Singh v Minister for Immigration & Anor [2012] FMCA 145

1. These proceedings began with a show cause application filed on 20 September 2011. The applicant now relies upon an amended application filed in court by leave on 1 March 2012. There are two grounds in that application:
   • 1. The Tribunal erred in concluding that Trade Recognition Australia is the relevant assessing authority for the occupation of Cook.
     • 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 Cook.
     • (b) The Tribunal erred in determining that instrument IMMI 11/068 for the purpose of reg. 2.26B(1), relevantly specifying Trade Recognition Australia to be the relevant assessing authority for the occupation of Cook, is valid.
     • (c) Without a validly approved and specified (reg. 2.26B(1) and (1A)) relevant assessing authority for the occupation of Cook, cl. 880.230(1) is not capable of being met by the Applicant. Thus in the circumstances, cl. 880.230(1) is not applicable to this application.
   • 2. The Tribunal erred in law in finding the Applicant did not meet Public Interest Criterion (PIC) 4020(1) in Schedule 4 to the Migration Regulations 1994 (Regulations).
     • Particulars
     • (a) The Tribunal erred in construing that information given to Trade Recognition Australia were information given to a relevant assessing authority for the purposes of determining whether the applicant [met] PIC 4020(1).
     • (b) The Tribunal misconstrued or misapplied the definition of "information that is false or misleading in a material particular" as defined in PIC 4020(5). The Tribunal did not consider whether the 'employment dates' provided by the Applicant in the application was relevant to any of the criteria the Minister may consider when making a decision on an application (PIC 4020(5)(b)). Thus [the Tribunal] failed to consider, from the outset, whether that information was capable of being information that is false or misleading in a material particular, for the purposes of the applicant's application.
2. I received as evidence the court book filed on 26 October 2011 and the affidavit of Da Wei David Gu made on 5 December 2011, to which is annexed a transcript of the hearing conducted by the Tribunal on 29 August 2011 as well as other documents. I also received the following exhibits:
   • Exhibit R1 - Instrument of Approval signed 15 September 2011;
   • Exhibit R2 - Instrument IMMI 11/068 dated 28 September 2011.
3. Mr Singh contends that the Tribunal failed to consider the jurisdictional basis of subclause 4020(1) in Part 1 of Schedule 4 to the Migration Regulations 1994 (Cth) ("the Regulations").
4. Mr Singh submits that subclause 4020(1) does not to apply to all information that may be false or misleading. It only applies in specified circumstances.
5. Of particular relevance are the words of limitation "information that is false or misleading in a material particular". Subclause 4020(5) defines this requirement. It applies to information that is relevant to any of the criteria that the Minister may consider when making a decision on an application, whether or not the decision is made because of that information[11].
6. Mr Singh submits that the phrase "relevant to any of the criteria" does not apply to the criteria of clause 4020 itself. If the contrary was intended, it would render subclause (5) to have no operative effect.
7. He submits that the following questions ought to be considered in determining to which information subclause 4020(1) applies:

1. Was the information given or caused to be given by the applicant? 2. Was the information given to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority, or a Medical Officer of the Commonwealth?

1. Was the information relevant to any of the criteria the Minister may consider when making a decision on an application?
2. Mr Singh submits that if any one or more of the above questions is answered in the negative, then subclause 4020(1) does not apply to the information and, therefore, it is not necessary to proceed further because such information does not fall within the jurisdictional requirements of subclause 4020(1).
3. The information which the Tribunal found was information which was false or misleading in a material particular was:

1. employment dates and place of employment provided on the application form[12] ("Information A"); 2. employment reference letters provided to TRA[13] ("Information B");

1. copy of the employment reference letters originally provided to TRA, provided to the Tribunal[14] ("Information C").
2. Information A led to the Tribunal's Finding 1; Information B and C led to the Tribunal's Finding 2.

1. Mr Singh conceded that Information A was given or caused to be given by the applicant to the Minister, an officer, and the Tribunal. Accordingly, the answers to questions (a) and (b) posed at [17] above are to be answered in the affirmative. However, Mr Singh submits that Information A is not relevant to any of the criteria that the Minister may consider when making a decision on an application.
2. There is no requirement for the applicant to demonstrate any form of past employment in order to be granted a subclass 485 visa. While the application form sought details of the employment history of Mr Singh, this information had no relevance to any the criteria for a subclass 485 visa.
3. Accordingly, Mr Singh submits that question (c) posed at [17] above is to be answered in the negative.
4. Mr Singh submits that it follows that Information A cannot be said to fall within the jurisdictional requirements of clause 4020(1). Hence, the Tribunal erred in finding that Mr Singh did not satisfy clause 4020(1) because of Information A.

1. Mr Singh submits that, in determining whether Information B falls within the jurisdictional requirements of clause 4020, it is necessary to have regard to the fact that the information was provided to TRA and the Tribunal.
2. Mr Singh conceded that Information B was given or caused to be given by him to TRA. Thus, question (a) posed at [17] above is to be answered in the affirmative.
3. However, Mr Singh submits that TRA had not been approved as the relevant assessing authority for the occupation of cook; this issue was not considered by the Tribunal. Mr Singh concedes that the Minister made instrument IMMI 11/034 purporting to specify TRA as the relevant assessing authority for the occupation of cook. However, he submits that that instrument had no effect to the extent that TRA had not been approved in writing by the Education Minister or the Employment Minister as the relevant assessing authority for the occupation of cook, as required by regulation 2.26B(1A)[15].
4. Accordingly, Mr Singh submits that Information B was not given to a relevant assessing authority.
5. Mr Singh submits that it follows that question (b) posed in at [17] above is to be answered in the negative. Information B cannot be said to fall within the jurisdictional requirements of clause 4020(1). Hence, the Tribunal erred in finding that Mr Singh does not satisfy clause 4020(1) with respect to Information B.

1. Mr Singh conceded that Information C was given or caused to be given by him to the Tribunal. Accordingly, questions (a) and (b) posed at [17] above are to be answered in the affirmative. However, Mr Singh submits that Information C was not relevant to any of the criteria that the Minister may consider when making a decision on an application for the same reasons as Information A (see [21]-[24] above). Accordingly, Mr Singh submits that question (c) posed at [17] above ought to be answered in the negative.

1. Mr Singh anticipated that the Minister might contend that Information A and B (insofar as it was given or caused to be given by him to the Tribunal) are relevant to subclause 485.221(1). Mr Singh submits that the Court should reject any such contention.
2. Subclause 485.221(1) requires an applicant to show that their skills for the nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation. It is for the relevant assessing authority to set the standards for which the skills of a person are to be assessed[16].
3. Mr Singh submits that if the Minister were to determine whether the suitable skills assessment outcome provided for subclause 485.221(1) was obtained with information given or caused to be given by Mr Singh that is false or misleading, it should only involve considering information given or caused to be given by him to the relevant assessing authority.
4. Consequently, Mr Singh contends that Information A has no relevance to subclause 485.221(1) as it was information given to the Minister, an officer, and the Tribunal, but not to a relevant assessing authority.
5. Mr Singh submits that Information C is also not relevant. This is because it is a copy of information given to TRA, which, at the relevant time, was not a relevant assessing authority.
6. There is, in Mr Singh's submission, a further consideration. If TRA was not the relevant assessing authority for the occupation of cook, then it must follow that Mr Singh did not have a suitable skills assessment for his nominated occupation. This Mr Singh concedes.
7. Accordingly, Mr Singh anticipated that the Minister might contend that as Mr Singh did not have a suitable skills assessment for his nominated occupation, the application is futile because he was not capable of satisfying the requirement of subclause 485.221(1). Mr Singh submits that the Court should reject any such contention.
8. Mr Singh submits that clause 485.214 and subclause 485.221(1) are ultra vires. An applicant has no power to meet these requirements (and they are not capable of being met) on the basis that the Minister had not validly appointed a relevant assessing authority for the occupation of cook. The situation is said to be similar to that in Dai v Minister for Immigration[17], where the Full Federal Court found that a condition which is incapable of compliance by the visa holder might well be invalid as ultra vires.
9. The Minister concedes that TRA had not been validly specified as the relevant assessing authority for Mr Singh's occupation pursuant to regulation 2.26B(1) of the Migration Regulations at the time of the Tribunal's decision. This is because no approval had been given by either of the relevant Ministers pursuant to regulation 2.26B(1A).
10. The Minister does not submit that the failure properly to specify TRA renders the proceedings futile. This is because TRA has now been specified for the purposes of regulation 2.26B, by a further instrument dated 28 September 2011 which is expressed to apply to visa applications made before 1 July 2010.[18] Prior to the making of this instrument, TRA had been approved by the Minister for Tertiary Education, Skills and Workplace Relations for the purposes of regulation 2.26B(1A).[19]
11. On the basis of this more recent instrument, the Minister accepts that Mr Singh might be able to satisfy the criteria in clauses 485.214 and 485.221(1) of Schedule 2 to the Regulations, if the Tribunal were required to reconsider the matter as a result of its decision being set aside. On that basis, the proceedings do not lack utility, and no issue as to the validity of the relevant visa criteria arises.

Issues relating to the provision of false or misleading information

1. The Minister accepts that, for the purposes of the Tribunal's decision, the applicable provisions in relation to the provision of false or misleading information were the current form of clause 485.224 of Schedule 2 and clause 4020 in Schedule 4 to the Regulations.
2. The information which the Tribunal found to be relevantly false or misleading, so as to lead to a failure to satisfy clause 4020 (and thus clause 485.224), was:
   1. dates of employment set out in Mr Singh's visa application;[20] and
   2. employment reference letters which had been provided to TRA and were also submitted to the Tribunal.[21]
3. The duration of Mr Singh's employment as a cook, and his success or otherwise in that employment, were clearly relevant to any assessment that a relevant assessing authority might make of the suitability of his skills in that profession. Aside from the issue of TRA's status, therefore, the information was, in the Minister's submission, clearly relevant to the obtaining of a skills assessment that would satisfy clause 485.221(1).
4. The Minister submits that the reference in clause 4020(5)(b) to information "relevant to any of the criteria the Minister may consider" should be read as encompassing information that bears on the success or failure of a visa application in this way. Such information is "relevant to" the criteria which the Minister must consider, even if the information itself does not require direct consideration by the Minister. The Minister submits that any other reading of subclause (5)(b) would be inconsistent with the express inclusion, in clause 4020(1), of information given to "a relevant assessing authority" or to "a Medical Officer of the Commonwealth".
5. The Minister submits that the information found to be false by the Tribunal in the present case was therefore false "in a material particular", as defined in clause 4020(5). This is said to be so even though, at the time of the Tribunal's decision, there was no relevant assessing authority in place for the relevant occupation. The Minister submits that the information was relevant to any assessment of Mr Singh's skills as a cook which might be made by such an authority.
6. The Minister also notes that nothing in clause 4020 makes the relevance of information (or the materiality of falsity) dependent on the person or body to whom it has been given. This is understandable given that information provided to the Minister which is relevant to a skills assessment or a medical assessment may be expected to be shared with the relevant expert assessor. Accordingly, in the Minister's submission, if information is false in a material particular (in the sense discussed above), its submission to the Minister or the Tribunal will engage clause 4020.
7. Accordingly, the Minister submits that, even if the provision of false information to TRA did not engage clause 4020 (because TRA was not a "relevant assessing authority" for the purposes of clause 4020(1) at the time), provision of the same information to the Tribunal did engage the provision. So too did the incorrect employment dates contained in the visa application, and thereby provided to the Minister. The Tribunal therefore did not fall into any relevant error by reason of its conclusion that Mr Singh had failed to satisfy clause 4020.
8. At the hearing of this matter on 1 March 2012, I invited the parties to make further written submissions on the relevance of my decision in Brar v Minister for Immigration & Anor.[22] The Minister filed further written submissions on 26 March 2012. In those submissions, the Minister contends that my decision in Brar can be distinguished but notes, in any event, that the Full Federal Court has reversed that decision on appeal, holding that, in light of the purpose of the statutory scheme[23]:
   • A departure which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegations of non compliance does not deprive the decision-maker of jurisdiction under ss.108 and 109.
9. In the present case there was no requirement that a failure to meet public interest criterion 4020, once identified, be related or compared to an alleged breach specified in any notice. The issue canvassed in Brar therefore did not arise. The question was simply whether the criterion had been (or needed to be) met; and, for reasons outlined in his earlier submissions, the Minister submits that the Tribunal was entitled to find that it had not been met.
10. Mr Singh did not make any further submissions.

1. The purpose of subclass 485 visas are to enable overseas students in Australia who have skills in demand in Australia and who have recently completed either a degree, or a diploma or who have trade qualifications, but who cannot meet the requirements for the grant of a permanent or provisional General Skilled Migration visa, to spend up to 18 months in Australia to build on their skills set.[24]
2. The Minister's Department decided to refuse the grant of a subclass 485 visa on the basis that Mr Singh did not satisfy clause 485.223 in Schedule 2 to the Regulations[25]. That provision states that:
   • No evidence has become available since the time of application that the information given or used:
     • (a) to meet the requirements of item 1229 of Schedule 1; or
     • (b) to satisfy Subdivision 485.21; or
     • (c) to obtain the skills assessment mentioned in subclause 485.221(1);
   • was false or misleading in a material particular.
3. The Migration Amendment Regulations 2011 (No 1)[26] omitted clause 485.223[27], inserted reference to PIC 4020 in clause 485.224(a)[28] and inserted clause 4020 in Part 1 of Schedule 4 to the Regulations[29]. These amendments commenced on 2 April 2011[30] and apply to the present application[31].
4. Clause 485.224 in Schedule 2 relevantly states that:
   • The applicant:
   • (a) satisfies public interest criteria ... 4020; and
5. Clause 4020 in Part 1 of Schedule 4 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; 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 the application;

• the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).

(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.

...

(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.

1. Regulation 1.03 relevantly provides that relevant assessing authority means a person or body specified under regulation 2.26B.
2. Regulation 2.26B provides:
   • (1) Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:
     • (a) a skilled occupation; and
     • (b) one or more countries;
     • for the purposes of an application for a skills assessment made by a resident of one of those countries.
   • (1A) The Minister must not make an instrument under subregulation (1) unless the person or body has been approved in writing as the relevant assessing authority for the occupation by:
     • (a) the Education Minister; or
     • (b) the Employment Minister.
   • (2) The standards against which the skills of a person are assessed by a relevant assessing authority for a skilled occupation must be the standards set by the relevant assessing authority for the skilled occupation.
3. Regulation 1.03 of the Regulations relevantly provides that Education Minister means the Minister for Education, Science and Training and Employment Minister means the Minister for Employment and Workplace Relations.
4. Clause 485.214 and subclause 485.221(1) in Schedule 2 to the Regulations are relevant to the present application.
5. Clause 485.214 provides:
   • 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.
6. Subclause 485.221(1) provides:
   • 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.
7. The relevant instrument in writing for subregulation 2.26B(1), at the time of the Tribunal decision, was IMMI 11/034. That instrument purports to specify TRA as the relevant assessing authority for the occupation of cook (ASCO 4513-11)[32].
8. In its decision the Tribunal relevantly found at [41] and [42] as follows[33]:
   • Having considered the totality of the evidence before it, the Tribunal has formed the view that the applicant had not been employed at Indioz Café and New Bombay Fusion Restaurant, as claimed. The Tribunal notes that the evidence of his employment is based, predominantly, on the document produced by Indioz and New Bombay Fusion, and that the owner of Indioz admitted that employment documents had been issued in return for payments. That brings into question the authenticity of documents from both restaurants, as well as the applicant's overall credibility. The Tribunal places significant weight on the information provided by the owner of Indioz concerning the issuance of the documents and the fact that he failed to identify the applicant as one of the employees of Indioz. The Tribunal also places significant weight on the fact that the written and oral evidence provided by the applicant concerning the period of his employment is inconsistent with the information he provided in his application form, which also brings into question the veracity of the written materials. For these reasons, the Tribunal finds that the applicant had not been employed at Indioz Café as he claims in the application form and also that he had not been employed at Indioz Café and New Bombay Fusion restaurant as he claims in his subsequent submissions.
   • The Tribunal finds that the applicant gave information about his employment at the Indioz Café in his visa application. The Tribunal finds that the applicant also provided to the Tribunal [an] employment reference which stated that he was employed as a cook at New Bombay Fusion restaurant and at Indioz Café. The Tribunal has found that the applicant had not been employed as a cook at the two establishments for the period claimed and the Tribunal finds such information to be false or misleading in a material particular. The Tribunal finds that there is evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal and a relevant assessing authority, information that is false or misleading in a material particular in relation to the application for the visa. The Tribunal is not satisfied that the applicant meets PIC 4020(1).
9. At the time of the Tribunal decision, as is conceded by the Minister, TRA had no relevant function as it had not been approved as an assessing authority by the Education Minister or the Employment Minister. It had been purportedly specified as a relevant assessing authority by the Minister for Immigration in instrument IMMI 11/034 but that specification was invalid by reason of regulation 2.26B(1A). The position was purportedly rectified by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations by instrument of approval dated 15 September 2011[34] and by the Minister for Immigration by instrument dated 28 September 2011.[35] At the time of application for the visa sought by Mr Singh, the Regulations required, among other things, that the Minister be satisfied that the applicant has applied for an assessment of the applicant's skills or the nominated skilled occupation by a relevant assessing authority.[36] The Regulations further required that, at the time of decision, the skills of the applicant for the applicant's nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation.[37]
10. There is no issue of invalidity in respect of the relevant visa criteria. In their terms, those criteria had no application in Mr Singh's case at the time of the decision by the Tribunal because of the failure of the respective Ministers to lawfully approve and specify a relevant assessing authority. It does not follow, however, that no valid visa decision could be made in respect of Mr Singh's visa application. There were other criteria that Mr Singh needed to satisfy at the time of application and at the time of decision. Among other things, at the time of decision, Mr Singh was required to satisfy criterion 485.224 which specified that he satisfied public interest criterion 4020.
11. Clause 4020(5) specifies that information that is false or misleading in a material particular means information that is false or misleading at the time it is given and 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.
12. The Tribunal found that Mr Singh had given false information about his employment (and hence his work experience) in his visa application and to the Tribunal. The Tribunal found that this information was false or misleading in a material particular, presumably because it bore upon the assessment of his skills for his nominated skills occupation. However, as I have found, the visa criteria applicable at the time of the Tribunal's decision did not include criterion 485.214 or criterion 485.221 because no relevant assessing authority had been lawfully approved or specified for the purposes of those criteria. There was, in my view, at the time of the Tribunal decision, no other visa criteria upon which the allegedly false information could materially bear.
13. Accordingly, I find that the Tribunal was in error in finding that the information provided by Mr Singh was false or misleading in a material particular in relation to his visa application. The Tribunal misunderstood what were the applicable visa criteria because of the failure by the respective Ministers to lawfully approve and specify TRA to enliven those criteria. Those criteria are now operative by reason of the necessary approval and specifications apparently having been given. The instrument signed by the Minister purports to have effect in respect of visa applications made before 1 July 2010 and it was not argued before me that the instrument is invalid by reason of its retrospective operation[38]. I infer, therefore, that Mr Singh would be able to satisfy clause 485.214 of the criteria to be satisfied at the time of application. If the matter is remitted to the Tribunal for further consideration, there will probably be an opportunity for Mr Singh to obtain a further assessment by TRA on the basis of such information as he chooses to provide for the purposes of seeking to satisfy criterion 485.221. In the light of what may occur, the Tribunal can give further consideration to the application of PIC 4020.
14. Mr Singh should receive relief in the form of the constitutional writs of certiorari and mandamus.
15. I will hear the parties as to costs.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Driver FM

[15] Affidavit of David Gu dated 5 December 2011, 22-88

[17] [2007] 165 FCR 485

[18] Instrument IMMI 11/068, clause 2(iii) and (iv) (Exhibit R2)

[19] Instrument of Approval signed 15 September 2011 (exhibit R1)

[22] [2011] FMCA 435

[23] Minister for Immigration v Brar [2012] FCAFC 30 at [61]

[24] Paragraph 1.1 under Introduction in Procedural Advice Manual (PAM) 3, Regulations, Schedule 2 Visa 485 - Skilled - Graduate

[27] Item 5 in Schedule 3 to SL2011 No 13

[28] Item 4 in Schedule 3 to SL2011 No 13

[29] Item 3 in Schedule 3 to SL2011 No 13

[32] Pursuant to subparagraph 2(a)(iii) and schedule 1A

[34] Exhibit R1. No issue was taken before me that the instrument was not signed by either the Education Minister or the Workplace Relations Minister as defined in regulation 1.03

[38] I do not interpret the instrument as purporting to validate an invalid decision of the Tribunal or a delegate made before the instruments were made, which would offend against s.12 of the Legislative Instruments Act 2003 (Cth).