause 485.221(1) relevantly provided 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.

4    Further, an applicant for a skilled graduate subclass 485 visa was also required to satisfy at the time of the decision, cl 485.224 of Sch 2 of the Migration Regulations. Clause 485.224 required that an applicant must meet Public Interest Criterion 4020 (PIC 4020) which 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 a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

(3)    To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

(4)    The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:

(a)    compelling circumstances that affect the interests of Australia; or

(b)    compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa.

(5)    In this clause:

information that is false or misleading in a material particular means information that is:

(a)    false or misleading at the time it is given; and

(b)    relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.

(Original emphasis.)

5    Section 97 of the Migration Act 1958 (Cth) dealt with the definition of a “bogus document” and provided 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.

6    In order to satisfy the skills assessment requirement, the respondents’ visa application relied upon a letter dated 12 February 2010 from Trades Recognition Australia (TRA), which stated that Ms Sandhu’s application for a skills assessment as a cook had been successful.

7    However, on 11 January 2011, TRA advised the Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (the department), that the skills assessment in respect of Ms Sandhu’s application had been revoked because the work reference from a restaurant referred to as “Last Train to Bombay” which had been supplied by the migration agent in support of Ms Sandhu’s application for a skills assessment as a cook, was fraudulent.

8    On 24 July 2012, a delegate of the appellant refused the visa application on the basis that Ms Sandhu had supplied a bogus document supporting her claim to have completed 900 hours work experience at the “Last Train to Bombay” restaurant. The delegate found that Ms Sandhu had not satisfied the criterion in cl 485.224 of Sch 2 of the Migration Regulations because she had not met PIC 4020 and, therefore, refused to grant Ms Sandhu’s visa application.

9    On 3 August 2012, Ms Sandhu lodged an application for review by the Tribunal of the delegate’s decision.

10    Ms Sandhu attended a hearing of the Tribunal on 27 August 2013. At the hearing, she was questioned about the bogus document used in support of her first skills assessment application. The Tribunal gave Ms Sandhu until 10 September 2013 to provide additional comment or information.

11    On 10 September 2013, Ms Sandhu faxed a letter to the Tribunal which among other things said:

I have applied again for skills assessment to TRA and expect that my qualifications will be assessed as suitable. Proof of application to assessing authority is attached. Kindly give me four weeks’ time to provide the skills assessment.

12    Ms Sandhu included a letter from the TRA dated 4 September 2013 acknowledging that it had received documentary evidence in support of her second skills assessment application. The TRA letter also said that most applications would be assessed within 30 working days of receipt of the documentary evidence.

13    The Tribunal received Ms Sandhu’s application to defer making a decision pending the outcome of her second skills assessment. However, the Tribunal did not await the outcome of Ms Sandhu’s second skills assessment application before making its decision. On 13 September 2013, the Tribunal published its decision which was to affirm the delegate’s decision not to grant Ms Sandhu’s visa application. At [18] of the Tribunal’s decision record, the Tribunal relevantly observed:

The applicant informed the Tribunal on 10 September 2013 that she made another application to the TRA and she requested the Tribunal to grant her more time to obtain the skills assessment. The Tribunal has considered the applicant’s request but decided not to grant her more time because, for the reasons stated below, the Tribunal has formed the view that the applicant does not meet PIC 4020 and that would not be affected by the provision of a new skills assessment (see Mudiyanselage v MIAC [2013] FCA 266).

14    The Tribunal then went on to reject Ms Sandhu’s claim made at the hearing that even if the “Last Train to Bombay” restaurant had issued some non-genuine experience certificates in respect of some persons, her work experience at that restaurant had been genuine. The Tribunal said that it considered it significant that Ms Sandhu had not been able to present any documentary evidence of her employment. The Tribunal, therefore, found that there was evidence that Ms Sandhu had given, or caused to be given, to the Minister or an officer a bogus document in relation to the visa application; and, therefore, Ms Sandhu had not met PIC 4020(1).

15    The Tribunal then considered whether, pursuant to PIC 4020(4), the requirements of PIC 4020(1) should be waived. The Tribunal found that on the evidence before it, it was not satisfied that there were compelling circumstances that affected the interests of Australia or that there were compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justified the grant of the visa.

the federal circuit court of australia

16    The respondents applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. In her grounds of review, Ms Sandhu referred to the request for further time to obtain a second skills assessment from the TRA and the Tribunal’s refusal to grant that additional time. Ms Sandhu went on to complain that:

By refusing this adjournment, the Tribunal failed to give the applicant a meaningful opportunity to present evidence and arguments and in particular as to why the Minister should waive the requirements of any or all of paragraphs (1)(a) or (b) of PIC 4020 for reasons that include “compelling circumstances that affect the interests of Australia” as provided for in PIC 4020. The Tribunal misconstrued and misapplied the law in regard to PIC 4020. (Original emphasis.)

17    There were three grounds of review but the relevant ground of review for the purposes of this appeal is the one to which I have referred in the preceding paragraph.

18    The primary judge set aside the Tribunal’s decision on the grounds that the Tribunal had acted unreasonably in refusing to await the outcome of the second skills assessment before making its decision.

19    The primary judge observed:

58.    In the circumstances of this case, the MRT had evidence before it that the Applicant’s application for a second skills assessment had been received by the TRA and was likely to be completed within 30 days of receiving the Applicant’s evidence, which the letter made clear had been received. The MRT also had the statement by the Applicant’s migration agent that the qualifications of the Applicant were expected to be assessed as suitable by the TRA and that the skills assessment would be successful. That evidence was necessary for the Applicant to be able to make submissions that PIC 4020(1) should be waived pursuant to PIC 4020(4) because there may be compelling circumstances that affect the interests of Australia by the Applicant’s ability to be employed as cook.

59.    To my mind, the facts in this case are at least as strong as those in Li.

20    The primary judge went on to find:

62.    The applicant’s request to the TRA for a further assessment was made promptly following the MRT hearing. The evidence before the MRT was that there would be an outcome of the second TRA within a matter of 3 or 4 weeks. According to the TRA letter dated 4 September 2013, the applicant had provided her evidence in support and most applications were assessed within 30 days of receipt of the evidence in support. Not to allow the applicant that time which may have provided her with evidence to support a submission as to why PIC 4020(1) should be waived was unreasonable to the point of being capricious and arbitrary and satisfies the stringent test of legal unreasonableness.

63.    In the circumstances, I am satisfied that the decision of the MRT does not have an evident intelligible justification, is plainly unjust and is otherwise arbitrary, capricious and abandons common sense. Accordingly, the unreasonableness of the MRT in refusing to grant the applicant further time to provide evidence that was clearly underway and would be available in a relatively short period of time can be characterised as legal unreasonableness.

the appeal

21    The Minister appeals to this Court on the ground that the primary judge erred in finding that the Tribunal’s decision to refuse an adjournment was unreasonable.

22    I observe, in passing, that at the hearing of the appeal, Ms Sandhu adduced evidence in the form of a letter from TRA dated 20 September 2013, stating that her second skills assessment application had been successful.

23    The Minister contended that the primary judge erred in holding that the Tribunal’s decision was unreasonable for two related reasons. I will deal with each of these reasons.

Ms Sandhu’s stated reasons for seeking an adjournment

24    First, the Minister contended that the primary judge had erred in assessing the reasonableness of the Tribunal’s conduct in refusing the adjournment by reference to a case which Ms Sandhu had not made to the Tribunal when she applied on 10 September 2013 for the adjournment.

25    As is evident from the observations of the primary judge that I have set out at [19] and [20] above, the primary judge found that the Tribunal had acted unreasonably in refusing to grant Ms Sandhu an adjournment because this refusal denied Ms Sandhu the opportunity to use a successful second skills assessment as evidence in support of a submission that PIC 4020(1) should be waived because there may be compelling circumstances that affected the interests of Australia, namely, Ms Sandhu’s ability to be employed as a cook.

26    It is the case that the Tribunal made no reference in its decision record to the prospect of the second skills assessment being used by Ms Sandhu as evidence in support of a submission that PIC 4020(1) should be waived on the basis that there may be compelling circumstances that affected the interests of Australia by reason of Ms Sandhu’s ability to be employed as a cook.

27    However, Ms Sandhu’s letter of 10 September 2013 does not state that she wanted the adjournment for the purpose of obtaining the second skills assessment to use in support of a proposed argument that PIC 4020(1) should be waived on the grounds that the second skills assessment would comprise compelling circumstances which affected the interests of Australia by reason of Ms Sandhu’s ability to be employed as a cook. Rather, the tenor of Ms Sandhu’s letter strongly suggests that Ms Sandhu intends to use the second skills assessment to satisfy the primary criterion in cl 485.221(1).

28    In my view, the reasons which a visa applicant gives to the Tribunal for seeking an adjournment, and the manner in which the Tribunal responds to those reasons, are material and important considerations in assessing whether, in denying a visa applicant an adjournment, a Tribunal has acted unreasonably. This is apparent from the High Court’s observations in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li), and also the observations made in the Courts below in that case.

29    Li was decided by reference to a different statutory regime to that which applied in Ms Sandhu’s case.

30    Under the statutory regime which then applied, a visa applicant for a skilled visa was required to satisfy, at the time of decision, the condition set out in cl 880.230(1) of Sch 2 of the Migration Regulations, namely, that “a relevant assessing authority had assessed the skills of the applicant as suitable for his or her nominated skilled occupation, and no evidence has become available that the information given or used as part of the assessment of the applicant’s skills is false or misleading in a material particular”.

31    Ms Li’s application for a skilled visa was initially supported by a skills assessment made by the TRA on 8 January 2007 but that skills assessment was found to be based on false or misleading information submitted by the visa applicant’s former migration agent; and on 13 January 2009, the Minister’s delegate refused the application for the visa.

32    Ms Li then applied to the Tribunal for a review of the delegate’s decision on 30 January 2009. However, about six weeks before the Tribunal hearing, Ms Li’s new migration agent submitted a fresh application to the TRA for a second skills assessment on 4 November 2009.

33    I interpose to say that the importance of Ms Li obtaining a second skills assessment is that it appeared to be accepted that, under the statutory regime then current, that if a visa applicant obtained from the TRA a second skills assessment which was not tainted by misleading or false information, then that assessment would satisfy the condition set out in cl 880.230(1) of Sch 2 of the Migration Regulations; notwithstanding that the first skills assessment the visa applicant had used in support of the visa application, was tainted by having been obtained by the use of false or misleading information.

34    Ms Li attended the Tribunal hearing on 18 December 2009 and was questioned about untruthful answers given to departmental officers in connection with her first skills assessment. Ms Li advised the Tribunal that she had applied to the TRA for a second skills assessment.

35    On 21 December 2009, the Tribunal wrote to Ms Li inviting comment on allegedly untruthful answers given to the departmental officers in connection with the initial application. Ms Li was given until 18 January 2010 to respond.

36    On 18 January 2010, Ms Li’s migration agent replied to the Tribunal’s letter of 21 December 2009 and advised that the application for the second skills assessment had been unsuccessful. However, the migration agent went on to point out that there were two fundamental errors in the TRA’s assessment and that Ms Li had applied to the TRA for a review of its adverse decision. The migration agent also explained that the TRA had failed to follow its own procedures in refusing the second skills assessment. The migration agent requested the Tribunal to defer making any final decision until the outcome of Ms Li’s second skills assessment application was finalised. The migration agent said that he would keep the Tribunal informed of the progress of the application.

37    On 25 January 2010, without awaiting the advice of the outcome of the review of Ms Li’s second skills assessment application, the Tribunal affirmed the delegate’s decision.

38    Ms Li then applied for judicial review of the Tribunal’s decision to the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia). The Federal Magistrates Court found that the Tribunal’s refusal to adjourn the review to be “unreasonable in the Wednesbury Corporation sense” (Li v Minister for Immigration and Anor [2011] FMCA 625 at [56]). The Full Court of the Federal Court and the High Court respectively dismissed the Minister’s appeals.

39    There are two observations about Li which are relevant in this context.

40    First, each of the three Courts referred to above, proceeded on the basis that the outcome of Ms Li’s second skills assessment was, as the Federal Magistrate put it, “the only item outstanding in what otherwise ought to have been a successful application”. In other words, this was a case where Ms Li was relying on the second skills assessment to satisfy a primary requirement for the grant of a skilled visa. There was no suggestion that the second skills assessment was being obtained for a secondary purpose.

41    Secondly, each of the Courts in assessing the reasonableness of the Tribunal’s conduct, placed emphasis on the Tribunal’s response to the stated reasons advanced in Ms Li’s application for the adjournment.

42    In the Federal Magistrates Court, Burnett FM observed at [49]:

On a plain reading of the applicant’s agent’s letter there appeared good reason to be cautious of the assessing authority’s original decision. The applicant’s detailed explanation of the reasons why the decision was wrong ought to have put the Tribunal on notice that this was not merely a stalling tactic on the part of the applicant. That matter was the only item outstanding in what otherwise ought to have been a successful application…

43    At [37], Greenwood and Logan JJ in the Full Court of this Court (Minister for Immigration and Citizenship v Li (2012) 202 FCR 387) observed:

Here, there was, as the correspondence to the MRT by Ms Li’s migration agent makes plain, every reason to conclude that the second skills assessment by Trades Recognition Australia (TRA), which was the “relevant assessing authority”, was infected by error, which error Ms Li was actively seeking to have that body address. Again having regard to the migration agent’s letter, there was every reason to conclude that the only reason why the second skills assessment was adverse was a failure on the part of the TRA to follow its own procedures.

44    The approach of the High Court is reflected in the observations of French CJ at [31]:

The decision of the MRT to proceed to its determination was not, on the face of it, informed by any consideration other than the asserted sufficiency of the opportunities provided to the first respondent to put her case. The MRT did not in terms or by implication accept or reject the substance of the reasons for a deferment put to it by the first respondent’s migration agent. It did not suggest that the first respondent’s request for a deferment was due to any fault on her part or on the part of her migration agent. It did not suggest that its decision was based on any balancing of the legislative objectives set out in s 353. Its decision was fatal to the first respondent’s application. There was in the circumstances, including the already long history of the matter, an arbitrariness about the decision, which rendered it unreasonable in the limiting sense explained above.

45    In my view, in assessing the reasonableness of the Tribunal’s decision to refuse the adjournment, it was incumbent on the primary judge to have regard to the reasons given by Ms Sandhu for wanting an adjournment. Ms Sandhu’s letter made no reference to wanting to use a second skills assessment to support a potential argument that the requirements of PIC 4020(1) should be waived under PIC 4020(4). In my view, in the absence of Ms Sandhu specifying the “waiver argument” as the purpose for the adjournment, the Tribunal was entitled to proceed on the basis that Ms Sandhu wanted to use any second skills assessment obtained in order to satisfy the primary requirement in cl 485.221(1).

46    It follows, that in my view, the decision made by the Tribunal did not, in those circumstances, carry with it the hallmarks of legal unreasonableness, such as being devoid of intelligible justification or plainly unjust or being arbitrary, capricious and devoid of common sense, which the primary judge attributed to the decision. In other words, to apply the language used in Wednesbury Corporation, the decision was not a decision which no reasonable Tribunal could have reached.

47    Accordingly, in my respectful view, the primary judge erred in assessing the reasonableness of the Tribunal’s conduct, by reference to reasons for seeking the adjournment which were not advanced by Ms Sandhu in her application on 10 September 2013.

The second skills assessment would have been of no utility

48    The second of the Minister’s contentions was that it could not be unreasonable for the Tribunal to refuse an adjournment when the adjournment could not have any utility.

49    As mentioned, the Tribunal treated Ms Sandhu’s request for the adjournment as being for the purpose of substituting the second skills assessment for the first skills assessment as a means of satisfying cl 485.221(1). Further, as set out at [14] above, the Tribunal declined the adjournment on the basis that there would be no utility in waiting for the outcome of the second skills assessment, because even if Ms Sandhu obtained that assessment, her visa application would fail because she had not satisfied PIC 4020(1).

50    The primary judge referred to Li as supporting the finding that the Tribunal had acted unreasonably in refusing Ms Sandhu an adjournment. However, as already mentioned, there is an important distinction between Li and this case, namely, that the relevant statutory scheme had changed between the time when Ms Li’s visa application was decided and the time when Ms Sandhu’s visa application was decided.

51    The statutory scheme which applied at the time of deciding Ms Sandhu’s visa application, was that which came into effect on 2 April 2011 pursuant to the Migration Amendment Regulations 2011 (No 1) (Cth). Those regulations introduced the requirement that an applicant for a skilled graduate subclass 485 visa satisfy the primary criterion set out in cl 485.221(1) as well as PIC 4020.

52    The reason for the amendment and the impact of the changes introduced by the amendment is discussed by Tracey J in Mudiyanselage v Minister for Immigration and Citizenship (2013) 211 FCR 27 (Mudiyanselage). At [35], Tracey J observed:

One of the stated purposes of the amendment was, then, to frustrate applicants who submit bogus documents when making a visa application in the hope that they will not be detected but that, if their deceit is exposed, they are able to eschew reliance on the document without prejudice to the success of their application.

53    In that case, Tracey J dismissed an appeal from a decision of the Federal Magistrates Court which had found that a visa application would not satisfy PIC 4020 in circumstances where the visa applicant had used a bogus document to obtain the first skills assessment relied on in support of the visa application, notwithstanding that the visa applicant subsequently obtained a second skills assessment without relying upon a bogus document.

54    In my view, in light of the decision in Mudiyanselage, it was open to the Tribunal to have concluded, as it did, that the obtaining of a second skills assessment by Ms Sandhu would in the circumstances not affect the Tribunal’s decision, founded as it was, on the failure of Ms Sandhu to satisfy PIC 4020 because of the use of a bogus document in relation to her visa application. That decision is not a decision which is to be characterised as a decision to which no reasonable Tribunal could have come, nor was it attended by the hallmarks of legal unreasonableness described by the primary judge.

55    For the sake of completeness, I observe that the Minister also argued that, in any event, even if Ms Sandhu had been given an opportunity to rely upon the second skills assessment the result would have been no different because a second skills assessment would not have been capable of founding a conclusion of compelling circumstances. I accept that contention. If the satisfaction by a visa applicant of one of the primary criterion was to be capable of constituting compelling circumstances giving rise to a waiver of PIC 4020(1), there would be little or no utility in requiring compliance with PIC 4020(1) in the first place.

56    Accordingly, the appeal is allowed. The respondents are to pay the appellant’s costs.

Associate:

Dated:    22 February 2016