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[2013] FCA 274
Federal Court of Australia
2013-03-28
Murphy J
Original judgment source is linked above.
THE APPLICATION TO THE TRIBUNAL 34 On 29 September 2010 the appellant filed an application to the Tribunal seeking to overturn the cancellation of his visa. On 8 November 2010 the Tribunal wrote to the appellant and gave him an opportunity to respond to the information that underpinned the delegate's decision to cancel his visa, namely that: (a) he was never employed as a pastry cook or in any other capacity at O'heas Bakery from 24 July 2006 to 15 June 2007, or at any other time; (b) he had knowingly submitted a false work reference to TRA asserting that he had completed over 900 hours of work experience as a pastry cook at O'heas Bakery; and (c) knowing that he had obtained a favourable skills assessment from TRA on the basis of a false work reference, he had submitted this assessment to the Department in support of his visa application. 35 In its letter the Tribunal also indicated another issue for the appellant was whether he would have achieved the required qualifying score of 120 points if he had not received 60 points through the falsely obtained positive Skills Assessment. The Tribunal stated: This information would be the reason or part of the reason for affirming the decision under review because in assessing your claims is for a subclass 885 visa, the delegate assigned you 60 points in the general points test (GPT) for having a skilled occupation (Cook - ASCO Code 4513-11) which, in conjunction with points assigned for other relevant attributes, resulted in your obtaining an overall score in the GPT of 120 points, which equated with the qualifying score at the relevant time. Without the falsely claimed work experience attested to in the purported work reference mentioned above, you would not have received the favourable, but bogus, TRA skills assessment as a pastry cook. Without the bogus TRA skills assessment you would not have been awarded 60 points in the GPT, and would not have achieved the pass or pool marks. Consequently, your application for a subclass 885 visa, and indeed for any other visa within the Class VB, would not have been successful, and you would not have acquired permanent residence. You are invited to give comments on or respond to the above information in writing. 36 The appellant gave no substantive response in relation to the false work reference or its effect in relation to his achieving a qualifying score. In its decision of 3 March 2011 the Tribunal noted at [25] to [26]: [25] The applicant has, in the Tribunal's assessment, studiously avoided any direct comment on the truth or falsity of the central allegation against him, viz, that he was never employed as a pastry cook or in any capacity from 24 July 2006 to 15 June 2007 or at any other time at O'heas, contrary to the claims made in a purported work reference dated 10 June 2007, despite a direct invitation from the Tribunal to do so, and a clear indication that this matter would, subject to any comments he may care to make, be the reason or part of the reason for affirming the decision to cancel his visa. [26] The Tribunal has seen evidence that in the course of an interview with Departmental investigators in November 2009, an individual admitted to receiving cash payments of between $1,500 and $2,400 from numerous visa applicants for fabricating employment references on their behalf, and paying the owner of O'heas between $300 and $500 for his signature on each such document. Hundreds of false work references were found at the residence of this individual, who confirmed that no international students had worked at O'heas. The Tribunal attaches substantial weight to this information, particulars of which were duly provided to the applicant with an invitation under s 359A of the Act to comment on them. Despite the implications being clearly spelt out to the applicant, his agent failed to respond directly, instead busying herself with procedural and legal issues of a largely tangential, technical or irrelevant kind. 37 Instead, the appellant's arguments focussed on the fact that TRA had not been properly specified as a "relevant assessing authority" under the Regulations. The appellant argued that neither the work reference provided to TRA, or the Skills Assessment he provided to the Department, were "bogus documents" within the meaning of s 97(c) of the Act, and there was no breach by the appellant of ss 101 and 103. 38 The Tribunal rejected these contentions, noting at [29]: The Tribunal has read and considered the agent's submissions, which set forth an assortment of claims that go behind and beyond the applicant's non-compliant actions, e.g. that TRA is not a legal entity and therefore cannot be designated as a relevant assessing authority by the Minister. While the Tribunal commends the agent's diligence and creativity, it finds the bulk of her arguments misconceived, and in any event, has neither a need nor warrant to go behind the alleged breach in the way she urges. The bogus character of the TRA skills assessment is in no way altered or diminished by the alleged invalidity to which she refers; it was, in the Tribunal's view, obtained because of a false or misleading statement to the effect that the applicant had worked for 900 hours at O'heas. That is all that is required to bring it within the ambit of s97(c). Moreover, the express terms of s.103 prohibit the presentation of any such bogus document to the Department, and do not provide for any exceptions or qualifications. 39 At [30] the Tribunal said: The Tribunal is also satisfied, contrary to the agent's claims, that the 900 hours of work experience requirement was indeed a standard precondition for accreditation by TRA as a Pastry cook at the relevant time. It is also satisfied on the basis of its own examination of Departmental guidelines that a positive TRA skills assessment was in turn a condition sine qua non of an applicant being granted 60 points in the General Points Test. 40 The Tribunal dismissed the alleged breach of s 101 of the Act, but found that the appellant did not comply with s 103. The Minister's discretion under s 109(1) of the Act to cancel the appellant's visa was therefore enlivened. 41 Then, in deciding whether or not to cancel the appellant's visa, the Tribunal gave consideration to the prescribed circumstances in reg 2.41. Regulations 2.41(a), (b) and (c) required the Tribunal to consider "the correct information" or "the genuine document" and the likely effect of such information or document on the decision to grant a visa to the appellant. 42 In relation to reg 2.41(a) the Tribunal found at [35] that the "correct information" was that the appellant was never employed at O'heas Bakery and did not have 900 hours of relevant work experience. 43 In relation to reg 2.41(c) the Tribunal found at [37]: The Tribunal is satisfied that the positive TRA skills assessment would not have been issued had it been apparent that the applicant had no work experience, and that in the absence of the TRA accreditation, the applicant would not have been awarded 60 points for skill in the GPT. Without those 60 points, he would not have met the pool or pass marks in force at the relevant time, and the visa would not have been issued to him. 44 At [46] the Tribunal noted: … In the present case, it is satisfied to the required degree that the applicant committed an egregious breach of s 103 of the Act, in a premeditated and deliberate deception that was calculated to secure him a permanent visa to which he knew full well he was not entitled. His conduct involved a cynical betrayal of the trust and good faith on which the skills accreditation system, like many such administrative systems, almost inevitably relies in an era of dwindling public resources and risk management. The review applicant's misconduct represents an assault on the integrity of the Australian immigration system, and undermines the rationale for the Commonwealth's skilled migration program. In the final analysis, a scheme designed to bring skilled individuals, including pastry cooks, into Australia has netted the country a supermarket worker, who has never worked as a pastry cook, or in any other skilled capacity, since acquiring permanent residency. 45 The Tribunal affirmed the delegate's decision to cancel the appellant's visa.
THE APPLICATION TO THE FEDERAL MAGISTRATES COURT 46 On 1 April 2011 the appellant made an application to the Federal Magistrates Court seeking judicial review of the Tribunal's decision. Following amendment on 18 June 2012 the application set out grounds of review as follows: 1. The Migration Review Tribunal fell into jurisdictional error in concluding that the Trade Recognition Australia is the relevant assessing authority for the occupation of Pastry Cook 4512-13. Particulars (a) There is no evidence that Trade Recognition Australia or any other person or body has been approved in writing by the Education Minister or the Employment Minister for the purpose of reg 2.26B(1A), to be the relevant assessing authority for the occupation of Pastry Cook. (b) The Tribunal erred in determining that instrument IMMI 07/058 for the purpose of reg 2.26B(1), relevantly specifying Trade Recognition Australia to be the relevant assessing authority for the occupation of Pastry Cook, is valid. (c) Without a validly approved and specified (reg 2.26B(1) and (1A)) relevant assessing authority for the occupation of Pastry Cook, Schedule 2, clauses 885.221, 885.222 were not capable of being met by the Applicant. Thus in the circumstances, Schedule 2, clauses 885.221,885.222 are not applicable to this application. 2. The Migration Review Tribunal ("the Tribunal") did not properly consider whether the applicant provided a "bogus document" in accordance with the statutory provisions of the Migration Act 1958 (Cth) ("the Act"). Particulars (a) The TRA's purported exercise of powers in relation to the applicant was invalid. (b) Any purported exercise of power under reg. 2.26B of the Regulations by the Department of Education, Employment and Workplace Relations ("DEEWR") was invalid. (c) Being void, the TRA assessment could not have been material to the decision to grant the visa and so it was not a "bogus document" within the meaning of ss 97(b) and 103 of the Act and the applicant did not make a false or misleading statement to an officer of the Department. 47 The appellant's arguments again centred on the fact that TRA was not properly specified as a relevant assessing authority under the Regulations, and was therefore not empowered to set a skills standard for pastry cooks or to assess the appellant's skills against the standard. The appellant also argued that, being void, the Skills Assessment made by TRA could not have been material to the decision to grant the visa, and could not be a bogus document under the Act. 48 The learned Federal Magistrate had no difficulty in accepting that the Skills Assessment had no legal effect as a skills assessment because TRA had no power to make a skills assessment. Her Honour concluded that "the purported skills assessment did not have any effect as a skills assessment…" Nevertheless her Honour concluded that the skills assessment made by TRA was a bogus document for the purposes of s 103 of the Act, explaining at [51]: It is immaterial whether or not the skills assessment was an administrative decision, or whether or not the TRA was purportedly delegated to perform a function, or whether the skills assessment was no assessment at all. The TRA skills assessment had a physical reality as a document obtained because of false or misleading information. As such, it was a bogus document. 49 The appellant also submitted that because TRA was never properly specified as a relevant assessing authority the Tribunal could not be satisfied under reg 2.41(c) as to the likely effect on the decision to grant the visa of the correct information or the genuine document. Her Honour summarised this submission at [53] as follows: The applicant argued that the Tribunal could not properly consider that circumstance, because it involved hypotheticals, given that the TRA was not able to impose a requirement for a certain number of hours of work experience. 50 At [54] to [56] of her judgment the learned Federal Magistrate rejected this argument (in a passage I set out below at [68]). Her Honour also said at [58]: I do not accept the applicant's submission… that it would be unreasonable to rely on a document created by the TRA to cancel a visa where the TRA had no power to exercise functions under the Act and no power to impose conditions for a skills assessment. For the reasons given above, the validity of the TRA skills assessment, as a skills assessment, was irrelevant. The TRA skills assessment was a bogus document within the meaning of the Act and the applicant gave it to an officer or authorised system. It is not unreasonable for the Tribunal to rely on such a document to cancel a visa. 51 Her Honour dismissed the application.
The Appeal TO THE FEDERAL COURT 52 On 13 August 2012 the appellant filed a notice of appeal to this Court. The notice of appeal sets out the following ground: The Federal Magistrate erred in finding that the purported Trades Recognition Authority ("TRA") assessment was a bogus document within the meaning of the Migration Act 1958. Particulars (i) The TRA had not been validly specified as the relevant assessing authority for the occupation of pastry cook at the time of the applicant's application. (ii) The TRA's purported exercise of power in relation to the applicant was invalid and beyond power and a nullity. (iii) The TRA's purported skills assessment of the applicant was void and beyond power and a nullity. (iv) Being beyond power, void and a nullity, the TRA's purported skills assessment was not capable of being a "bogus document" within the meaning of the Migration Act 1958. (v) The Tribunal could not consider the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information in circumstances where the TRA lacked power at the relevant time to prescribe what information an applicant was supposed to have provided. Accordingly, the Tribunal could not have regard to the circumstances prescribed in reg2.41(a) of the Migration Regulations 1994 and therefore could not determine that the TRA skills assessment was a "bogus document" [a]s provided. (vi) The purpose of s.103 of the Migration Act 1958 is not to ensure that visas are held only by those people who have met the criterion for them, rather, it is to cancel visas where a "bogus document" is provided. CONSIDERATION 53 Two main questions arise in the appeal: (a) whether the Skills Assessment made by TRA (that the appellant submitted to the Department with his visa application) is a "bogus document" for the purposes of s 103 of the Act; and (b) given TRA's lack of power to set a skills standard or assess the appellant's skills against it - whether the Tribunal was able to give consideration to the likely effect of the "correct information" as required by reg 2.41(c). These questions both fall to be determined on the basis of the Tribunal's factual findings, which are not challenged. The Tribunal found in effect that the appellant had no practical work experience as a pastry cook, that he had knowingly submitted a false work reference to TRA, and that he had submitted the Skills Assessment to the Department even though he know it had been obtained through the false work reference. 54 The appellant submits that, because TRA was not properly specified as an assessing authority under reg 2.26B, the relevant TRA assessment is a nullity and cannot be treated as a "bogus document" for the purpose of s103. He draws upon the provisions of the Act which contain the power under which TRA was to carry out its tasks, and submits that on a proper reading of the Act the lack of power in TRA resulted in there being no skills assessment being made at all. 55 I accept the appellant's submissions that: (a) TRA had not properly set a skills standard applicable to the occupation of "Pastry Cook"; (b) TRA did not properly assess the appellant's skills against a standard; and (c) the Skills Assessment was not effective as a skills assessment for the purpose for which it was made by TRA. However, I do not accept the appellant's argument that this means that the Skills Assessment is not a "bogus document" within the meaning of s 103. 56 In construing the term "bogus document" I must consider both the context and purpose of ss 97 and 103: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 ("Project Blue Sky") per McHugh, Gummow, Kirby and Hayne JJ at [69]. There is nothing in ss 97(c) and 103, or elsewhere in the Act, to indicate that Parliament intended the word "document" to be given anything other than its ordinary and natural meaning. The Shorter Oxford English Dictionary defines "document" as "evidence" or "proof" and "something written, inscribed, engraved, etc, which provides evidence or information or serves as a record". 57 The Regulations indicate that those who wish to obtain visas in one of the visa classes available must provide documents of various types to the Minister. Cases involving similar circumstances to those in the present case illustrate that the Minister has previously sought to apply s 103 in relation to incorrect employment testimonials, education attendance records, and award certificates: see McDade v Minister for Immigration and Multicultural Affairs [2000] FCA 528 at [15], VKAW v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 25 at [9], Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167 at [10]. 58 The use of bogus documents is prohibited by s 103. The evident purpose of the prohibition is the maintenance of an effective migration system whereby classes of visa are given to those who have certain skills or characteristics. The section, considered in the context of other provisions such as ss 100, 101, 102, 104, 105, 107, 108 and 109, promotes honesty, order and reliability within the Australian migration system. Together, the provisions emphasise the importance of honesty and accuracy in an application for a visa. 59 When considered in light of its purpose and context, the correct construction of s 103 is the construction that focuses attention on the substance of any ordinary document as given to "an officer, an authorised system, the Minister, or a tribunal." 60 The definition of "bogus document" in s 97(c) includes a document that "was obtained because of a false or misleading statement". In my view it is plain in the present case that the Skills Assessment was obtained because of the false work reference. The Skills Assessment simply picked up the 900 hours of work experience which the appellant falsely claimed to have. That the Skills Assessment is of no legal effect for its specific purpose is immaterial as to whether or not it falls within this definition. I respectfully agree with the learned Federal Magistrate's observation at [49]: The fact is that the applicant's TRA skills assessment was obtained "because of a false or misleading statement", being the statement that the applicant had 900 hours of work experience with O'Hea's Bakery & Deli. Consequently, the skills assessment was a bogus document within the meaning of s.97(c) of the Act. The applicant sent his TRA skills assessment to an officer or an authorised system. He thus breached s.103 of the Act and triggered the cancellation provisions. 61 I consider that the Tribunal was correct in finding that the Skills Assessment is a bogus document for the purpose of s 103 of the Act. Visa Cancelation Power under s109 62 Having decided that the Skills Assessment is a bogus document for the purpose of s103 of the Act, it next fell to the Tribunal to decide whether or not the requirements of s 109 were otherwise met. Prescribed circumstance reg 2.41(c) requires the decision-maker to consider "the likely effect on a decision to grant a visa…of the correct information or the genuine document." 63 The appellant submits that because TRA lacked a valid delegation TRA lacked the power to assess skills or set the standards against which the appellant's skills were to be assessed. He argues that due to its lack of power, the Tribunal was unable to consider the circumstances it was required to consider under reg 2.41(c) and it was impossible to say what the likely effect of the "correct information" would be on the decision to grant a visa. 64 It is clear that where a statutory scheme creates a precise method through which power is to be conferred on a body or person, failure to follow that method will mean that the body is without authority to make decisions that are supported in law: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. 65 In the present case it is common ground that the Minister did not comply with reg 2.26B(1A) in specifying TRA as a relevant assessing authority. In my view the words of reg 2.26B(1A) are words of necessity, TRA was not properly specified, and it was therefore without power at the time it purported to make the Skills Assessment. As I have already indicated, I accept the appellant's submission that there was no assessment criteria set by TRA that could be used for the purpose of reg 2.41(c). 66 However, it does not follow that the Tribunal was unable to consider reg 2.41(c). The words of the regulation required the Tribunal to give consideration to the likely effect of the correct information on the outcome of a visa application of the type being cancelled. It was incumbent on the Tribunal to give "genuine consideration" to the circumstance: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] per Gleeson CJ and Gummow J. 67 I respectfully agree with the learned Federal Magistrate when her Honour said at [54] to [56]: [54] … the first respondent is correct in saying that the prescribed circumstances in reg. 2.41 are not conditions that must be satisfied before there can be a cancellation. They are circumstances to which the decision maker must have regard, to the extent that they are relevant. [55] In any event, the Tribunal did have regard to the circumstance prescribed in reg. 2.41(c). The Tribunal said at [37]: The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document 37. The Tribunal is satisfied that the positive TRA skills assessment would not have been issued had it been apparent that the applicant had no work experience, and that in the absence of the TRA accreditation, the applicant would not have been awarded 60 points for skill in the GPT. Without those 60 points, he would not have met the pool or pass marks in force at the relevant time, and the visa would not have been issued to him. [56] The Tribunal's consideration of the prescribed circumstance in reg. 2.41(c) seems to be sound, whether or not the TRA had been approved and specified as an assessing body and whether or not the TRA could impose a requirement of 900 hours of work experience. That is, on any view, the applicant would not have been awarded 60 points for skill and without those 60 points, he could not have qualified for the visa. The applicant made no particular submissions about the Tribunal's findings in this regard. 68 I can see no error in the Tribunal's decision that had the "correct information" been provided to the Department, the appellant's application for a Skilled Migration visa was likely to have been unsuccessful. 69 The "correct information" for the purpose of reg 2.41(c) is that there was no properly specified assessing authority that could have provided the appellant with the required skills assessment. Item 885.221 of Schedule 2 to the Regulations makes clear that a successful application required the visa applicant to meet a qualifying score, which in this case was 120 points. Item 6B11 provided 60 points for a positive skills assessment. In his application for a visa the appellant indicated that he needed all of the points available under the "occupational qualifications" category in item 6B11 to reach the qualifying score. 70 That is, without a skills assessment by a properly specified assessing authority, the appellant would not have obtained enough points to reach the qualifying score. He made no suggestion that he would have been able to make up the points shortfall with other skills, qualifications or characteristics specified in Schedule 6B, or that he was otherwise able to meet the "qualifying score" required pursuant to s 94(1) of the Migration Act. In my view, had he provided the correct information his application was likely to have failed for this reason. 71 There was no error by the Tribunal in rejecting the contention that it was unable to give reg 2.41(c) genuine consideration, or any error in its consideration of that regulation. In considering the regulation the Tribunal correctly determined that had the "correct information" been provided to the Department, the appellant would not have been awarded 60 points for relevant occupational skills, he would not have achieved the necessary 120 points, and the visa would likely not have been issued to him. 72 In passing, I note my view that the Tribunal was wrong in finding at [30] that 900 hours of work experience was a standard precondition for accreditation. This standard appears to have been set by TRA, which was not empowered to do so. However nothing turns on this finding because the Tribunal also decided that the appellant could not have achieved the 120 point qualifying score without receiving 60 points through the Skills Assessment. As I have already said, the Tribunal was correct in this regard. 73 The appellant also seeks to rely on the Full Court decision of Dai v Minister for Immigration and Citizenship and Anor (2007) 165 FCR 458, arguing that it is analogous to the present case in that the specification of TRA as an assessing authority was beyond the appellant's control. In Dai the Minister needed to be satisfied that the appellant had failed to comply with visa condition 8202 before deciding to cancel the appellant's visa. Condition 8202 relevantly stated: (1) The holder … must meet the requirements of subclauses (2) and (3). … (3) A holder meets the requirements of this subclause if: … (b) in any case - the holder achieves an academic result that is certified by the education provider to be at least satisfactory: (i) for a course that runs for less than a semester - for the course; or (ii) for a course that runs for at least a semester - for each term or semester (whichever is shorter) of the course. 74 North J observed at [8] that: …non-compliance with the condition, and the trigger for cancellation, arises upon non-certification of satisfactory performance rather than upon certification of unsatisfactory performance. The issue that emerges is how could a visa holder comply or fail to comply with the condition if required to provide certification, over which the visa holder has no control? 75 The appellant was successful in Dai, and North J explained at [19] to [20]: There was no act of the visa holder which could satisfy the requirement of condition 8202. The achievement of the academic result was irrelevant unless certified. No matter what the student did or did not do, the absence of a certificate would be fatal. Thus, there was no way in which the visa holder could not comply with the condition 8202. It follows that it was not possible for the Minister to be satisfied that the visa holder had not complied with condition 8202. It further follows that the power of the Minister to cancel the appellant's visa under s 116(3) was not engaged. 76 Gyles J also found for the appellant, explaining at [34] and [37] that Condition 8202 was uncertain and unreasonable, compelling compliance by the visa holder with a requirement that was not practicable or certain. 77 I do not accept that Dai is analogous to the present case. In Dai the resolution of the particular issue turned on the observation that the relevant regulations required something uncertain, impractical or impossible of the visa holder. No such difficulty exists in the regulatory framework at the centre of the present case. 78 The appeal is dismissed and the appellant is ordered to pay the first respondent's costs. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Murphy.
Batra
Minister for Immigration and Citizenship
REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court dismissing an application for judicial review of a decision of the Migration Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision by a delegate of the Minister for Immigration and Citizenship ("the delegate") to cancel the appellant's visa pursuant to ss 101 and 103 of the Migration Act 1958 (Cth) ("the Act"): (Ankit Batra v Minister for Immigration and Anor [2012] FMCA 544). 2 The appellant is an Indian citizen who arrived in Australia in late 2005 on a student visa and then applied for a General Skilled Migration (Subclass 885) visa, basing the application in his having skills as a pastry cook. Under the Migration Regulations 1994 (Cth) ("the Regulations") the standard of skills required of a Subclass 885 visa holder was to be set by a "relevant assessing authority", which also assessed the appellant's skills against that standard. 3 The appellant applied for a skills assessment from a body named Trades Recognition Australia ("TRA"). In doing so he submitted a work reference to it which said that he had done more than 900 hours of unpaid work as a pastry cook at a business named "O'heas Bakery and Deli" in Coburg, Victoria ("O'heas Bakery"). He was successful in obtaining a positive skills assessment and he submitted it to the Department of Immigration and Citizenship ("the Department") as part of his application for a visa. He was granted a General Skilled Migration (Subclass 885) visa. 4 Following some investigations, a delegate of the Minister ("the delegate") became aware of allegations that the work reference the appellant provided to TRA was false. The delegate gave him notice of intention to consider cancellation of the visa. 5 On 24 September 2010 the delegate cancelled the appellant's visa. The appellant appealed to the Tribunal. On 3 March 2011 the Tribunal affirmed the delegate's decision. The appellant then made an application for judicial review by the Federal Magistrates Court. That application was dismissed on 24 July 2012. 6 The appellant now appeals from the Federal Magistrates Court to the Federal Court. For the reasons I set out below the appeal must be dismissed.
(2007) 165 FCR 458
(2001) 205 CLR 507
(2003) 211 CLR 476
(1998) 194 CLR 355