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Luthra & Ors v Minister for Immigration & Anor [2009] FMCA 170 (10 March 2009)

Last Updated: 12 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LUTHRA & ORS v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Application to review decision of Migration Review Tribunal – skilled visa application – information that educational qualifications claimed in connection with skills assessment application not genuine – scope of clause 880.224 of Schedule 2 to the Migration Regulations.


“CCC” v Minister for Immigration and Multicultural Affairs [2001] FCA 682
Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875
Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz [1992] FCA 71; (1992) 34 FCR 348
SZLPH v Minister for Immigration Citizenship [2008] FCA 744

Applicants:
NALISHA LUTHRA & RAKESH LUTHRA & TASHNA LUTHRA

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
MIGRATION REVIEW TRIBUNAL

File Number:
SYG 1781 of 2008

Judgment of:
Barnes FM

Hearing date:
19 February 2009

Delivered at:
Sydney

Delivered on:
10 March 2009

REPRESENTATION

Solicitors for the Applicants:
Turner Coulson

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) That the application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1781 of 2008

NALISHA LUTHRA & RAKESH LUTHRA & TASHNA LUTHRA

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent


MIGRATION REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Background

  1. This is an application for review of a decision of the Migration Review Tribunal (the Tribunal) signed on 30 May 2008 and handed down on 13 June 2008 affirming a decision of a delegate of the first respondent not to grant the applicants Skilled – Independent Overseas Student (Residence) (Class DD) visas.
  2. The first named applicant (the applicant) is the primary visa applicant. The second applicant is her husband and the third applicant is their daughter.
  3. The applicants applied for Class DD visas on 13 May 2003. Class DD contains one subclass: Subclass 880 (Skilled – Independent Overseas Student). In the application Mrs Luthra nominated “accountant” as her occupation. Under Item 1128CA of Schedule 1 to the Migration Regulations a Class DD visa applicant’s skills must be assessed by an assessing authority as suitable for his or her nominated skilled occupation. The relevant assessing authority for the nominated occupation of accountant is CPA Australia (Gazette Notice GN15, 17 April 2002). Mrs Luthra provided as part of her Class DD visa application a CPA assessment dated 26 September 2000 which stated that her Bachelor of Commerce and Master of Commerce from the University of Delhi were assessed as comparable to Australian tertiary qualifications.
  4. Mrs Luthra had applied for the CPA Australia assessment on 1 May 2000. In the assessment application she listed her qualifications as a Bachelor of Commerce (Pass) from Delhi University completed in 1994 and a Master of Commerce from Delhi University completed in 1996. She provided copies of the M.Com and a Statement of Marks Certificate as well as a provisional results certificate.
  5. She initially applied for a Subclass 136 Skilled – Independent visa on 11 December 2000 on the basis of this assessment. However on 26 August 2002 the Department of Immigration received a letter dated 14 August 2002 from the Assistant Controller of Examinations, University of Delhi which verified Mrs Luthra's Bachelor of Commerce, but continued: "Further, it is verified from the records of the University that Nalisha Dua [the former name of the applicant] has not passed M.Com. Examination in 1996 under Roll No. 26712 [as appeared on the copy of the degree provided to CPA Australia]. The photocopy of Degree and marks sheet supplied by you for verification are FAKE and not been issued by the University of Delhi.”
  6. On 7 May 2003 Mrs Luthra withdrew her Subclass 136 visa application prior to a decision being made. On 16 May 2003, she lodged the Class DD visa application that is the subject of the Tribunal decision in issue in these proceedings. In support of her application she provided a copy of the 2000 CPA Australia assessment and copies of documents relating to her qualifications, including a degree certificate for a University of Delhi Master of Commerce 1996 awarded on 1 March 1997, a Statement of Marks Certificate for Part II of the M. Com and a résumé which included reference to a Master of Commerce and a Bachelor of Commerce from the University of Delhi.
  7. The application was refused by a delegate of the first respondent on 10 February 2004 on the basis that the applicant did not meet the requirements of clause 880.224 of Schedule 2 to the Migration Regulations which at that time stated:
  8. The delegate stated that checks had confirmed that the Master of Commerce Mrs Luthra had used to obtain a favourable assessment was not genuine. The delegate found that the use of this fraudulent certificate was false or misleading in a material particular.
  9. The applicants sought review by the Tribunal. The Tribunal as originally constituted affirmed the delegate's decision. The applicants sought judicial review and by orders made by consent by this Court the matter was remitted to the Tribunal on 25 January 2007.
  10. On 17 April 2007 CPA Australia provided to the Tribunal copies of Mrs Luthra's overseas assessment application lodged on 1 May 2000 and the supporting documents and correspondence.
  11. On 18 April 2007 the Tribunal wrote to the applicant pursuant to s.359A of the Migration Act 1958 (Cth) putting to her the information she had provided to the Department in connection with her two visa applications, the documents provided to CPA Australia and the contents of the letter of 14 August 2002 from the Assistant Controller of Examinations, University of Delhi. It sought her comment on information indicating that the Master of Commerce Degree and the statement of marks provided by her to CPA Australia to obtain a favourable assessment were false and misleading and advised that if the Tribunal made such a finding it may find that she did not meet the criteria for the grant of a Subclass 880 visa, in particular clause 880.224 of Schedule 2 to the Migration Regulations.
  12. An extension of time to reply was sought as the applicant was appointing a new migration agent. On 14 May 2007 that agent advised that roll number 171576 referred to in part of the s.359A letter was not the roll number for the applicant’s M.Com. The adviser provided a copy of a letter from Mrs Luthra to the University of Delhi stating that she had completed her M.Com under roll number 26712 in 1996, that she had been advised that roll numbers 26710 to 26720 were “missing” and requesting certification in this regard.
  13. On 30 May 2007 the Tribunal sent a fresh s.395A letter to the applicant’s new migration agent (with references to roll no. 26712 for the M.Com). The letter repeated the substance of the earlier letter but also referred to the fact that in October 2003, after the Subclass 880 visa application was lodged, a Departmental officer found a case note in computer records in relation to Mrs Luthra’s earlier Subclass 136 application that indicated that she had submitted fraudulent qualifications as part of that application. The Tribunal advised that in 2003 further details were sought and obtained by the Department from the visa officer at the Australian Consulate, Mumbai, India, consisting of a copy of case notes stating that the reply from the University of Delhi was that the M.Com certificate supplied by Mrs Luthra was “FAKE and [had] not been issued by the University.” A copy of the letter dated 14 August 2002 from the University of Delhi was provided to the applicant’s representative.
  14. Mrs Luthra’s representative responded on 15 June 2007 disputing the authenticity of the “purported” letter dated 14 August 2002 from the University of Delhi. The applicant’s husband, Mr Luthra, was said to have approached the University of Delhi and to have been advised that a number of folios in the student rolls were missing. The representative provided a copy of a University of Delhi Application for Supply of Marks Statement in relation to Mrs Luthra annotated “record of the student not found.”
  15. It was further submitted that the 2002 letter from the University of Delhi was received by the Department in August 2002, which was prior to the visa applicant's Subclass 880 visa application, and that as that evidence became available before the visa application in issue was lodged it was not caught by clause 880.224 and was not relevant to the review.
  16. The migration agent sought time to obtain certification of the “missing folios”. Time was allowed. The Tribunal requested receipt of such “written certification” by 24 August 2007. At that time the agent advised that no such documents existed.
  17. The adult applicants attended a Tribunal hearing on 24 October 2007. In its reasons for decision the Tribunal recorded that in the hearing the applicant's husband gave evidence about his visit to the University of Delhi. The Tribunal raised the possibility of a Departmental officer conducting a site visit to try to locate the rolls and find out if any were missing.
  18. On 1 December 2007 the Tribunal (with the applicant’s authority) sent an email request to the principal migration officer at the Australian Consulate in Mumbai referring to the delegate's decision, clause 880.224, the August 2002 letter from the University of Delhi, Mr Luthra’s statement that he had been to the University of Delhi to find the rolls and discovered that roll numbers 26710 to 26720 were missing and the fact that Mrs Luthra had unsuccessfully sought an explanation from the University. The Tribunal asked if someone from the office in Mumbai could assist the Tribunal by visiting the university "to inspect the rolls and verify whether or not the roll numbers as stated above are missing".
  19. The Tribunal received a response on 19 March 2008 advising that a senior visa officer and a local staff member had visited the University of Delhi and met with the Degree Section Head. Both Ms Luthra’s degree certificates were taken on the visit. The Section Head had stated on seeing the Master of Commerce degree certificate that it was "non-genuine". He advised that all degree certificates issued by the University had the initial of an administrative staff member just below the Registrar's name on the bottom left-hand corner of the certificate and that this was missing from the applicant's Master of Commerce certificate, indicating that it was fraudulent. He also described the copy of the mark sheet provided by Mrs Luthra for this degree as "strange" as the date was not written on the bottom left-hand side of the mark sheet.
  20. The response recorded that the Degree Section Head's assistant provided copies of a book for 1996 which had the results for students filed according to roll number. He stated that the records for roll number 26710 were available and that the next roll number available was 26720 [the applicant's roll number was shown as 26712 on the degree certificate she submitted]. When questioned about this, the Section Head stated that the "missing roll numbers" were not recorded “as these candidates had either not taken the exams or had failed in their exams and that the register "only recorded the details of roll numbers for candidates who had passed their exams".
  21. This information was put to the applicant for comment in a letter date 26 March 2008 issued pursuant to s.359A of the Migration Act. The applicant's advisor responded that clause 880.224 only related to information that became known once the relevant skills assessment was completed. It was submitted that: “In this case, the relevant information, being that the Masters degree was not genuine, became known at the time of a previous visa application, well before the relevant skills assessment was even applied for (sic) much less completed (sic)”, and that therefore the information was “not caught by clause 880.224”. It was also suggested that it was “strange” that a sequence of ten consecutive roll numbers were missing from the University records. This was said to seem to “cast some question over the veracity of the information” given to the Departmental officer.

Tribunal decision

  1. On 30 May 2008 the Tribunal affirmed the decision of the delegate not to grant the applicants Class DD visas.
  2. In its reasons for decision the Tribunal set out the background to these proceedings and the criteria for a Subclass 880 visa, including the requirement in clause 880.224 which, as it stood at the time of the decision, was as follows: "No evidence has become available since the time of application that the information given to satisfy Sub-Division 880.21, or to meet the requirements of Item 1128CA of Schedule 1, was false or misleading in a material particular."
  3. The Tribunal stated that the issue in dispute was whether evidence had become available since the time of the visa application that the information given or used as part of the skills assessment referred to in Item 1128CA(3)(k) of Schedule 1 to the Migration Regulations was false or misleading in a material particular. Relevantly, at the time of the applicants’ Class DD application, Item 1128CA which contains the requirements for a Skilled – Independent Overseas Student (Residence) (Class DD) visa, specified in para.1128CA(3)(k) that:

Application by an applicant seeking to satisfy the primary criteria must be accompanied by satisfactory evidence that a relevant assessing authority has assessed the skills of the applicant as suitable for his or her nominated skilled occupation.

  1. The Tribunal recorded that the applicant's nominated skilled occupation was accountant and the relevant assessing authority was CPA Australia (Gazette Notice GN 15, 17 April 2002). It found that in order to determine whether Mrs Luthra satisfied the criterion in clause 880.224 it was restricted to information that had been given or used as part of the 26 September 2000 assessment by CPA Australia in assessing her skills for her nominated skilled occupation. It referred to the information provided to it by CPA Australia, including the documents provided to CPA Australia by the visa applicant such as the copy Master of Commerce degree, Provisional Certificate and statement of marks.
  2. The Tribunal referred to the results of the site visit of 14 March 2008 and the applicant's representative's submission that it was “strange” that there were ten consecutive roll numbers missing. The Tribunal found that this submission was answered by the University of Delhi, Degree Section Head's statement that the missing roll numbers were not recorded, as those candidates had either not taken the exams or had failed in their exams and the register only recorded the details of roll numbers for candidates who had passed their exams.
  3. On this evidence the Tribunal found that the degree certificate for the Master of Commerce 1996 said to have been awarded to Mrs Luthra on 1 March 1997 by the University of Delhi and the statement of marks for the Master of Commerce were “fraudulent and, therefore, false.” It also found that these documents were misleading “as they indicate that the visa applicant has an educational qualification that she does not have.”
  4. The Tribunal acknowledged that it had to determine “if that inaccuracy given and used for a skilled assessment by CPA Australia was false or misleading in a material particular". It referred to the statement by the Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz [1992] FCA 71; (1992) 34 FCR 348 at 352 that:
  5. The Tribunal found that what was "relevant, that is material" to CPA Australia when it assessed the applicant's nominated skilled occupation was her educational qualifications. As one of those educational qualifications had been found to be false, it found that the Master of Commerce degree certificate and the statement of marks in relation to the Master of Commerce was “information given and used as part of the skills assessment referred to in item 1128CA(3)(k) of Schedule 1, and that information is false or misleading in a material particular.”
  6. The Tribunal addressed the issue of whether the evidence had become available since the time of application. It considered the applicant’s submission that the fact that the degree certificate for the Master of Commerce was false had been known before the Subclass 880 visa application was lodged and hence that the “relevant information” that the M.Com. degree was not genuine was known at the time of the visa application and thus was not within clause 880.224 as follows:

However, the wording of the clause is not relevant information but is that no evidence has become available since the time of application. In the circumstances of this review there is evidence that has become available since the visa application was made 13 May 2007 (sic) that is the evidence from the Section Head of the University of Delhi which arose from the site visit by Departmental officers on 14 March 2008. Therefore, the Tribunal finds that there is evidence that has become available since the time of application that the information given or used as part of the assessment referred to in paragraph 1128CA(3)(k) of Schedule 1 is false or misleading in a material particular.

  1. In light of these findings, the Tribunal found that the visa applicant did not meet the criteria in clause 880.224 and affirmed the decision of the delegate not to grant the applicants Class DD visas.

This application

  1. The applicants sought review by application filed in this Court on 10 July 2008. The application contains one ground of review which is that the Tribunal “misapplied the law to the facts as found.” The particulars are as follows:
    1. The Tribunal affirmed the decision based on its finding that information had become available since the Applicants (sic) skills assessment, that the assessment was based on information that was false or misleading in a material particular.
    2. The information was that the Applicants (sic) Master of Commerce degree from the University of Delhi was not genuine.
    1. That information became available to the First Respondent on or about 22 August 2002 which was before the Applicant applied for a Skills Assessment (sic).
    1. The information was, therefore, not caught by the provisions of clause 880.224 of Schedule 2 to the Migration Regulations.
  2. The solicitor for the applicants conceded in oral submissions that the references in the particulars and in his written submissions to whether information became available before or after the applicant's Skills Assessment should have been a reference to the time of the visa application (that is, 13 May 2003) and that this was the time in issue in clause 880.224 of Schedule 2 to the Migration Regulations.
  3. I note first that while the Tribunal appreciated that the relevant date was the date of the subclass 880 visa application, that date (13 May 2003) appears as 13 May 2007 in the Tribunal findings and reasons. This is clearly a typographical error. No issue was taken by the applicants with the reference to 2007 instead of 2003 (and see “CCC” v Minister for Immigration and Multicultural Affairs [2001] FCA 682, Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 and SZLPH v Minister for Immigration Citizenship [2008] FCA 744).
  4. The applicants submitted that the information obtained from the University of Delhi through the 2008 site visit and report was simply information that was sought and obtained to verify the earlier evidence provided to the Department in 2002 that Mrs Luthra had not passed a Master of Commerce examination in 1996 under Roll Number 26712 and that the photocopy of the degree and marks sheet supplied for verification were fake and had not been issued by the University of Delhi. On this basis it was submitted that the information that the Certificates were fake and that the applicant had not been awarded a Master of Commerce from the University of Delhi was not evidence that had become available since the time of the visa application.
  5. It was also contended that as the falsity of the applicant's Master of Commerce certificate and claim to have such a degree had been made known to the Department in 2002 there was no evidence that had become available since the time of the visa application (in 2003) under clause 880.224 that was false or misleading in a material particular. It was submitted that the 2008 information from the site visit was only a confirmation of this evidence.
  6. I am not persuaded by the applicants’ contentions. As submitted for the first respondent, the information obtained from the Degree Section Head of the University of Delhi in the 2008 site visit was "evidence" for the purposes of clause 880.224, being information obtained in the form of a document recording the results of the 2008 site visit to the University in relation to the applicant's claims to have a Master's Degree as well as her claims about the roll numbers being missing.
  7. In that respect it is important to note that clause 880.224 of Schedule 2 focuses on information "given" to satisfy the requirements of Item 1128CA(3)(k), which at the relevant time required the visa application to be accompanied by evidence that a relevant assessing authority had assessed the skills of the applicant as suitable for his or her nominated skilled occupation.
  8. The report of the site visit undertaken on 14 March 2008 was evidence that tended to establish to the Tribunal's satisfaction that information given by the applicant to CPA Australia, including her claim to have a Master of Commerce, the copy of the degree and the other documents provided for the purposes of its assessment of her qualifications under Item 1128CA of Schedule 1 (in particular, Item 1128CA(3)(k) as it stood at the relevant time), was false or misleading in a material particular. This information was evidence that had become available since the time of Mrs Luthra’s application for a subclass 880 visa. It has not been established that the Tribunal erred in applying the law to the facts in finding that this information was within clause 880.224 of Schedule 2 to the Migration Regulations.
  9. Hence it is not necessary to determine whether, had there been no evidence other than the Department’s discovery in 2003 of a case note on its computer records indicating that fraudulent educational qualifications had been submitted by the applicant as part of the assessment of her qualifications obtained in connection with the earlier Subclass 136 application, that would have been outside clause 880.224. In my view, even if the applicant was correct in contending that the Department already had the 2002 information so that that evidence (the 2002 letter from the University of Delhi) did not “become available” after the 2003 Subclass 880 visa application, the information the Tribunal obtained from the University of Delhi site report from the Australian consulate in 2008, whether regarded as “verification” or as also providing additional information, was within clause 880.224. It was evidence that became available since the time of visa application that the information the applicant gave to obtain the assessment of her educational qualifications by CPA Australia was false or misleading within clause 880.224. The fact that the Department had received other evidence before the visa application in issue relevant to the falsity of the claimed qualifications does not mean that subsequent evidence that became available to the Department or to the Tribunal that confirmed that the claimed qualifications were false was “outside” clause 880.224. As the Tribunal recognised, clause 880.224 refers to “no evidence” having become available. Corroborative evidence or verification of the falsity of information given by an applicant is “evidence” that becomes available for the purposes of clause 880.224 even if there was also some evidence to that effect “available” to the Department before the time of the visa application.
  10. Such an interpretation is consistent with the purpose apparent in the criteria for a Subclass DD visa that claimed relevant qualifications and skills are both possessed by a visa applicant and assessed as suitable for the nominated skilled occupation in Australia.
  11. In any event, the evidence that become available as a result of the 2008 site visit was not simply verification of the 2002 information provided to the Department. The Tribunal asked the principal migration officer at the Australian Consulate in Mumbai to assist by arranging a visit to the University of Delhi to inspect the rolls and verify whether or not the roll numbers were missing, as had been claimed to the Tribunal during the Tribunal hearing. The further investigations conducted in India were as a result of the issue raised by the visa applicant and her adviser disputing the authenticity of the 2002 letter from the University and the claims by the applicant's spouse about missing rolls. Those investigations resulted in new evidence, in particular in relation to "the missing roll numbers”. There was evidence as a result of the site visit that such numbers were not missing, as the register only recorded details of roll numbers for candidates who had passed their exams
  12. The applicant also submitted that this information was not false or misleading in a material particular. It was contended that current assessment guidelines in relation to qualifications awarded by the University of Delhi indicated that a Bachelor's Degree was comparable to an Australian Bachelor’s Degree and that hence that information about a Master's Degree was not in fact material to the assessment of skills by CPA Australia.
  13. In support of this argument the applicant tendered and sought to rely on material from an Australian Government website accessed on 25 September 2008 in relation to the comparable value of qualifications awarded by higher education authorities in India assessed at face value.
  14. The parties agreed that the approach taken by the Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Dela Cruz [1992] FCA 71; (1992) 34 FCR 348 was applicable in relation to the concept "in a material particular". The Tribunal followed this approach. In that case what was in issue was the fact that in a visitor visa application form and an incoming passenger card, Mr Dela Cruz had stated that his marital status was "now married" when in fact he was not and had never been married. Section 20 of the Migration Act as it stood at the relevant time, had the effect that a person who made a statement or provided information in a visa application or passenger card that was "false or misleading in a material particular" was an illegal entrant.
  15. The trial judge had held that the question of marital status was not material in relation either to the granting of a visitor visa or of a temporary entry permit. On appeal the Full Court made the statement set out by the Tribunal in its reasons for decision that:
  16. Importantly their Honours continued in Dela Cruz at 352 that:
  17. The Full Court found that the statement about marital status conveyed a false or misleading impression of the person or of his or her circumstances and was false or misleading in a material particular. It rejected the view of the trial judge that the statement was not false or misleading in a material particular because marital status was not material to the decisions to grant a visitor visa and temporary entry permit. Their Honours stated at 353:
  18. Hence their Honours rejected an argument that it was necessary to consider whether the immigration officer turned his mind to the statement about marital status or whether, if he did, he thought it necessary to seek further information from or about the applicant. Critically the Full Court stated at 354:
  19. Similarly in this case the claimed qualification of a Master of Commerce Degree was a relevant fact concerning a significant aspect of Mrs Luthra's claimed qualifications which were inquired about and disclosed in her application for skills assessment which formed part of the information provided in connection with the visa application. The applicant herself gave information to CPA Australia in relation to both her Bachelor of Commerce Degree and the claimed Master of Commerce Degree in connection with her application for an assessment of her qualifications. It was open to the Tribunal to find that the information about the Master of Commerce degree was false in a material particular, relating, as it did, to whether or not the applicant in fact had that qualification. Whether or not she had that qualification was relevant to the purpose for which the information was given in that it may be taken into account in the assessment of skills which formed part of the prerequisites for the class of visa for which the applicant applied and hence maybe taken into account in the decision in relation to skills assessment and as a consequence the decision under the Act as to the grant of the visa.
  20. The applicant’s assessed qualifications were a relevant fact. The Tribunal found that the degree certificate for the Master of Commerce and the statement of marks for the Master of Commerce were fraudulent and therefore false and that the documents were misleading as they indicated that the visa applicant had an educational qualification that she did not have.
  21. Whether or not the applicant needed to have a Master's degree in addition to a Bachelor’s degree as a necessary qualification to obtain the skills assessment she sought was not determinative of whether the information that she had a Master's degree was false or misleading in a material particular. What was relevant was that the applicant relied on the claimed Master of Commerce degree in seeking the assessment of qualifications required in connection with the visa application. The materiality of the falsity of the document is apparent. It was relevant to the assessment of the document which was part of the qualifications the applicant sought to have assessed. I also note that there is no suggestion in the material before the Court that CPA Australia did not use the information in relation to the claimed Master of Commerce degree as part of the applicant’s skills assessment. It engaged in correspondence with the applicant in relation to that aspect of her claimed qualifications and the assessment stated that her Bachelor and Master of Commerce were assessed as comparable to Australia tertiary qualifications.
  22. It has not been established that the Tribunal misapplied the law to the facts as found in the findings that it made in relation to clause 880.224 of Schedule 2 to the Migration Regulations or otherwise.
  23. Finally, I note that the issue that the applicant now raises in relation to the meaning of "in a material particular" was not expressly put to the Tribunal. The fact that it was not dealt with in those terms is not such as to indicate any oversight or error constituting a jurisdictional error on the part of the Tribunal.
  24. As no jurisdictional error has been established, the application must be dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Barnes FM


Associate:


Date: 10 March 2009

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