Thind v Minister for Immigration and Border Protection

REASONS FOR JUDGMENT 1 On 9 August 2008, the appellant ("Mr Thind") lodged an application for a Skilled (Residence) (Class VB) visa ("the Visa"). Mr Thind's visa application was rejected by a delegate of the first respondent ("the Minister") and that decision was affirmed by the Migration Review Tribunal ("the Tribunal"). Mr Thind then sought judicial review of the Tribunal's decision before the Federal Circuit Court of Australia. The subject of this appeal is the Federal Circuit Court's judgment which dismissed Mr Thind's application for judicial review. That judgment is published as Thind v Minister for Immigration and Border Protection [2013] FCCA 1438. 2 The task of the Federal Circuit Court in dealing with the judicial review proceedings brought by Mr Thind was to determine whether the Tribunal's decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) ("the Migration Act") and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. 3 The task of this Court on the appeal brought by Mr Thind is to determine whether the judgment of the Federal Circuit Court is affected by appealable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ). 4 The appeal raises for determination whether the Tribunal's finding that Mr Thind failed to meet the requisite criteria provided for by the Migration Regulations 1994 (Cth) ("the Regulations") involved jurisdictional error in the manner I will hereafter identify. 5 By reason of the fact that the primary judge made orders suppressing the names of particular parties, it will be necessary to refer to certain parties in these reasons by an acronym. 6 The delegate of the Minister decided to refuse to grant the Visa to Mr Thind as he did not satisfy the requirements of cl 886.225 of Sch 2 of the Regulations because the delegate found that Mr Thind did not satisfy Public Interest Criterion 4020. As the Tribunal stated, the issue before it was whether Mr Thind met Public Interest Criteria 4020 as required by cl 886.225 for the grant of the Visa. 7 The criteria that Mr Thind needed to satisfy the Tribunal of was relevantly dealt with in cl 886.2 of Sch 2 of the Regulations. It is helpful to set out two provisions within that clause. Clause 886.223(1) provided: The skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant's nominated skilled occupation. Clause 886.225 provided: The applicant (a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021; and (b) if the applicant had turned 18 at the time of application - satisfies public interest criterion 4019. 8 It is also necessary to set out the terms of Public Interest Criterion 4020, which relevantly provided: (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. (4) The Minister may waive the requirements of any or all of paragraphs 1(a) or (b) and subclause (2) if satisfied that: (a) compelling circumstances that affect the interests of Australia; or (b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; justify the granting of the visa. (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. 9 Public Interest Criteria 4020 uses the term "bogus document". That term was relevantly defined in s 97 of the Act as follows: 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. 10 It is helpful to refer to further background facts set out in the Tribunal's reasons. At [46] of its reasons, the Tribunal identified that Mr Thind had nominated the skilled occupation of pastry cook and that he had provided a copy of a skills assessment dated 1 April 2008 from Trades Recognition Australia ("TRA") in support of his application for the Visa. As the Tribunal noted, the TRA assessment confirmed Mr Thind's skills had been assessed by TRA as competent for the occupation of pastry cook. That assessment was based in part on evidence provided by Mr Thind that he had satisfied the requirement to complete 900 hours of relevant work experience. 11 At the request of the Department, Mr Thind provided to the Department a copy of a work reference signed by a person I shall call "TG," who purported to be the owner or manager of a cake shop I shall call "AC". The reference stated that Mr Thind had undertaken work experience at AC as a pastry cook between February 2007 and February 2008 for a period of more than 900 hours. The reference had been used by Mr Thind to support the assessment made by TRA. 12 The findings made by the Tribunal of particular relevance are set out at [53] of the Tribunal's reasons as follows: However, the Tribunal is satisfied that there is evidence establishing that false work references were provided from persons seeking permanent residence in Australia who were claiming to have been employed for 900 hours at [AC] and these were comparable to the work reference provided by the applicant. In the context of this, and extremely limiting supporting evidence establishing that the applicant was employed at [AC], which the Tribunal has found it is reasonable to expect could have been provided, as well as the Tribunal's inability to test the applicant's evidence during a hearing, the Tribunal does not accept that the applicant was employed by [AC] for 900 hours as he has claimed and does not accept that [TG's] statement that he was employed as a Pastry Cook at [AC] is truthful. The Tribunal finds that the skills assessment was obtained because of a false or misleading statement made by [TG] in the work reference in which she stated that that the applicant was employed at [AC] for 900 hours. The Tribunal is, therefore, satisfied that there is evidence that the applicant has given or caused to be given a bogus document to the Minister or an officer, in relation to the application for the visa. The Tribunal finds that the bogus document is the TRA assessment that was provided to the Department in relation to the application for the visa on 9 August 2008. The Tribunal finds that the TRA assessment provided to the Department is bogus because the Tribunal reasonably suspects that it was obtained because of a false or misleading statement (being that made by [TG] in the work reference) as provided by s 97(c) of the Act. Accordingly, the Tribunal finds that there is evidence before the Minister that the applicant has given or caused to be given, to the Minister, or an officer, a bogus document in relation to the application for the visa. The Tribunal finds, therefore, that the applicant does not meet PIC 4020(1).