FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Home Affairs [2019] FCA 507
ORDERS
First Appellant GAGANDEEP SINGH Second Appellant | ||
AND: | First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The appeal be dismissed with costs as agreed or assessed.
2. The name of the first respondent be changed to “Minister for Home Affairs”.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
STEWARD J:
1 The appellants are a wife and husband from India. On 7 March 2015, the wife applied for a student visa (subclass 573), with the husband applying as a member of the wife’s family. On 28 October 2015, a delegate of the first respondent refused to issue the student visa because a bogus document or false or misleading information had been given to the Department of Immigration and Border Protection. The appellants sought review of that decision in the Administrative Appeals Tribunal (the “Tribunal”). After two hearings, the Tribunal affirmed the delegate’s decision on 6 November 2016. The appellants sought judicial review of that decision in the Federal Circuit Court. That application for review was dismissed on 1 November 2018. The appellants now appeal that decision to this Court.
Legislative Provisions
2 Relevantly applicable to the first appellant’s visa application in 2015, she needed to satisfy cl 573.224 of Sch 2 to the Migration Regulations 1994 (Cth) (the “Regulations”) which was in the following form:
The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4012A, 4013, 4014 and 4020; and
(b) if the applicant seeks to stay in Australia for 12 months or more, satisfies public interest criterion 4010;
(ba) if the applicant had turned 18 at the time of application, satisfies public interest criterion 4019; and
(c) if the applicant is applying outside Australia and the applicant has previously been in Australia, satisfies special return criteria 5001, 5002 and 5010.
3 Public interest criterion (“PIC”) 4020, as set out in Sch 4 to the Regulations, relevantly provided as follows:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, 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 to grant the visa;
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).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A) The applicant satisfies the Minister as to the applicant's identity.
(2B) The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under18.
(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.
4 Section 5(1) of the Migration Act 1958 (Cth) (the “Act”) provides a definition of “bogus document”, which is in the following form:
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.
I note that a document will be bogus if it is found to be a counterfeit.
5 Finally, s 359AA of the Act is also relevant to this proceeding. It provides:
(1) If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
(2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).
The Tribunal
6 One of the requirements that the first appellant needed to satisfy for the grant of the visa here related to her financial capacity. For that purpose, the delegate informed the appellants that an account (called a fixed deposit receipt or “FDR”) relied upon by the first appellant as demonstrating that financial capacity had closed the day after it was opened and there was no overdraft. The delegate formed the view that the appellants had provided fraudulent information, and no visa was issued.
7 Following this, but before the hearing at the Tribunal, the appellants, via their migration agent, supplied the Tribunal with two statements, said to be from the Punjab National Bank. The first, dated 14 August 2015, said that the bank had sanctioned an overdraft in favour of the first appellant. The second, dated 27 August 2015, stated that the account had been cancelled due to a medical emergency, but that “this FDR was genuine”. The Tribunal made inquiries in India about these documents. At [25]-[26] of its reasons for decision, it considered the documents in the following way:
In accordance with section 359AA of the Migration Act, the Tribunal drew to the applicant’s attention that the documents from the Punjab National Bank, which she had submitted to the Tribunal, including letters from the Bank Manager dated 14 August and 27 August 2015 and the confirmation of deposit of 26 Lakhs in Account no 353100NP00002501 on 14 August 2015 had been submitted to the New Delhi office for verification. The advice from the office, after discussions with the bank, was that the documents submitted were not genuine as the FDR account no 353100NP00002501 did not exist: it had been opened on 7 April [2015], but was closed as no funds were received and there was a zero balance.
The Tribunal also noted inconsistencies in the logo headers and website addresses on the two bank letters submitted. In particular, while the letter from the Punjab National Bank dated 14 August 2015 carried the bank’s correct website address (www.pnbindia.in) and complete logo header, the letter dated 27 August 2015, which the applicant’s agent resubmitted on 29 August 2016, had an incomplete logo header and identified a different website address (www.punindia.in), which was found not to exist. The Tribunal provided the applicant with copies of the documents and invited her to comment or [respond] to the information, noting that its relevance was that it raised doubts about her truthfulness and the general credibility of her evidence.
8 The appellants contended before the Tribunal that they thought that the documents were genuine. The first appellant said her mother had received them “in good faith” from the bank. The Tribunal nonetheless found that each document was false, and addressed that contention at [36]-[37] of its reasons for decision as follows:
As discussed with the applicant at her second hearing, the Tribunal is concerned that, when the bank documents she submitted to the Tribunal – to support her explanation of the problem that had arisen over the documents she initially provided to demonstrate her financial capacity – were sent to the post for verification, they were again found to be not genuine. The Tribunal has had regard to the applicant’s explanation that her mother received the documents from the Bank ‘in good faith’ and her husband’s suggestion that the problem arose because the bank manager changed. However, the Tribunal attaches greater weight to the advice from the New Delhi office after consultation with the relevant bank that the documents were not genuine.
The Tribunal’s concern about the applicant’s truthfulness and the general credibility of her evidence is compounded by the inconsistencies in the logos and web addresses on the bank documents she submitted. The Tribunal does not find persuasive her suggestion that they may have been the result of spelling and other errors during upgrades. Moreover, the Tribunal notes that, while the applicant claimed that money was redeposited into the same FDR account no 353100NP00002501, the documents attached to her uncle’s statutory declaration (paragraph 22) and resubmitted to the Tribunal on 3 November 2016 (paragraph 30) related to different account numbers.
9 It followed that the Tribunal decided that the appellants had given, or caused to be given, to it a “bogus document” as defined in s 5(1) of the Act. Specifically, the Tribunal reasonably suspected that each document was a counterfeit or had been altered by a person who did not have the authority to do so. By reason of that finding, and subject to one issue, the appellants did not satisfy PIC 4020(1) and thus did not satisfy cl 573.224 of the Regulations.
10 The issue that remained to be considered was the exception in PIC 4020(4). The Tribunal decided that there were no “compelling circumstances that affected the interests of Australia” and no “compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen” to justify waiving the requirements of PIC 4020(1). The first appellant submitted that the exception was satisfied because she had: (i) been an “exemplary Australian international student” since 2009; (ii) been a hard-working individual; and (iii) made contributions to Australia. The Tribunal rejected that submission.
11 For those reasons, the Tribunal affirmed the delegate’s decision.
Federal Circuit Court
12 The grounds of review before the Federal Circuit Court were as follows:
1. The Second Respondent's decision was affected by jurisdictional error in that the applicant was denied procedural fairness under s359 of the Migration Act 1958 and failed to take into account relevant considerations.
Particulars
a. The Applicant applied for a review on or about 17 November 2015. As there was no consistency in processing time of the review applications, there was no way that the Applicant knew of the likely time frame to have a hearing allocated by the Second Respondent.
b. The Applicant appeared for the hearing with evidence of her compelling and compassionate circumstances. The Tribunal was bound by cl.4020(1), (2) and (4) of Public Interest Criterion 4020 as required by cl 573.224 of Schedule 2 to the Migration Regulations 1994 to consider compelling and compassionate circumstances but the Tribunal failed to consider her circumstances in a reasonable manner and denied procedural fairness.
c. The Applicant made several requests to the Second Respondent to allow additional time to obtain further information but the Tribunal did not even consider that application or that the information that could be provided.
d. The Tribunal failed to provide procedural fairness to the Applicant in circumstances where it failed to take into account the Applicant's compelling and compassionate circumstances.
2. The Second Respondent made jurisdictional error in that it denied the applicant procedural fairness or failed to take into account relevant considerations when considering the compelling and compassionate circumstances applicable to waive PIC4020.
13 The learned primary judge rejected each ground. In relation to the claim that the Tribunal had breached the requirements of s 359AA, the learned primary judge adjourned the hearing in order to obtain a transcript of the proceedings in the Tribunal. Her Honour examined that transcript and was satisfied that there had been compliance with s 359AA of the Act. The adverse findings made about the alleged Punjab National Bank documents had been put to the appellants and they were given the required opportunity to respond, which they took up.
14 The appellants also submitted that they had been denied procedural fairness, because they had asked for a further two weeks to submit materials, but had only been given one week to do so. This ground was rejected on the basis that the Tribunal had already given the appellants several extensions of time.
15 Finally, the appellant submitted that there had been a failure to take into account relevant considerations when considering the issue of compelling and compassionate circumstances, for the purposes of the exception in PIC 4020. None, however, were identified. This ground was also rejected. For those reasons, the application for review was dismissed.
The Appeal
16 The appellants were not represented. Only the second appellant appeared before me. I gave him leave to appear on behalf of his wife, the first appellant. They each relied upon five grounds of appeal, which were as follows:
1. While Her Honour Judge Emmett showed explanation I continue to believe that the documents obtained by the Bank was essential to the refusal of my application by the Tribunal and an extension of time was essential to establish that I did not cause the bank to issue the document and I was not responsible for any mistakes caused by the Bank which affected my credibility.
2. The Tribunal failed to give two weeks extension in order to clarify to the Tribunal explanation regarding material provided. Even though the Tribunal identified the current information and explained its relevance I was expecting sufficient time because at the time of the hearing I was not relying on proper explanation rather I was denying that the document to the best of my knowledge was genuine and if there was a mistake it was done by the Bank. Therefore I did not have sufficient time to respond to adverse information because I was waiting for the bank to provide explanation.
3. I continue to believe that I did not cause any misleading information and circumstances were beyond my control and the Tribunal failed to take into account relevant consideration whether there were compelling circumstances to waive public interest criteria, if it applies, based on unique and compelling reasons.
4. The Tribunal fell into jurisdictional error by being not satisfied that my circumstances were compelling and compassionate based on the supporting documents provided.
5. The Tribunal overlooked the fact that whatever to be applicable to public interest criteria was violent as I did not personally cause it rather it was caused by other and I am a victim in a way that my death if I am murdered is caused by other not in as much as I want to die. In other words, the document is caused by the Bank and in good faith I continue to believe that I did not provide false document.
(Errors in the original.)
17 By the first ground of appeal, the appellants state that they continue to believe that the Punjab National Bank documents were “essential” and that an extension of time to demonstrate that the appellants were not responsible for “any mistakes caused by” the bank was a critical matter. Expressed in this way, I find that the first ground has not identified jurisdictional error. Rather, it identifies disagreement with the Tribunal’s exercise of power to give only a period of one week within which to adduce additional material. Section 33 of the Administrative Appeals Tribunal Act 1975 (Cth) confers upon the Tribunal a broad power or discretion to determine the procedure of the Tribunal. That includes the discretion to extend time for the receipt of additional material. The learned primary judge in that respect observed at [34]-[35]:
The Applicant referred the Court to the transcript where her advisor had requested at the Second Hearing for “a little further time” for the Applicant to check with the bank directly about the mistakes the Applicant asserted were made by the bank. The advisor asked for two weeks. The Tribunal member responded that the Applicant was aware that this had been an issue for a very long time and the Applicant had had ample opportunity to check with the bank and that the Tribunal had otherwise given her “several extensions”. Nevertheless, the Tribunal member offered 1 more week which was accepted by the Applicant’s advisor.
In the circumstances, a fair reading of the Tribunal's decision record makes clear that the Tribunal considered the Applicant's request for a further 2 weeks, and granted 1 week in the context of other extensions of time provided to the Applicant and where the Applicant had been invited to 2 hearings and had provided material to the Tribunal in light of concerns expressed to the Applicant in writing and orally.
18 In my view, the Tribunal did not err in exercising its power to grant a one-week extension. In the particular circumstances of the case before it, that was a reasonable exercise of the power conferred by s 33. Moreover, it would appear that, in any event, the appellants’ representative expressly accepted the one-week time limitation.
19 The second ground of appeal appears to raise the very same issue. Once again, it does not identify any discernible error of law.
20 The third ground alleges that the Tribunal failed to take into account a relevant consideration in its determination, for the purposes of PIC 4020(4), as to whether there were compelling circumstances. For the purposes of this ground, what should have been taken into account was not identified. It follows that I reject it.
21 The fourth ground asserted that the Tribunal “fell into jurisdictional error” in its consideration of the exception in PIC 4020. However, the error said to have been made was not identified, save perhaps for the contention that the Tribunal should have been satisfied that the first appellant’s “circumstances were compelling and compassionate”. However, the Tribunal’s failure to be so satisfied is not jurisdictional error. Once again, this ground is rejected.
22 The fifth ground contended, as best as I could tell, that for the purposes of PIC 4020, the Tribunal failed to consider that the Punjab National Bank was responsible for the two false documents, and that each had been provided in good faith. Expressed in this way, the contention rests upon an alleged fact, which is not reflected in the findings of the Tribunal. The Tribunal made no express finding about the author of each document. As such, the factual contention that the bank was the author of the false documents is not made out, and it is not otherwise open to me to make that finding of fact now contended for. The fifth ground of appeal is therefore rejected.
23 Before me, the second appellant emphasised that he and his wife had come to Australia in good faith, to be educated. They have been here for about 15 years, having completed several courses. A Master’s degree remained incomplete when their visas expired. They have spent a considerable amount of money in Australia. They accept that each document was false. This has been confirmed, it was submitted, by Indian Police. They are suing the Punjab National Bank about this, but that suit remains unresolved. They protest strongly that they did not author either document. The falsity of each document was not their fault.
24 As to the last contention, two things should be said. First, as the learned primary judge observed, once it had been established that the documents were counterfeit, there was a breach of PIC 4020, and thus non-compliance with cl 573.224. That conclusion does not require any finding that the visa applicants were either the authors of the documents or responsible for their falsity: Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169.
25 Secondly, neither the Tribunal nor the learned primary judge below made any finding that the appellants were the authors of, or responsible in any way for, the two false documents. No finding was made that the documents were given to the Tribunal by the appellants in bad faith. The appellants claim that they were not responsible for either document. Assuming that to be so, however, that is no answer to the finding that PIC 4020 was breached, because each document was found to be a counterfeit or had been altered by a person who did not have the authority to do so.
26 I finally note that the second appellant also made a request for more time within which to seek legal representation. I declined to grant that request. The only purpose an extension of time would serve would be to await perhaps the outcome of the proceeding said to be on foot in India. But as it is admitted that the two documents were false, the proceeding in India could not bear upon the question as to whether the Federal Circuit Court erred in law in not finding that the Tribunal’s decision was infected with jurisdictional error, because it had decided that there had been non-compliance with PIC 4020.
27 For these reasons, the appeal should be dismissed with costs as assessed or agreed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward. |
Associate: