Khan v Minister for Immigration and Citizenship

Legislation 6 The Minister under s 29(1)(b) of the Migration Act 1958 (Cth) may grant a non-citizen a visa to remain in Australia. Criteria for the grant of a particular visa are prescribed in the Migration Regulations 1994 (Cth). Of relevance in this appeal is item 1128CA of Schedule 1 of the regulations together with the criteria in Schedule 2 for a subclass 880 Skill-Independent Overseas Student visa. It is unnecessary to set out the former. 7 Schedule 2 prescribes, in relation to a Subclass Skilled -Independent Overseas Student visa, primary and secondary criteria for the grant of the visa. The primary criteria that must be satisfied by at least 1 member of a family unit, in this case the appellant, are found in clause 880.2. The secondary criteria which must be satisfied by applicants who are members of the family unit of a person who satisfied the primary criteria are to be found in clause 880.3. Clause 880.2 provides: 880.2 Primary criteria Note: The primary criteria must be satisfied by at least 1 member of a family unit. The other members of the family unit who are applicants for a visa of this Subclass need satisfy only the secondary criteria. 880.21 Criteria to be satisfied at time of application 880.210 The application must be made before 1 September 2007. 880.211 The Minister is satisfied that the applicant has applied for an assessment of the applicant's skills for the nominated skilled occupation by a relevant assessing authority. 880.212 The Minister is satisfied that the applicant has applied for an Australian Federal Police check in relation to the applicant during the 12 months immediately before the day when the application is made. 880.213 The Minister is satisfied that the applicant has undergone a medical examination, for the purpose of the application, carried out by any of the following: (a) a Medical Officer of the Commonwealth; (b) a medical practitioner approved by the Minister for sub subparagraph 1128CA (3) (d) (i) (B) of Schedule 1; (c) a medical practitioner employed by an organisation approved by the Minister for sub subparagraph 1128CA (3) (d) (i) (C) of Schedule 1. 880.214 The Minister is satisfied that the applicant's declaration under paragraph 1128CA (3) (l) of Schedule 1 is true. 880.215 The Minister is satisfied that each of the degrees, diplomas or trade qualifications mentioned in subparagraph 1128CA (3) (l) (i) or (ii) of Schedule 1 is relevant to the skilled occupation nominated by the applicant in his or her application. 880.216 If a declaration was required to be made for paragraph 1128CA (3) (m) or (ma) of Schedule 1 in relation to the applicant, the Minister is satisfied that declaration is true. 880.22 Criteria to be satisfied at time of decision 880.221 If regulation 2.27B applies, the applicant provides, for the purposes of the application, the assessment of his or her skills mentioned in subregulation 2.27B (4). 880.222 The applicant has the qualifying score when assessed in relation to the visa under Subdivision B of Division 3 of Part 2 of the Act. Note That Subdivision of the Act provides in sections 92 to 96 for the application of a points system, under which applicants for relevant visas are given an assessed score based on the prescribed number of points for particular attributes, which is assessed against the relevant pool mark and pass mark. The prescribed points and the manner of their allocation are provided for in Division 2.2 (see regulation 2.26A), and Schedule 6A, of these Regulations. Pool marks and pass marks are set from time to time by the Minister by notice in the Gazette (Act, section 96). 880.222A In determining whether the applicant satisfies a criterion that he or she has been employed in a skilled occupation for a certain period, a period of employment in Australia must not be counted unless the applicant: (a) held: (i) a substantive visa; or (ii) a Subclass 010 Bridging A visa; or (iii) a Subclass 020 Bridging B visa; authorising him or her to work during that period; and (b) complied with the conditions of that visa. 880.223 The applicant has vocational English. 880.224 No evidence has become available since the time of application that the information given to satisfy Subdivision 880.21, or to meet the requirements of item 1128CA of Schedule 1, was false or misleading in a material particular. (Emphasis added) 880.225 The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010. 880.227 (1) Each member of the family unit of the applicant who is an applicant for a Subclass 880 visa is a person who satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4009 and 4010. (2) Each member of the family unit of the applicant who is not an applicant for a Subclass 880 visa is a person who: (a) satisfies public interest criteria 4001, 4002, 4003 and 4004; and (b) satisfies public interest criterion 4005, unless the Minister is satisfied that it would be unreasonable to require the person to undergo assessment in relation to that criterion. 880.228 If a person (the additional applicant): (a) is a member of the family unit of the applicant; and (b) has not turned 18; and (c) made a combined application with the applicant - public interest criteria 4015 and 4016 are satisfied in relation to the additional applicant. 880.229 Approval of the application would not result in either: (a) the number of Subclass 880 visas granted in a financial year exceeding the maximum number of Subclass 880 visas, as determined by an instrument in writing for this paragraph, that may be granted in that financial year; or (b) the number of visas of particular classes (including Subclass 880) granted in a financial year exceeding the maximum number of visas of those classes, as determined by an instrument in writing for this paragraph, that may be granted in that financial year. 880.230 (1) A relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation, and no evidence has become available that the information given or used as part of the assessment of the applicant's skills is false or misleading in a material particular. (Emphasis added) (2) 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 full time study of a registered course. 880.231 An Australian Federal Police check undertaken in the past 12 months in relation to the applicant has been provided to the Minister. 880.232 The Minister is satisfied that: (a) the applicant is the holder of a valid passport that: (i) was issued to the applicant by an official source; and (ii) is in the form issued by the official source; or (b) it would be unreasonable to require the applicant to be the holder of a passport. 8 As can be seen, some of the primary criteria must be satisfied at the time of the visa application and others at the time a decision is made to grant or refuse the visa. At the time of decision, no evidence must have become available since the time of application that information given to satisfy the primary criteria "was false or misleading in a material particular" (clause 880.224) and the relevant assessing authority has assessed the skills of the applicant and no evidence has become available that information given or used as part of the assessment "is false or misleading in a material particular" (clause 880.230(1)).

The Migration Review Tribunal 9 The appellant applied to the Tribunal for a review of the decision of the delegate on 30 October 2008. The appellant was represented by a solicitor. Correspondence passed between the solicitor and the Tribunal culminating in a letter from the Tribunal of 3 November 2009 inviting the appellant to comment on the information the Tribunal considered would be the reason for affirming the decision under review and also invited the appellant to provide additional information that would be relevant to the review. The letter referred to the fact that documents had been submitted to the TRA on behalf of the appellant which falsely claimed he had worked at the China Town Restaurant and foreshadowed the possibility that the Tribunal might find that the appellant did not satisfy, in particular, the criterion in clause 880.230. 10 The appellant replied through his solicitor in a letter dated 30 November 2009. In that letter the appellant said, in effect, he was not aware what his agent had submitted to the TRA though he also indicated that at no stage had he authorised the agent to submit false documents to that body. The letter also made reference to a second application to the TRA which the solicitor had made on behalf of the appellant: [G]iven the TRA response, the Tribunal can conclude that in fact TRA has revalidated its decision approving our client's trade qualifications on the basis of the information before it at the date of the most recent communication we received from TRA. (emphasis added) This second application was made by letter dated 9 September 2009 in which fresh material had been submitted which did not include the false material submitted earlier. The TRA responded to this application in a letter of 14 September 2009 informing the appellant that it was unable to assess the appellant again because he had already received a successful skills assessment in the designated occupation. The second application to the TRA included information about employment at the Summit Restaurant from 26 October 2006 to 28 June 2007, an employee payment summary from the Summit Restaurant from 7 November 2006 until 29 May 2007 and a reference from the Managing Director of Global United Corporation Pty Ltd t/a Sunshine Cuisine, dated 1 September 2009, indicating that the appellant had worked as a chef for 38 to 40 hours per week since 1 January 2009. 11 Following a request from the Tribunal at the hearing to provide further documents, the appellant on 12 March 2010 provided a PAYG summary from 20 October 2006 to 12 April 2007 from Trippas White Catering which did not indicate the position the primary appellant held nor the hours worked. The appellant was unable to provide any other documents. 12 In its reasons for decision the Tribunal addressed the question of whether material provided to the TRA was false in a material particular. It noted that the appellant admitted that he had never worked at the China Town Restaurant and the letter purportedly from that restaurant was false. It also noted it was misleading in that it indicated the appellant had work experience there which he did not. The Tribunal then said: 46 The Tribunal has to determine if the Restaurant work reference was given and used for a skilled assessment by the TRA and was false or misleading in a material particular. In light of the information from TRA the Tribunal finds that the Restaurant work reference was given and used as part of the assessment of the primary applicant's skills 47 The Full Federal Court in the Dela Cruz matter considered the phrase in the context of section 20(1) of the Act. Case law from England and Australia was referred to and at 352 the Full Court stated: The term 'material requires non more or no less than that: the false particular must be of moment or significant, not merely trivial or inconsequential. Section 20(1) does not apply to statements that are merely false or misleading; there is the added requirement that the statement be false or misleading in a material particular…a statement will be false and misleading in a material particular if it is relevant to the purpose for which it is made… 48 What was relevant, that is material, to TRA when it assessed the primary applicant's nominated skilled occupation was the primary applicant's educational qualifications and his work experience. The relevant work experience, as discussed with the primary applicant at the hearing, included 900 hours of work experience and, therefore, the Tribunal finds that the Restaurant work reference was a material particular. In light of all of the above findings the Tribunal also finds that the Restaurant work reference was false and misleading in a material particular. 49 The Tribunal has also considered if the information is false and misleading in a material particular in light of the primary applicant's claims that he had, during the relevant period up to 3 April 2007 when the application for the assessment was lodged, been employed as a Cook by the Summit Restaurants and Trippas White. 13 The Tribunal's approach involved assessing whether information provided was, at the time it was provided namely on 3 April 2007, false or misleading in a material particular. 14 Notwithstanding the Tribunal's conclusion that information had been provided which was false and misleading in a material particular, it went on to consider whether in fact the appellant had the requisite number of hours of work experience (900) at the time the assessment application was lodged with the TRA on 3 April 2007. The Tribunal had regard to the appellant's evidence concerning his actual work history, including his work at the Summit restaurant and at Trippas White, and concluded that as at the date of the application to TRA, he did not have the required 900 hours work experience. The Tribunal discussed the additional information furnished during the review finding that the appellant was not employed as a cook at Trippas White Catering and that even if the hours worked were added to the hours worked at the Summit Restaurant the total would only be 802.4 hours not 900 hours. 15 Ultimately the Tribunal held that the appellant did not satisfy the criteria in clause 880.230. Its reasoning process appears to have involved at least two steps. The first was to ascertain whether information had been provided to the TRA which had been false or misleading in a material particular at the time it was furnished and the second was to ascertain whether, on the true facts, the TRA could have reached the same conclusion (that the appellant had at least 900 hours work experience as a cook) had the false or misleading information not been provided but, instead, information provided which was true. Having regard to what I understand to be the issue raised in this appeal it is unnecessary to explore the question of whether it was open to the Tribunal to embark upon this second step of fact-finding. On one view (having regard to the proper construction of clause 880.230) it was only necessary for the Tribunal to find that the information actually provided was false or misleading in a material particular (indeed the threshold is that there is evidence available indicating the information was of this character) without exploring what the TRA might have concluded if the information provided had been correct. Indeed on that view it was not open to the Tribunal to second guess what the TRA might have determined. The process of skills assessment was entrusted to that body and not the Tribunal.

Decision of Federal Magistrates Court 16 On 14 April 2010 the appellant filed an application for judicial review of the Tribunal's decision raising one ground of review: The Tribunal misconstrued and misapplied the applicable law, thereby committing jurisdictional error by failing to apply the applicable law to the facts. Particulars The Tribunal misconstrued and misapplied clause 880.230 of Schedule 2 of the Migration Regulations 1994 (Cth). 17 The appellant submitted that the Tribunal asked itself the wrong question, did not consider relevant information about the appellant's work experience, failed to apply the applicable law, and did not have regard to the most recent information available at the time of decision. 18 The Federal Magistrate observed at [26]: In the present case, Mr Khan conceded before the Tribunal that the work reference supplied to the TRA for China Town Restaurant was false. It was material because it bore on the question of whether Mr Khan had acquired 900 hours of work experience. It was arguable that the falsity was not material, if, up to the time of the TRA assessment, there was other evidence available that he had acquired the necessary work experience. The Tribunal considered that possibility and rejected it on the basis that the available evidence established that at the relevant time Mr Khan had only 682.4 hours of work experience (or, on the most generous possible view, 802.4 hours). Mr Khan contends that the Tribunal was wrong to "stop the clock" at 3 April 2007 because there was evidence of additional work experience having been obtained after that date. However, because the issue is one of materiality to the TRA assessment, work experience gained after that assessment is not material. According to the employment payment summary…Mr Khan acquired an additional 78 hours of work experience between 3 April 2007 and 17 April 2007 and even if the Tribunal should have taken into account some or all of those additional hours, it would not have assisted him. 19 The Federal Magistrate concluded that the Tribunal did not misconstrue or misapply clause 880.230(1). 20 At [22] of his reasons, his Honour held that the "issue of relevance for the purposes of clause 880.230 is not whether, at the time of the Tribunal decision, the applicant had accrued 900 hours of work experience but, rather, whether TRA was, in substance, misled." Reference was made to Islam v Minister for Immigration [2010] FMCA 379 at [33] where his Honour had held: The Tribunal's conclusion was open to it on the material before it. Mr Islam was required by the criteria relied upon by TRA to have completed 900 hours of relevant work experience at the time of the TRA assessment. It did not matter whether he had accumulated 900 hours of relevant work experience by the time of the Tribunal's decision." 21 His Honour indicated that the High Court decision in Berenguel v Minister for Immigration (2010) 264 ALR 417 was of no assistance to the appellant because, "until the assessment is made, clause 880.230(1) has no work to do". His Honour ultimately concluded the Tribunal's decision was not affected by jurisdictional error and the application for judicial review was dismissed.

The appeal 22 The appeal was heard on two days. On the first, counsel for the appellant sought an adjournment to consider how the appellant's case might be formulated or reformulated. On the second the appellant's case was advanced in a comparatively focused way. The essential point raised by the appellant was whether the Tribunal was correct in proceeding on the basis that the question of whether information provided to the assessing authority had the character of being false or misleading and, if so, in a material particular was to be answered by considering its character at the time the application for assessment was made. 23 A formulation similar to that found in clause 880.230(1) was considered by a Full Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz (1992) 34 FCR 348. In issue was the expression "false or misleading in a material particular" as it appeared in s 20(1) of the Migration Act 1958 (Cth). As to materiality, the Full Court observed at 352 that any impugned statement must be "relevant to the purpose for which it is made" and it will be relevant to that purpose "if it may - not only if it must or if it will - be taken into account in making a decision under the Act as to the grant of the visa or entry permit in respect of which the statement is made." This formulation has been considered in a number cases subsequently: cf Meeuwissen v Boden (2010) 55 MVR 174, [2010] NSWSC 106; Singh v Minister for Immigration and Ethnic Affairs (unreported judgment) [1994] FCA 1011; Wong v Minister for Immigration and Ethnic Affairs (1994) 37 ALD 51; Kim v Minister for Immigration, Local Government and Ethnic Affairs (1993) 44 FCR 75. 24 In Kim the applicant had made a false or misleading statement in a material particular when he failed to disclose the marriage of a person with whom he had a de facto relationship. While it was conceded that the error was due to the length and complexity of the form for a person with an imperfect command of English, nevertheless it was held that it is essential that reliable information is placed before the decision-maker and it did not matter that the disclosure of the true facts would not have hindered the application. 25 As noted earlier, the essential point raised in this appeal is whether the Tribunal was correct in proceeding on the basis that the question of whether information provided to the assessing authority had the character of being false or misleading and, if so, in a material particular was to be answered by considering its character at the time the application for assessment was made. The appellant submitted this was not the correct approach and that an assessment could be made as to whether information had been false or misleading in a material particular having regard to information later furnished by a visa applicant which could sustain a conclusion as to the facts which was the same conclusion reached by reference to the false or misleading information. It can be accepted that the use of the present tense ("is") in 880.230(1) may be intended to signify that a decision maker, at the time of decision, is to then assess whether the information is of this character by reference to all information then known. That is, the decision maker is to consider whether at the time of decision the information is false or misleading and, if so, is in a material particular. Not only is the present tense used but its use can be contrasted with the use of the past tense ("was") in 880.224 and the present tense is embodied in a criterion that has to be satisfied at the time of decision. 26 While the statutory formulation considered by the Full Court in Cruz deployed the past tense ("was"), the approach of the Full Court concerning the purpose of such a provision is equally applicable, in my opinion, to clause 880.230(1). That is, the purpose of such a provision is to guard against a decision being corrupted by the furnishing of information which is false or misleading. As the Full Court observed, a decision maker is entitled to seek and be told the truth. In that case the section operated on information provided to an immigration official. In the present case the provision operates on information founding a decision (by way of assessment) of an assessing authority. The plain purpose of clause 880.230(1) is to ensure that the assessment has not been corrupted by the provision of false or misleading information. That conclusion is reinforced by the reference in clause 880.230(1) to the relevant information as being information "given or used" as part of the assessment. 27 Is this purpose achieved if the word "is" operates in the way suggested by the appellant? It is difficult to conceive of a situation where information was false or misleading at the time it was provided to the assessing authority but the information would not remain false or misleading and thus would not be false or misleading at the time of decision when this criterion is considered. The word "information" is probably primarily concerned with historical or existing facts though could conceivably also include then existing intentions or opinions about events which may occur subsequently. In other words that provision is directed to what is said by an applicant to the assessing authority about past or present events and what the applicant then believed might occur in the future. However information of either type would, if false or misleading at the time it was given, remain false or misleading. That is, if an applicant recounted an historical or existing fact and the account was false or misleading at the time it was given, it would continue to be false or misleading. Equally if an applicant articulated a view about future events (including intentions) and it was then false or misleading, it would remain false or misleading because the articulated view was, in substance, a statement about the applicant's then state of mind. A determination at the time of decision whether information was false or misleading would, as I see it, necessarily involve a determination of whether the information had been false or misleading when it had been given to and acted on by the assessing authority. 28 However the provision concerns information which is false and misleading in a material particular. It would be material because it is information which might influence the conclusion the decision maker might reach and, because it is false or misleading, underpin or at least contribute to a decision being made which might not have been made had the true position been known to the decision maker. In this way the provision appears to me to address the character of the information before or least at the time of the decision (in this case the assessment by the TRA) being made. The provision raises for consideration both the significance of the information and the possible consequences on the subsequent decision-making (in this case the assessment by the TRA) of it being false and misleading. 29 Accordingly and notwithstanding the use of the present tense ("is"), clause 880.230(1) raises for consideration the character of the information at the time it was provided to the TRA. In my opinion the Federal Magistrate was correct in concluding that the Tribunal did not fall into jurisdictional error in assessing whether the information provided by the appellant was false or misleading in a material particular having regard to its character at the time the application to the TRA was made. 30 The appeal should be dismissed with costs. However it is appropriate to comment on one matter which emerged during the hearing of the appeal. As noted earlier, during the process of review by the Tribunal, a solicitor acting on behalf of the appellant applied for a further assessment by the TRA based on information concerning the appellant's work history, the veracity of which has not been questioned. The TRA declined to undertake this second assessment because the applicant had earlier been assessed favourably. This meant the appellant's application was doomed to fail because the seeds had already been sown for non-satisfaction of the criterion in clause 880.230(1). A document published by the TRA suggests it is amenable to undertaking a reassessment if it has been earlier furnished with material which is false or misleading in a material particular. I presently have no reason to doubt that it can do so. It did not in this case. What would have been the outcome had it done so is not a matter for me to assess. However the appellant contends, as I understand it, that the outcome of such a reassessment would be favourable. The judgment of the High Court in Berenguel v Minister for Immigration would support an approach that an application for assessment (effectively reassessment) made after the application for the visa had been lodged would satisfy the criterion to be met at the time of the visa application that such an application (for assessment) had then been made. 31 In addition, having regard to a newspaper article handed up by counsel for the Minister during the hearing the appeal, the appellant's account that he placed the initial applications both for the visa and for the assessment in the hands of a migration agent who acted fraudulently without the appellant knowing of the fraud rings true. Thus the combined effect of the agent's conduct and the approach of the TRA may have been to deprive the appellant of a visa he may have been otherwise entitled to be granted. If so, this appears to me to be manifestly unfair. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.