Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-04-27|Before: Wigney J

The appeal be dismissed.
The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WIGNEY J: 1 The appellant, Mr Avtar Singh, is a citizen of India. He first arrived in Australia on a student visa in December 2005. In July 2009, he applied for a provisional skilled work visa based on his supposed skill and experience as a motor mechanic. That visa application was refused in August 2012 by a delegate of the first respondent, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. After a tortuous series of administrative review applications, judicial review applications and appeals, on 22 September 2020 a judge in the Federal Circuit Court of Australia dismissed Mr Singh's application for judicial review of a decision by the Administrative Appeals Tribunal to affirm the delegate's decision: Singh v Minister for Immigration & Anor [2020] FCCA 2677 (Judgment). Mr Singh appealed the Judgment. 2 For the reasons that follow, Mr Singh's appeal must be dismissed with costs.

PUBLIC INTEREST CRITERION 4020 5 The delegate's decision to refuse Mr Singh's visa application and the Tribunal's decision to affirm that decision hinged on the application of a visa criterion which is known as public interest criterion 4020 (PIC 4020). There was, and is, no dispute that Mr Singh was required to meet that criterion if his visa application was to be granted. At the relevant time, subsections (1), (3) and (5) of PIC 4020, which was in Sch 4 Pt 1 of the Migration Regulations 1994 (Cth), relevantly provided as follows: (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5‑reviewable decision, 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. … (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. 6 The expression "bogus document" was defined in s 5(1) of the Migration Act 1958 (Cth) in the following terms: bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that: (a) purports to have been, but was not, issued in respect of the person; or (b) is counterfeit or has been altered by a person who does not have authority to do so; or (c) was obtained because of a false or misleading statement, whether or not made knowingly.

The Tribunal's decision ON REMITTER 7 The Tribunal found that Mr Singh did not meet the requirements of PIC 4020(1) because it could not be satisfied that there was "no evidence that [Mr Singh] has given, or caused to be given, to the Minister, or an Officer of the Department, the Tribunal or a relevant assessing authority a 'bogus document' in relation to his application" for a visa: Statement of Decision and Reasons dated 5 December 2019 at [96]. The basis of that finding was explained at length by the Tribunal: Reasons at [72]-[97]. 8 In summary, in the course of applying for his visa, Mr Singh provided a work reference to both Trades Recognition Australia (TRA - a "relevant assessing authority" as defined in reg 1.03 of the Regulations) and the Department: Reasons at [7]. That work reference was supposedly authored by Mr Frank Boussounis, who was said to be the owner and head mechanic at "Alway Automotive", as spelt in that reference and on Mr Singh's visa application: Reasons at [8]. It certified that Mr Singh had obtained more than 940 hours of unpaid work experience as a motor mechanic. 9 The problem for Mr Singh was that the Department, and in due course the Tribunal, came into possession of evidence which indicated that the work reference had been fraudulently produced or procured: Reasons at [76]-[79], [86]-[89]. That evidence was, in summary, that in 2011, a person identified in the Reasons as Carmine Amarante (CA) had pleaded guilty to, and been convicted of, an offence which concerned his provision of assistance to skilled visa applicants which involved the provision of fraudulent documentation, including false work references. That conduct occurred between November 2006 and September 2009. CA admitted that he procured business owners to provide false work references to support visa applicants in return for which he paid them a sum of money. One of the business owners who CA implicated in this fraudulent activity was Mr Boussounis of Alway Automotive. Officers of the Australian Federal Police seized a number of documents during the course of the investigation of CA's activities. The documents seized included a copy of the work reference from Mr Boussounis that Mr Singh had provided to the Department and TRA. 10 There was, and is, no dispute that Mr Singh was notified of the substance and effect of this evidence before the delegate's decision and before, during and after his two hearings in the Tribunal: Reasons at [9], [12], [15], [19]-[20], [49]-[51], [58]. He responded to that notification in various ways, including by giving and adducing evidence from witnesses before the Tribunal: Reasons at [52]-[57]. 11 The Tribunal addressed the requirements of PIC 4020(1) and analysed the evidence that was before it which was relevant to whether Mr Singh had met those requirements: Reasons at [70]-[75], [77]-[92]. The Tribunal found that the evidence before it established or was "indicative of the fact" that work reference that Mr Singh had provided to TRA and the Department was a bogus document as defined in s 5(1) of the Act: Reasons at [94]-[95]. It was on that basis that the Tribunal found that Mr Singh had not met PIC 4020(1) by virtue of PIC 4020(1)(a): Reasons at [97]. The Tribunal was not satisfied that Mr Singh's circumstances were such as to justify the waiver of PIC 4020(1): Reasons at [98]-[113], citing Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235; [2017] FCAFC 184 and Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173; [2015] HCA 50. The issue concerning waiver of PIC 4020 was not raised before the primary judge and does not arise on appeal.

The judgment of the primary judge 12 Mr Singh was not legally represented in the Circuit Court. His application for judicial review as filed contained 11 grounds of review. Mr Singh did not file any written submissions or evidence in support of his application, other than an affidavit merely annexing records of various decisions made by Australian authorities, tribunals and courts in relation to his visa application. Having heard Mr Singh's submissions, the primary judge distilled Mr Singh's grounds of review into two contentions: first, that the Tribunal came to an illogical decision in finding that the documents were "bogus" or there was "no evidence" that the document relied on by the Tribunal was, in fact, bogus; and second, that the Tribunal imposed an unfair burden or onus on him that required him to "prove" that the documents were genuine: Judgment at [63]. It would appear from Mr Singh's notice of appeal in this Court that he accepts that those two grounds were an accurate distillation of his arguments. 13 The primary judge rejected both of Mr Singh's contentions. 14 As for Mr Singh's contention that the Tribunal's finding that the work reference he had provided was a bogus document was illogical or unsupported by any evidence, the primary judge first noted that the Tribunal was "not required to positively find or determine that a particular document is bogus", but rather "need only hold a reasonable suspicion": Judgment at [69]. His Honour referred, in that context, to the judgment of the Full Court in Gill v Minister for Immigration and Border Protection (2017) 250 FCR 309; [2017] FCAFC 51, which established (at [90]-[92]) that the requirement of reasonable suspicion required no more than that there be sufficient evidence to induce suspicion in a reasonable person. His Honour then identified the evidence that was before the Tribunal that the work reference was bogus (Judgment at [71]) and the evidence that Mr Singh relied on to rebut that evidence (Judgment at [72]) and noted that the Tribunal had determined that the evidence relied on by Mr Singh did not "outweigh or remove the suspicions that the Tribunal had - suspicions which arose on the other materials that were before it": Judgment at [73]. 15 The primary judge concluded as follows in relation to Mr Singh's contention that the Tribunal's conclusion in that regard was illogical or unsupported by any evidence (Judgment at [74]): While the applicant may not agree with the Tribunal's conclusions in this regard, there was clearly evidence before the Tribunal that would allow it to "reasonably suspect" that the skills assessment from TRA was obtained because of a "false or misleading statement" from Mr 'FB' at Always Automotive. In the circumstances, it was entirely logical for the Tribunal, on all of the materials before it, to hold a reasonable suspicion that the reference letter was fraudulent. The Tribunal's reasons for finding that the applicant's "rebutting" evidence was not sufficiently probative was entirely sound. 16 His Honour also concluded that the "investigative material" that was before the Tribunal was "clearly probative" as to whether the work reference was "likely to be attenuated by fraud" (Judgment at [75]) and that it could not be said that "no decision-maker could not have held a 'reasonable suspicion' that the letter from Always Automotive [sic] was not genuine": Judgment at [78]. 17 The primary judge also rejected Mr Singh's contention that the Tribunal had imposed an unfair burden or onus on him which required him to prove that the work reference was genuine. His Honour cited, in response to that contention, the decision of the High Court in Abebe v Commonwealth (1999) 197 CLR 510 as establishing that "it is for the applicant to supply the relevant facts and evidence in support of their case to meet the relevant visa criterion" (Judgment at [81]) and that "[i]t was, and remains, an applicant's responsibility to satisfy the Tribunal that they should be granted the visa" (Judgment at [84]). The import of his Honour's reasoning appeared to be to affirm that Mr Singh was required to satisfy the Tribunal that he met PIC 4020, which effectively required him to establish that there was no evidence that he had given, or caused to be given, a bogus document to any of the persons or bodies referred to in PIC 4020(1). 18 The primary judge also rejected Mr Singh's contention that the burden cast on him was "unfair": Judgment at [84]. His Honour noted, in that context, that the Tribunal had acknowledged the difficulties that Mr Singh had faced given that he claimed to have worked at Alway Automotive as long ago as 2008 or 2009 and that the business had since closed: Judgment at [86]-[88]. The Tribunal had, however, also noted in that context that Mr Singh had been invited to comment on the relevant information from as early as 2011. His Honour concluded that while the time between his claimed employment at Alway Automotive and the Tribunal's decision may have been lengthy, he had not been "deprived" of procedural fairness or a "real and meaningful opportunity to present evidence and arguments": Judgment at [88].

GROUNDs OF APPEAL AND SUBMISSIONS 19 The appellant's grounds of appeal contained two grounds in the following terms: 1. The Tribunal came to an illogical decision in finding that the documents were bogus or that there was no evidence that the document relied on by the Tribunal was in fact bogus. 2. The Tribunal imposed an unfair burden/onus on the applicant that required him to prove that the documents were genuine. 20 It may be noted that the two grounds refer to alleged errors by the Tribunal and do not engage at all with the judgment or reasons of the primary judge. They may, however, be read as essentially challenging the primary judge's rejection of the two grounds of review that his Honour had distilled from Mr Singh's review grounds and submissions. 21 Mr Singh also filed a supplementary notice of appeal. That notice, which appears to have been prepared and certified by a solicitor, contained an additional ground of appeal. That ground was that the primary judge erred in failing to find that the Tribunal's decision was "affected by jurisdictional error" because the Tribunal "failed to consider important evidence and submissions". The important evidence was said to be that there were three different versions of the relevant work reference and Mr Singh's evidence that the original work reference was handed to him by Mr Boussounis. The important submission was said to be a submission that had been made to Tribunal by Mr Singh's migration agent to the effect that the work reference provided to Mr Singh was genuine, but that CA had subsequently based the fraudulent work references on his genuine reference. 22 The additional ground of appeal raises an argument which does not appear to have been raised before the primary judge. As such, he requires the Court's leave to rely on it. The Minister opposed the grant of leave. 23 Mr Singh did not file any written submissions in support of his appeal, despite having been ordered by the Court to do so. 24 Mr Singh was not legally represented at the hearing. When invited to make submissions in support of his appeal grounds he simply stated that he wanted the Court to review his case and give its decision.

LEAVE TO RAISE THE new GROUND OF APPEAL 25 Leave to raise that new ground is unjustified and inappropriate for at least four reasons. 26 First, Mr Singh made no attempt to explain or justify the fact that he did not raise the arguments referred to in this ground before the primary judge. Appellants should not be readily permitted to raise arguments on appeal in this Court in the absence of any reasonable justification lest the proceeding before the primary judge should come to be seen as "little more than a preliminary skirmish", particularly in circumstances where the statutory scheme for migration appeals is that review applications are to be made in the Circuit Court, not this Court: Coulton v Holcombe (1986) 162 CLR 1 at 7; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [47]-[48]; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [31]; BXT17 v Minister for Home Affairs [2021] FCAFC 9 at [21]-[24]. 27 Second, while Mr Singh was unrepresented, both in the Circuit Court and at the hearing of his appeal, the new ground was formulated by a solicitor. It is unclear why that solicitor was not retained for the hearing in the Circuit Court and no longer appeared for Mr Singh. It may be inferred that the solicitor trawled through all the material and picked out a few aspects of the evidence or submissions that, perhaps not surprisingly, did not feature prominently, or at all, in the review by the Tribunal, or the proceeding in the Circuit Court, and conjured up an argument on that basis. The solicitor then ceased to act. Such a practice is not to be encouraged. 28 Third, Mr Singh did not file any written submissions as he was ordered to do, if unrepresented, in direction 5(b) made by a Registrar of this Court on 26 October 2020. If an appellant seeks the Court's indulgence to raise a new argument on appeal, the least the appellant could be expected to do is comply with the Court's orders in relation to written submissions. While it is accepted that Mr Singh is now apparently unrepresented, that is not itself always a reasonable excuse for the failure to comply with the Court's orders. 29 Fourth, to make matters worse, Mr Singh did not make any oral submissions in support of the new ground at the hearing. 30 Fifth, and most importantly, there is no apparent merit in the new ground. Indeed, it appears to involve manifestly weak arguments. Even if it is accepted that the Tribunal ignored the fact that there were three different certified copies of the work letter, that could scarcely be called important or material evidence. At most it would tend to suggest that Mr Singh procured a different certified copy of the work reference each time he provided it to a different person or body. It does not appear to bear at all on whether the original work reference was a bogus document. Similarly, the materiality of Mr Singh's evidence that he was handed the original work reference by Mr Boussounis is entirely unclear. It does not detract at all from the fact that there was evidence that the work reference was bogus. The fact that the Tribunal did not specifically refer to this piece of evidence in its reasons does not establish error, let alone jurisdictional error. 31 As for the argument based on the submission apparently made by Mr Singh's migration adviser, it is highly doubtful that it could be said that the Tribunal failed to address or deal with that submission. It is clear that the Tribunal did not accept that Mr Singh had performed the hours of work experience referred to in the work reference and therefore tolerably clear that the Tribunal rejected the evidence and submission to the effect that, while Alway Automotive and Mr Boussounis issued many false work references, the one that they issued to Mr Singh was genuine. Even if the Tribunal's reasons did not explicitly refer to the migration adviser's submission, it does not follow that the Tribunal did not consider or address it, or that it erred jurisdictionally. Indeed, it would appear that the Tribunal's broader findings in effect disposed of the submission which, in any event, appears to have been a very weak and speculative submission. 32 Leave to raise the new argument in support of the appeal is unjustified and unwarranted and is refused.

GROUND ONE - ILLOGICAL FINDING 33 The primary judge was correct to reject Mr Singh's contention that the Tribunal's finding that the work reference was a bogus document and equally correct to reject the contention that there was no evidence that the work reference was in fact a bogus document. Mr Singh failed to articulate any submission, let alone a persuasive submission, to the contrary. 34 An administrative decision which is based on illogical or irrational reasoning or findings may be legally unreasonable and therefore not lawfully made within jurisdiction: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2020] HCA 16 at [129]-[131] (Crennan and Bell JJ); Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [72] (Hayne, Kiefel and Bell JJ); Muggeridge v Minister for Immigration and Border Protection (2017) 255 FCR 81; [2017] FCAFC 200 at [35] (Charlesworth J). 35 Illogicality or irrationality in this context, however, means something more than emphatic disagreement with the reasoning or findings: SZMDS at [129]. If "probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion": SZMDS at [131]. 36 For an administrative decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, "extreme" illogicality or irrationality must generally be shown, "measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions": Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148] (Robertson J). The "critical question" whether an administrative decision is irrational, illogical and not based on findings or inferences of facts supported by logical grounds "should not receive an affirmative answer that is lightly given": SZMDS at [40] (Gummow ACJ and Kiefel J). 37 One curiosity about the Tribunal's decision and reasons is that, despite apparently appreciating that, to satisfy or meet PIC 4020, Mr Singh had to demonstrate that there was no evidence from which it could be reasonably suspected that the work reference had been obtained because of a false or misleading statement, the Tribunal's ultimate finding of fact appears to have gone further. The Tribunal appears to have concluded, in effect, that the evidence before it established that the work reference that Mr Singh gave, or caused to be given, to TRA and the Department was in fact a bogus document. 38 Be that as it may, there is no basis for concluding that the Tribunal's finding to that effect was illogical and no basis for concluding that the finding was unsupported by any evidence. Indeed, the evidence that was before the Tribunal concerning CA's conviction and the admissions he made in that context clearly supported a finding, at the very least, that there were reasonable grounds to suspect that the work reference that Mr Singh gave TRA and the Department had been obtained because of a false or misleading statement by either or both of CA and Mr Boussounis and was therefore a bogus document as defined. There was also a clear and logical basis for finding, in terms of PIC 4020(1), that Mr Singh had failed to demonstrate that there was no evidence before the Tribunal that the work reference that Mr Singh had given to TRA and the Department was a bogus document. There plainly was an abundance of evidence before the Tribunal which was capable of establishing that fact. 39 As the primary judge effectively found, it was entirely logical for the Tribunal, on the basis of the evidence before it, to entertain a reasonable suspicion that the work reference that Mr Singh provided to TRA and the Department was fraudulent, in the sense that it was the product of a false or misleading statement. Mr Singh has failed to establish any error on the part of the primary judge in so concluding. 40 It follows that ground one of Mr Singh's appeal must be rejected.

GROUND TWO - UNFAIR BURDEN OR ONUS 41 The primary judge was correct to reject Mr Singh's contention that the Tribunal imposed on him an unfair or impermissible burden. 42 There could be no doubt that it is for a visa applicant to satisfy the relevant decision-maker, be it the Minister, the Minister's delegate, or the Tribunal on review, that he or she meets the criteria for the relevant visa. It is for the visa applicant to make his or her case; to present whatever information, evidence and submissions he or she is able to present to satisfy the decision-maker that the visa criteria have been met. 43 In Mr Singh's case, it was up to him to present to the Tribunal whatever information, evidence and submissions he was able to present to satisfy the Tribunal that there was no evidence before it that he had given, or caused to be given, to the TRA or the Department, a bogus document. That in effect required him to present information, evidence and submissions to the Tribunal to persuade it that the evidence that was before the Tribunal did not provide a reasonable basis for it to suspect that the work reference he had given to the TRA and the Department was obtained because of a false or misleading statement by CA or Mr Boussounis. That was, in all the circumstances, a particularly tall order given the nature of the evidence that was before the Tribunal. It was not, however, in any sense an unfair or impermissible burden. 44 Nor, importantly, was it a burden that was "imposed" by the Tribunal. It was, if anything, a burden that was imposed by the terms of PIC 4020(1) and the nature of the evidence that was before the Tribunal. 45 Mr Singh failed to advance any submission, let alone a persuasive submission, as to why the primary judge's rejection of his contentions concerning the burden that was imposed on him was erroneous. Ground two of his appeal has not been made out and must be rejected.

CONCLUSION AND DISPOSITION 46 The primary judge was correct to reject Mr Singh's grounds of review and correct to dismiss his review application. Mr Singh has failed to make out his grounds of appeal or demonstrate any error on the part of the primary judge. It follows that his appeal must be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney.

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