FEDERAL COURT OF AUSTRALIA

Kishore v Minister for Immigration and Border Protection [2017] FCA 1254

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent fixed in the sum of $6,439.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    This is an appeal from a decision of the Federal Circuit Court dismissing Kamal Kishore’s, the appellant’s, application for constitutional writ relief against the decision of the Administrative Appeals Tribunal made on 17 November 2015 to affirm the decision of the Minister’s delegate made on 18 September 2013 to refuse to grant Mr Kishore a Student (Temporary) Class TU (Subclass 572) visa under the Migration Act 1958 (Cth): Kishore v Minister for Immigration and Border Protection [2017] FCCA 808.

Background

2    The appellant is a citizen of India who arrived in Australia on 30 July 2009. He lodged his application for a student visa on 1 May 2013. On 2 May 2013, the Minister’s Department sent an email to Mr Kishore’s nominated migration agent requesting him to provide documentation to satisfy the financial criteria for the grant of the visa and, in particular, to provide evidence of having access to funds, from an acceptable source, equivalent to at least $54,720. On 17 May 2013, Mr Kishore provided some documents that purported to have been issued by Axis Bank Ltd in India showing that his grandfather had the particular financial resources in fixed, and unencumbered, deposits with the Bank.

3    The Department made inquiries through the Australian High Commission in New Delhi to check the authenticity of the documents from Axis Bank. The branch manager of one of the Bank’s branches responded that the documents seemed fake, as the branch did not use the font in which they were prepared and they were inaccurate both as to the name of the branch with which one of the two deposits recorded on them had been maintained, and the statement that there were no loans secured against those deposits.

4    On 24 June 2013, the Department asked the appellant to comment on the Bank’s response and drew his and his migration agent’s attention to public interest criterion 4020 (PIC 4020). That criterion was a requirement for the grant of the visa in cl 572.224(a) of Schedule 2 of the Migration Regulations 1994 (Cth). PIC 4020(1) relevantly provided that a necessary criterion for the grant of the visa was that there was no evidence before the Minister that the visa applicant had given, or caused to be given, to the Minister, or any officer, a bogus document or information that was false or misleading in a material particular in relation to the application for the visa. PIC 4020(5) provided that, for the purpose of PIC 4020, information that was false or misleading in a material particular meant information that was both false or misleading at the time it was given and relevant to any of the criteria that the Minister might consider when making a decision on the application, whether or not the decision was made because of that information.

5    PIC 4020(4) provided that the Minister could waive the requirements of PIC 4020(1)(a) only if satisfied that either compelling circumstances that affected the interests of Australia, or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, justified the granting of a visa. It was clear that Mr Kishore could not satisfy the second of those exceptions, since he was not himself, and did not identify anyone who relevantly was, an Australian citizen, permanent resident or eligible New Zealand citizen.

6    Next, s 97 of the Migration Act defined “bogus document”, in relation to a person, as meaning a document that the Minister reasonably suspected was a document that purported to have been, but was not, issued in respect of the person. Moreover, s 103 provided that:

A non-citizen must not give, present or provide to an officer … a bogus document or cause such a document to be so given, presented or provided.

7    On 16 July 2013, Mr Kishore’s migration agent provided the Department with further financial material from Mr Kishore’s father that, in fact, satisfied the financial requirements for the grant of a student visa and provided an explanation for the bogus Axis Bank documents. The appellant’s explanation was that his grandfather had used a broker in India who had organised the loan documents, that the broker had advised that there was a technical problem with Axis Bank and the Bank’s systems might not have been updated. That was all that Mr Kishore ever provided by way of explanation of the bogus Axis Bank documents.

8    The delegate considered all the information before him and concluded that Mr Kishore:

    had provided bogus documents in relation to his application, being the material from Axis Bank;

    thus, could not satisfy PIC 4020(1)(a); and

    had provided no compelling or compassionate circumstances to justify waiving the requirements of that criterion in accordance with PIC 4020(4).

9    Accordingly, the delegate refused to grant the visa.

The proceeding in the Tribunal

10    Mr Kishore applied to the Tribunal for a review of the delegate’s decision but, after having a hearing in March 2015, he encountered the unfortunate circumstance that the first Tribunal member was not able to complete the review. A second member reconstituted the Tribunal and heard Mr Kishore and his migration agent on 17 November 2015. The Tribunal made an oral decision on that day and produced a written record of its decision on the following day.

11    The Tribunal recorded substantively the history of the matter before the delegate. It noted that, at the March 2015 hearing, the previous member had provided Mr Kishore, under s 359AA of the Act, with the results of the integrity checking of the bogus Axis Bank documents and had adjourned that hearing to enable Mr Kishore to consider his response. On resumption of that hearing on the same day he told the previous member that all the documents had been provided by the broker who had told him that they were genuine.

12    The Tribunal recorded that on 17 November 2015 Mr Kishore’s migration agent repeated the contention by the broker that there was a technical problem with Axis Bank and that Mr Kishore believed that the documents were genuine. The agent invited the Tribunal to make further inquiries about the bogus documents in light of his submissions.

13    The Tribunal stated that it did not consider that further inquiries were warranted. It said that, as far as it was concerned, the issue was not whether the subject matter in the documents was accurate due to a technical problem or otherwise but that, having inspected the documents, Axis Bank had advised that it had not issued them and that they were fake. The Tribunal concluded that the circumstances did not warrant any further inquiry or evidence. It found that Mr Kishore had provided no further evidence that there was any technical problem at Axis Bank, and that on the evidence as it was Mr Kishore had provided documents that were not genuine. It found that the bogus documents therefore did not satisfy PIC 4020. It noted that, at both the hearings on 17 November 2015 and before the previous member, Mr Kishore had declared that there were no circumstances that would justify it waiving compliance with PIC 4020(1)(a) within the meaning of PIC 4020(4). The Tribunal decided, in those circumstances, to affirm the decision under review.

The proceeding before the primary judge

14    The appellant sought relief in the Federal Circuit Court on the “grounds” that:

    he was not satisfied with the Tribunal’s decision;

    he was a regular student in Australia and had finished all his certificates; and

    he felt it was unfair that the decision had been made because the documents that he provided had not been looked at properly, and that he had arrived in Australia in 2009, paid all his tuition fees and had now received his certificates.

15    He appeared in person before the trial judge. His Honour identified the critical issue as being whether PIC 4020 was engaged. He found that there was nothing that Mr Kishore had raised before him that would indicate a ground of judicial review or circumstances that would enable Mr Kishore to demonstrate a compassionate or compelling circumstance for waiver within the meaning of PIC 4020(4). His Honour said that, at best, Mr Kishore had relied upon the fact that he had completed his studies, paid all his fees and otherwise complied with his visa conditions. But, as his Honour found, those were not matters that enabled PIC 4020(1)(a) to be waived. In those circumstances his Honour dismissed the application with costs.

This appeal

16    The appellant filed a notice of appeal that contained 14 paragraphs, some of which amounted to submissions or assertions. In substance, he contended that:

    the Tribunal had made a jurisdictional error;

    there had been a miscarriage of justice; and

    his Honour had not taken the complete facts of his case into account.

17    The notice of appeal set out the circumstances that I have recited above and recorded the appellant’s perception that he had been done an injustice. It noted that he had attempted to provide evidence of compelling and compassionate circumstances that had evolved in his case. It contended that he had been affected by psychological and mental illness related to the ongoing stress and anxiety of the matter where he had done nothing wrong. This ground of appeal asserted that he had developed depression, had been seeing a doctor in respect of that illness and had been taking medication prescribed for it. The appellant asserted that the Tribunal had not acknowledged in its decision that he had been a diligent and law-abiding student for several years prior to the refusal of his application for review and had never had any other problem with his financial documents. He asked that the Court investigate the claim that there were bogus documents and that it should ascertain that his grandfather’s broker in India had obtained them on his own accord without the appellant’s knowledge. The notice of appeal contended that his Honour erred in failing to find that PIC 4020 should have applied because the maker of the bogus documents was someone other than himself and only had come to Mr Kishore’s knowledge through the information he had received from the Department during the course of his visa application. He asked the Court to acknowledge that he was a genuine student who had completed his studies honestly and received his certificate for doing so.

18    On 21 August 2017, when the appeal was listed originally for hearing, Mr Kishore did not appear. I caused him to be telephoned on the mobile phone number that he had given with his notice of appeal. One of his friends answered the phone saying that both he and Mr Kishore were at the emergency department of Sunshine Hospital because the appellant had suffered an anxiety attack earlier that morning. In the circumstances, I adjourned the appeal until 2.15pm on 22 August 2017.

19    Subsequently, Mr Kishore sent an email to my associate apologising for his inability to be at Court on 21 August 2017 and saying that he was not well enough to be there on 22 August 2017. He said that he had become very weak, had had a panic attack, collapsed and been taken to hospital. He provided a hospital medical certificate made on 21 August 2017 that bore out a diagnosis of anxiety and his attendance at the hospital that day. It noted that, in early 2016, the appellant had been first diagnosed with depression or anxiety and that he had been prescribed medication. The certificate also noted that he was experiencing visa issues, should have been in Court and that, over the preceding three weeks, he had become increasingly worried.

20    On 24 August 2017, Mr Kishore filed an affidavit annexing a certificate of his general practitioner that certified, on 23 August 2017, that he had commenced Mr Kishore on Zoloft and that given his then-condition, the general practitioner did not feel that the appellant was in a state to attend Court at that time. He asked for the appeal to be adjourned on compassionate grounds. In those circumstances, I granted (and the Minister did not oppose) an adjournment of the hearing on 25 August 2017 to 2.15pm today.

21    On 22 September 2017, the appellant’s general practitioner issued a further medical certificate stating that Mr Kishore’s anxiety was still not controlled and that he described himself as sweating and having very poor sleep. His general practitioner had referred Mr Kishore to see a psychiatrist for further management of his condition and that in the circumstances he did not feel that Mr Kishore was in a state to attend Court at present. The general practitioner asked for an adjournment on compassionate grounds saying that Mr Kishore was suffering from worsening anxiety and that the Zoloft medication had had no effect.

22    On 27 September 2017, Mr Kishore sought a further adjournment of today’s hearing, which the Minister opposed. In the circumstances, I did not consider that the medical and other evidence then before me justified a further adjournment and maintained the hearing date.

Mr Kishore’s written submissions for this appeal

23    In his written submissions of 10 pages that he had filed prior to the hearing initially fixed for 21 August 2017, Mr Kishore had repeated, once again, what he had included in the notice of appeal. He argued that the Tribunal had made a jurisdictional error because it had not taken into account the facts that he had been a diligent, law-abiding student for several years prior to the refusal of his visa and had never had any problem meeting his financial commitments. He said that there had been a miscarriage of justice because the trial judge (perhaps, meaning the Tribunal) had failed to take reasonable steps to ascertain the source of the bogus financial documents, being the broker, for whose conduct he, Mr Kishore, was not responsible. He said that the Court (meaning the Tribunal) had not even considered the documents and asked that this Court now investigate that matter to ascertain what his grandfather’s broker in India had done on the broker’s own accord without Mr Kishore’s knowledge.

24    He said that the critical issue was that he had no knowledge that the documents were false and that the Tribunal’s lack of any proper inquiry, or search, to substantiate that he was not aware of the bogusness of the documents amounted to a miscarriage of justice. He said that one’s knowledge of fraud was an important concept and that he had no reason to doubt the genuineness of the material that the broker had forwarded on behalf of his grandfather. Moreover, he said that the documents were of no significant importance, particularly in light of the fact that he had completed all of his courses and met all of the financial obligations associated with them. He then asked that I consider public interest criteria other than PIC 4020 relating to his character and emphasised that at no point did he have knowledge that the documents from Axis Bank were false.

The hearing of the appeal

25    Mr Kishore appeared in person today in a state where he commenced dealing with his appeal in some apparent distress. He told me that he was not able to think clearly and that he wanted an interpreter in order to be able to present his case. One of his friends, who did not speak the same language as Mr Kishore, accompanied him but was not able to interpret.

26    I rejected the application for an interpreter on the basis that, on the material in the appeal papers, it appeared that Mr Kishore had given evidence before the Tribunal on two occasions without requiring an interpreter, did not appear to have had an interpreter before the trial judge and had not applied for an interpreter at any time in the appellate proceeding in this Court until his oral application in court today. Having regard to the history of the adjournments that had already taken place, I considered it was not in the interests of justice to adjourn the case yet again.

27    I accept that it has been difficult for Mr Kishore, because of his anxiety and natural nervousness, to deal as well as he would have wished, with the presentation of his arguments. On several occasions I offered him the opportunity to elaborate upon his detailed written submissions. Initially and for some time, he asserted that he was unable to speak as to his grounds of appeal and repeated his desire for an interpreter. Eventually, I asked counsel for the Minister to explain in clear language, in summary, why the Minister contended, as he did, that the appeal should be dismissed.

28    After counsel had done so, Mr Kishore began to address me in reasonably fluent English and, at one point, became emotionally overcome. I adjourned briefly so that he could compose himself, and after that, he spoke clearly and articulately in English, at some length, about his circumstances and reasons for wanting to have his appeal allowed. He told me that he had come to this country to have a life. He thought that the decision against him had been very unfair because he had not provided any bogus documents himself and that any reason why the documents were not genuine was due to a third person, being the broker. He said that he had been not able to deal with the circumstances in 2013 because his grandfather had passed away. He repeated, subsequently, that he had finished all his studies, gained all his certificates and had obtained work. He told me that he had been depressed for about three years and was now taking medication, but that he had distressing thoughts. He said on numerous occasions today that he could not concentrate. He told me that he had taken time from work and had come today for the hearing, but that he still needed more time to respond to the Minister’s argument.

29    I told him that he needed to respond today because this was the hearing of his appeal. I said that he had put clear written arguments and could tell me orally anything in addition and what he wanted me to do. He said that he had obtained help from his father to complete his course. He said that when he had been asked for his explanation about the bogus documents by the Department, he had spoken to his brother, but, that in the meantime, his grandfather had passed away, and he had missed the opportunity of seeing him for the last time. He also told me that he felt like he had been raised in this country and that he had changed his profession to learn hospitality here. He told me how difficult his life had been here, that his friend had helped him to study and work hard and that he had been here for eight years. He said that he felt depressed and could not sleep because of the worry of what was happening to him and this proceeding.

Consideration

30    The Full Court in Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 authoritatively determined the way in which PIC 4020(1)(a) operates. Buchanan J, with whom Allsop CJ and Rangiah J agreed, held that it is not necessary for the Department to show that a visa applicant was knowingly complicit in the use or production of a false document that he or she lodged or caused to be lodged with the Department. Buchanan J held that it would impose an impossible task on those administering the visa system for them to determine whether a visa applicant was himself or herself complicit in a document being false.

31    Rather, his Honour found, it was necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant could be shown to have had knowledge of that fact: Trivedi 220 FCR at 179 [43]. His Honour concluded 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, and continued (220 FCR at 179-180 [49]):

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. (emphasis added)

32    Accordingly, his Honour concluded, it was not necessary for the Tribunal to find that a visa applicant had knowingly provided false information or to determine whether the visa applicant knew or did not know that the information was false when he or she gave it to the Department (220 FCR at 180 [52]).

33    It follows that I am bound to find that Mr Kishore’s argument that his lack of knowledge that the Axis Bank documents were bogus should have led the Tribunal to find, as it did, that PIC 4020(1)(a) did not, or should not, apply to his application.

34    I also reject Mr Kishore’s argument that the Tribunal should have made inquiries in India about the provenance of the bogus documents. In Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 436 [25]-[26], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that it may be that failure by the Tribunal to make an obvious inquiry about a critical fact, the existence of which was easily ascertained, in some circumstances could supply a sufficient link to the outcome to constitute a failure to review and that such a failure could give rise to a jurisdictional error by a constructive failure to exercise jurisdiction. But, their Honours held, in the circumstances of that case, that it was not necessary for the Tribunal to have done so, first, because there was nothing on the record to indicate that any further inquiry by the Tribunal directed to the authenticity of some certificates (obtained in different circumstances to those here) could have yielded a useful result, and, secondly, that the response by the visa applicant, in that case, to the inquiry about the documents demonstrated that there was nothing that the visa applicant or his representatives there were able to add.

35    In this case, the delegate gave Mr Kishore an opportunity to deal with the allegations as to the documents from Axis Bank being bogus. His response, through his migration agent, appears to me to fall within both reasons identified in SZIAI 259 ALR at 436 [25]-[26] as demonstrating that it was not necessary for the Tribunal to make any inquiry itself and the Tribunal made no jurisdictional error in so finding. Indeed, the High Commission in India, on behalf of the Department, had inquired into the genuineness of the documents with Axis Bank. The Bank had given a clear explanation as to why the documents were not ones that it had issued.

36    The representation that the Bank had issued the documents in those circumstances was false. How the falsity came about was not a matter which the Tribunal needed further to, or could, pursue in a way that fell within the principle identified in SZIAI 259 ALR at 436 [25], namely, that it was an obvious inquiry about a critical fact, the existence of which was easily ascertained. The obvious fact that the documents were false had already been ascertained. How the falsity came about was not a matter about which the Tribunal needed to make any further inquiry. It may be accepted that this question was a concern to Mr Kishore, but he was unable to provide material, when offered the opportunity to do so both before the delegate and the Tribunal, to explain how the bogus documents came to be provided beyond the initial explanation that he had given and which the Tribunal took into account.

37    In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ held that it was not the role of the Court to substitute its own views on the merits of an application for review in place of the Tribunal’s decision. Rather, in cases such as this, the Court must ensure that the Tribunal has acted in the exercise of its jurisdiction to review the delegate’s decision in accordance with the procedures set out in the Act and in a way that does not involve the Tribunal committing any jurisdictional error. Mr Kishore, in effect, invited the trial judge and myself to engage in merits review of the Tribunal’s decision to affirm the delegate’s refusal to grant him the visa for which he applied as long ago as 2013. That is not the function of the Court.

38    I have anxiously reviewed the material in the appeal book, the Tribunal’s reasons and his Honour’s reasons for the purposes of ascertaining whether there are any arguments that might expose a jurisdictional error on which Mr Kishore might be able to rely, having regard to his circumstances and difficulties, but I have not been able to see any error.

39    Accordingly, all the grounds that Mr Kishore put forward, based on his own personal circumstances, are not ones that can be taken into account in determining whether his Honour erred in coming to his decision to reject the application for constitutional writ relief. In my opinion, there is no error in his Honour’s decision.

Conclusion

40    For these reasons, I am of opinion that the appeal must be dismissed with costs in the sum of $6,439, fixed under item 15.1(d) of Schedule 3 of the Federal Court Rules 2011.

Associate:

Dated:    25 October 2017