Chung v Minister for Immigration and Border Protection

Judgment (7 paragraphs)

[1]

INTRODUCTION 1 This is an appeal from the decision of the Federal Circuit Court dismissing an application for judicial review of a decision of the Migration Review Tribunal (the Tribunal). By its decision given on the 24 February 2014, the Tribunal affirmed the decision of a delegate of the Minister not to grant to the appellants Skilled (Provisional) (Class VC) (subclass 485) visas (the visas) under s 65(b) of the Migration Act 1958 (Cth) (the Act). 2 For the reasons developed below, the appeal must be dismissed with costs. First it was not necessary for the Tribunal to find that either or both of the appellants had knowingly provided a bogus document or false information before finding that Public Interest Criterion (PIC) 4020 for the grant of the visa as required by cl 485.224 was not met. It sufficed for the Tribunal to find that information or document was purposefully false. Secondly, any concerns as to the manner in which the Tribunal responded to the application for an adjournment are not material where the Tribunal was entitled to proceed without a hearing under s 360(2)(c) of the Act. 3 Finally, by way of procedural matters, I note that appellants appeared unrepresented and did not file written submissions in support of the appeal notwithstanding the direction by the Registrar to file and serve a written outline of submissions made on 23 September 2014. The Minister filed detailed written submissions in accordance with those directions. While the appellants had initially considered that an interpreter was unnecessary, the hearing on 24 February 2015 was adjourned when it became apparent that the appellants, for whom English is not their native language, were experiencing difficulties in following the proceedings and wished to have the proceedings interpreted. The hearing was relisted on 26 February 2015 by which time an interpreter had been arranged.

[2]

3.1 Whether it was necessary for the Tribunal to find that the appellants knowingly provided a bogus document or false information? 19 In line with the application for judicial review in the Court below, the notice of appeal essentially complained that the Federal Circuit Court ought to have found that the Tribunal failed to give weight to the fact that the appellants were misled by their migration agent and did not know what he was doing with their applications, and that they were the victim of a scam. Specifically the appellants pleaded in the notice of appeal that: Federal Circuit court dismissed my case and failed to realise the jurisdictional error in Tribunals judgment. MRT refused my review application stating that I don't satisfy PIC cl.4020(1). Member asked himself question that at the time of decision cl 4020(1) should be satisfied. I was a student. An Australian registered migration Agent Mr Jatinder Singh advised us and more students that we can get work visa for 4 years. I was happy to hear that and didnot not know that he was applying subclass 485 visa. I was under understanding that I will get work visa which is legitimate as per law. The consultant is Australian registered Migration Agent so I Trusted him. My visa was refused by DIABP stating that bogus document is being provided. Later tribunal looked into case and asked me to give documents or compassionate circumstances, I was not aware of all these things done by Mr Jatinder so my case is "exceptional circumstances beyond my control". The very trust I put on Australian Registered Migration Agent had been broken and I was being cheated. I am a victim of crime commited by Mr Jatinder singh. Tribunal member failed to put weight on this fact that we were misled and I didnot even know what Mr Jatinder singh is doing with our visa. We simply were said that we are eligible to get work visa. We didnot provide any information to Immigration. All false documents/information was given by Mr Jatinder Singh without our knowledge. Tribunal member failed to recognise the fact that we were victim of crime commited by Mr Jatinder singh. The circumstances in our case were beyond our control as we were not aware of this scam. Tribunal member made error in his judgement. 20 As the Court below acknowledged, it is clear from the grounds of appeal and Mrs. Chung's submissions in this Court that the appellants are extremely upset about the predicament in which their migration agent has apparently placed them. In this regard it must also be recalled, as the initial email from the Department on 20 February 2012 acknowledged, that the involvement of the appellants' migration agent in the preparation of the appellants' application was uncovered by the Department when it identified a file relating to the application with a migration agent found to have lodged applications containing false or misleading information. This lends some support to the appellants' position that they have fallen victim to an unscrupulous agent. 21 However, that does not in itself suffice to establish an error in the Tribunal's decision. 22 First, the Court below rightly held at [22] that it is not necessary for the Tribunal to determine whether a visa applicant knowingly provided false information before finding that there has been a failure to comply with PIC 4020. It is necessary for the Tribunal to find only that the information was purposefully false. As Buchanan J (with whose reasons Allsop CJ and Rangiah JJ agreed) held in Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169; [2014] FCAFC 42: a) PIC 4020 is not directed to innocent, unintended or accidental matters (at [32]). The Minister's submission that PIC 4020 applied to any "objectively" untrue statement or information provided by an applicant, which was material or relevant to satisfaction of a visa criterion, even if made completely innocently, was rejected (at [41]). b) It was not necessary for the visa applicant to be knowingly involved in the giving of false information for PIC 4020 to apply. No element of knowledge by visa applicant was necessary (at [21], [27] and [43]). c) However, for PIC 4020 to apply, "it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact." (at [43]). 23 As to the last of these elements, Buchanan J had earlier explained at [33] that: In my view, it should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. To take the example of bogus documents, a counterfeit document is not produced accidentally. Similarly, to charge that a statement is false is not to say only that it is wrong. The accusation potentially imports some element of knowledge or intention on somebody's part, and in my view does so in the present context. 24 His Honour explained the purpose underlying the provision consistent with this construction at [49]: … the purpose of PIC 4020 was to render visa applicants ultimately responsible for the veracity of the information and documents supplied to support the application. Although the limited terms of the waiver (and therefore any discretion to excuse non-compliance) make it apparent that innocent errors are not the focus of attention, it is equally clear that PIC 4020 is directed at the overall integrity of the visa system and as a bulwark against deception and fraud from any quarter associated with a visa applicant. It is not inconsistent with a coherent public policy to make a visa applicant ultimately responsible for purposely untrue material provided with a visa application. It would be an intolerable burden on the administration of the visa system to require that those assessing visa applications not only discover that information or documents are false in a material particular, but also that the visa applicant who provided them knew them to be so. In many cases that would be impossible and would defeat the apparent intent of the provision. 25 Applying this construction, it is apparent that there was evidence before the Tribunal of information associated with the visa application having the necessary quality of purposeful falsity, namely, the inclusion of a skills assessment reference of which TRA had no record and evidence that the TRA had no record of any skills assessment reference referable to the appellants. It follows from this that there is no error in the Tribunal's finding that PIC 4020 was not satisfied. It was not incumbent upon the Tribunal to go further to find that the appellants or one of them had been knowingly involved in the giving of that false information or document. 26 In this regard, the decision of the Full Court of the Federal Court in Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 (Prodduturi (FCAFC)) does not assist in resolving the issues here, as the Minister submitted. The issue before the Federal Circuit Court (FCC) in Prodduturi was whether the migration agent had acted fraudulently in the preparation and lodgement of the visa application ostensibly by the appellant such that the appellant ought not to have responsibility as principal for his actions (Kaur & Ors v Minister for Immigration & Anor; Prodduturi v Minister for Immigration & Anor [2013] FCCA 1805 at [29] and [31] (quoted in Prodduturi (FCAFC) at [20])). The Full Court found that the FCC erred in finding that the appellant had failed to prove the falsity of the migration agent's actions when it was not only accepted by all parties that the migration agent (also S & S Migration) had acted fraudulently, but that fraud was the subject of uncontradicted evidence (at [20]-[25] (Perram and Perry JJ, with whose reasons Gleeson J relevantly agreed)). However, the treatment of the facts by the FCC being flawed, the Full Court would have remitted the matter to the FCC for a retrial, save for reasons not relevant here (at [29]). In the circumstances, therefore, where the Full Court did not know what the facts were, it held that "it would be inappropriate to express any views on the law which would, at best, be hypothetical observations" (at [29]).

3.2 Whether the Tribunal could proceed without further action where the appellants had not responded to the invitation to comment on the adverse information 27 It is apparent from the terms of the invitation to respond to the adverse information and the subsequent letter extending time that the appellants: (a) were advised of the particulars of the information that the Tribunal considered would be the reason for affirming the delegate's decision; (b) were advised of the relevance of that information together with the consequences of it being relied upon in affirming the delegate's decision; and (c) were given an opportunity to comment or respond to that adverse information; in compliance with the procedural fairness obligation on the Tribunal under s 357A(1) of the Act. 28 That being so, the Minister rightly submitted that the consequence of the failure to comment on, or respond to, the information within the extended time meant that the Tribunal could proceed to a decision on the review without taking any further action to obtain the appellants' views on the information by virtue of s 359C(2) of the Act. Furthermore, as s 359C(2) applied, s 360(3) prescribed the further consequence that the appellants were thereafter not entitled to appear before the Tribunal. Section 360 of the Act provides that: (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 359C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. (emphasis added) 29 While I do not necessarily accept the Minister's submission that this means that the Tribunal no longer has any discretion to permit an applicant to appear, I did not hear full argument on the point and it is not necessary to decide that here. The important point for present purposes is that there was no longer any entitlement to appear.

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Judgment (7 paragraphs)

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