Dhiman v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 The Skilled (Provisional) (Class VC) visa permits graduates of Australian educational institutions and holders of certain temporary skilled visas to reside in Australia temporarily in order to obtain the skills and qualifications required for permanent General Skilled Migration visas. There are two sub-classes: subclass 485 (Skilled - Graduate) and subclass 487 (Skilled - Regional Sponsored). 2 Ram Kishan Dhiman is a 29 year-old Indian national. He has been in Australia since December 2006 on a student visa. On 3 March 2009, after completing a skills assessment carried out by Trades Recognition Australia ("TRA"), he applied to the Minister for Immigration and Citizenship for a subclass 485 (Skilled - Graduate) visa. After a delegate of the Minister refused his application, Mr Dhiman applied to the Migration Review Tribunal for merits review but the tribunal affirmed the delegate's decision. Mr Dhiman tried to have the tribunal's decision quashed by the Federal Magistrates Court but was unsuccessful there, too. This is an appeal from the judgment of that court. 3 The Minister may only grant a visa if he is satisfied of certain criteria, including criteria prescribed by the Migration Regulations 1994 (Cth) ("the Regulations"). Otherwise he must refuse the visa. See Migration Act 1958 (Cth), s 65 ("the Act"). In the case of the visa for which Mr Dhiman applied, the relevant criteria are set out in Sch 2, cl 485 of the Regulations. 4 Clause 485.22 contains the criteria of which the Minister must be satisfied at the time of the decision. 5 Subclause 485.221 is in the following terms: (a) The skills of the applicant for the applicant's nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation. (b) If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of studying a registered course. 6 The "relevant assessing authority" is a person or body specified by the Minister by instrument in writing as the relevant assessing authority for a skilled occupation and for one or more countries for the purposes of an application for a skills assessment made by a resident of those specified countries: reg 2.26B. But the Minister is prohibited from making an instrument unless written approval has first been given by the Education Minister or the Employment Minister: reg 2.26B(1A). 7 One of the criteria of which the Minister must be satisfied at the time of the decision is public interest criterion (PIC) 4020 contained in Sch 4, cl 4020 (see Sch 2, cl 485.224(a)) which relevantly provides: (1) There is no evidence before the Minister that the applicant has given, or caused to be given to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a bogus document or information that is false or misleading in a material particular in relation to: (a) the application for the visa; (b) … … (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. 8 The Minister (and the tribunal on review) may, however, waive this requirement if satisfied that compelling circumstances affecting the interests of Australia or compassionate or compelling circumstances affecting the interests of an Australian citizen or permanent resident or an eligible New Zealand citizen justify the granting of the visa: Sch 4, cl 4020(4). 9 The criteria of which the Minister was required to be satisfied at the time of the application (set out in Sch 2, cl 485.21) relevantly included that: (a) the applicant satisfied the 2 year study requirement in the period of 6 months ending immediately before the day on which the application was made; and (b) each degree, diploma or trade qualification used to satisfy the 2 year study requirement is closely related to the applicant's nominated skilled occupation. 10 Regulation 1.15F relevantly provided that a person satisfies the 2 year study requirement if the person satisfies the Minister that he or she has completed one or more degrees, diplomas or trade qualifications for award by an Australian education institution as a result of a course or courses that are registered courses, that were completed in a total of at least 16 calendar months, and that were completed as a result of a total of at least two academic years of study. Clause 485.213, which contains the two year study requirement, has since been amended and with it reg 1.15F. The amendments are of no consequence, not least because they apply only in relation to visa applications made on or after 15 May 2009: Migration Amendment Regulations (No. 4) 2009 (Cth), cl 4. 11 Mr Dhiman relied on a diploma and a trades certificate. The Diploma (from the Windsor Institute of Commerce & Languages) was a Diploma of Tourism Marketing and Product Development. The trades certificate, also from the Windsor Institute, was a Certificate III in Hospitality (Commercial Cookery). By letter dated 29 June 2011 the tribunal invited Mr Dhiman to provide a written statement indicating why the qualifications on which he relied to meet the 2 year study requirement were closely related to his nominated occupation of cook. 12 In his visa application Mr Dhiman nominated his skilled occupation as "cook" and provided evidence of the skills assessment carried out by TRA. He claimed to have worked as a cook at a restaurant known as Bombay Fusion from 1 January 2008 until 31 December 2008. In a letter to Mr Dhiman dated 13 July 2010 the Department of Immigration and Citizenship ("DIAC") questioned his bona fides, suggesting that information he had supplied the Department of Education, Employment and Workplace Relations to obtain a positive skills assessment from TRA may have been false or misleading. Apparently, DIAC had conducted an investigation into work references provided by Bombay Fusion and concluded that the reference Mr Dhiman had provided to TRA was fraudulently obtained. 13 Mr Dhiman denied the imputation and provided a statutory declaration with his comments, some of which contradicted statements he had made in his visa application. Nevertheless, on the basis of the DIAC investigation, the delegate concluded that the evidence of employment provided by Mr Dhiman with his application and submitted to TRA was false or misleading in a material particular and therefore found that Mr Dhiman did not meet the requirements of PIC 4020 and cl 485.224 of the Regulations. 14 The tribunal formed the same view. It drew Mr Dhiman's attention to numerous inconsistencies between his evidence and the various documents he had supplied, including the statutory declaration he had submitted to the Department. For these Mr Dhiman either blamed others, including his migration agent, or pleaded that he was confused or did not understand, although in one respect he admitted to having lied. The tribunal was unimpressed. Mr Dhiman supplied group certificates and referred to his employment references to substantiate his claims but the tribunal did not accept they were probative, in part because of information from DIAC that the owner of the restaurant had issued documents in return for payment. The tribunal concluded that Mr Dhiman had not been employed at Bombay Fusion as claimed and said it placed significant weight on the fact that written and oral evidence Mr Dhiman had provided concerning the period of his employment was inconsistent with the information he had provided in his application form. It went on to find that Mr Dhiman had provided information in his application form and to the tribunal that was false or misleading in a material particular. For this reason it was not satisfied that he met PIC 4020. The tribunal declined to waive compliance in the absence of any evidence to suggest the existence of circumstances to warrant doing so. 15 The tribunal was also not satisfied that Mr Dhiman's Certificate III in Hospitality (a twelve-month course) satisfied the requirements of reg 1.15F. It further decided that it could not be satisfied that each of the qualifications used to satisfy the two year study requirement imposed by cl 485.213 was closely related to Mr Dhiman's nominated skilled occupation of cook. 16 In the show cause application filed in the Federal Magistrates Court Mr Dhiman applied for the decision of the tribunal or the Minister to be quashed but identified no grounds for the making of the order. Still, the federal magistrate considered whether the tribunal's decision was affected by jurisdictional error. Following Singh v Minister for Immigration & Citizenship [2012] FMCA 145, which the Minister accepted was relevantly indistinguishable, her Honour found that the tribunal had fallen into jurisdictional error by finding that it could not be satisfied that Mr Dhiman met the requirements of PIC 4020(1) and therefore cl 485.224. In Singh it was common ground that, although the Minister had made an instrument specifying the TRA as a relevant assessing authority, it had not been approved for that purpose by the Education Minister or the Employment Minister as required by reg 2.26B(1A) and so the TRA had not been validly specified as the relevantly assessing authority. Driver FM held (at [68]) that the visa criteria applicable at the time of the decision did not therefore include those in cll 485.214 or 485.221. His Honour noted (at [5]) that for the grant of a subclause 485 visa there was no requirement that an applicant demonstrate any form of past employment and, having found that cll 485.214 and 485.221 did not apply, held (at [68]) that there was no visa criteria upon which the allegedly false information could materially bear. Consequently, his Honour concluded that the admittedly false information about the applicant's employment provided in the visa application and to the tribunal was not false or misleading in a material particular. 17 On the same basis, the federal magistrate in the present case found the tribunal was in error in relation to its finding on cl 485.224. Notwithstanding the jurisdictional error she dismissed Mr Dhiman's application because she found that the findings as to the criterion in cl 485.213 (relating to the two year study requirement) were not affected by jurisdictional error and this constituted an independent basis for the tribunal's decision. 18 Her Honour also explored the possibility of error in the letter the tribunal sent to Mr Dhiman on 29 June 2011. Apart from asking him for information about his trade qualifications, the letter invited Mr Dhiman to comment on the results of the DIAC investigation relating to Bombay Fusion, informing him that the information was relevant because the tribunal might find he was not employed as a cook at Bombay Fusion for the period claimed and that might cause the tribunal to conclude that he had given or caused to be given to the Minister, an officer or the relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to his visa application. The letter went on to state: the Tribunal may not be satisfied that you meet Public Interest Criterion (PIC) 4020 and cl. 485.226. You may then not meet the requirements for the grant of the visa for which you have applied. 19 Her Honour found that the reference to cl 485.226 was a typographical error, holding (at [52]) that it was apparent from its context that the reference should have been to cl 485.224. She then went on to hold that the typographical error did not mean that the tribunal had failed to meet its obligations under s 359A of the Act, which requires the tribunal to give to an applicant clear particulars of any information it considers would be the reason, or part of the reason, for affirming the decision under review and ensure, as far as is reasonably practicable, that the applicant understands why it is relevant and the consequences of relying on it. In any case, her Honour observed, the error did not relate to the tribunal's decision concerning the criteria in cl. 485.213, which, it will be recalled, she held provided an independent basis, untainted by jurisdictional error, for not interfering with the tribunal's decision. 20 There is one ground of appeal. It reads: The information provided was accurate and honest and needs to be recognised as such. 21 The order sought is that the decision be overturned and the 485 visa granted. This Court has no power to grant a visa. If there is merit in the appeal, the most it could do is quash the tribunal's decision and require it to reconsider the application for review. As it happens, the appeal is entirely without merit. Whether or not the information Mr Dhiman provided was accurate or honest was a question for the primary decision-maker and the tribunal on review, not the federal magistrate. Her Honour had no power to decide whether the information was accurate or honest, nor do I. The decision of the tribunal was a privative clause decision: Migration Act, s 474. This means it could only be set aside for jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The application in the Federal Magistrates Court did not plead that there was any error, let alone one going to jurisdiction. Still, in a detailed and comprehensive review of the case, the federal magistrate explored whether there was any scope for such a finding. To succeed in an appeal, it is necessary to show that the federal magistrate fell into error: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424. But neither in the notice of appeal, nor in oral submissions at the hearing, did Mr Dhiman point to any error on her Honour's part entitling this Court to intervene and I am unable to discern one. 22 Plainly her Honour was right to hold that the tribunal's finding as to the two year study requirement provided an independent basis to support its decision. Accordingly, the Court was entitled to refuse relief. See for example, VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [33]; SZGXS v Minister for Immigration and Citizenship [2007] FCA 398 at [11]. It might be thought that the tribunal's conclusion that the Certificate III in Hospitality (Commercial Cookery) was not closely related to the applicant's nominated skilled occupation was, on its face, manifestly unreasonable. But even if it were, because of the duration of the study required to complete the certificate, Mr Dhiman would still fall foul of the two year study requirement unless he could satisfy the tribunal that the Diploma of Tourism Marketing and Product Development was closely related to work of a cook. The federal magistrate relied on the judgment of Logan J in Prasad v Minister for Immigration and Citizenship (2012) 128 ALD 113 to conclude that the tribunal correctly construed cl 485.213 and held that a finding that the applicant did not meet the requirement was a finding of fact reasonably open to it on the material before it. I respectfully agree. Even if, as Mr Dhiman submitted, the Diploma was closely related to the work of a cook and the tribunal fell into error in concluding otherwise, that would have been an error within jurisdiction (Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [163] per Hayne J; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531). It could not be set aside by the Federal Magistrates Court. 23 For these reasons the appeal must be dismissed. Mr Dhiman should pay the Minister's costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.