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Sethi v Minister for Immigration & Anor [2011] FMCA 27 (27 January 2011)
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Federal Magistrates Court of Australia
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Sethi v Minister for Immigration & Anor [2011] FMCA 27 (27 January 2011)
Last Updated: 2 February 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
SETHI v MINISTER FOR
& ANOR
|
|
MIGRATION – Review of Tribunal’s
decision to affirm cancellation of student visa under s.109 – application
for visa
supported by “bogus” documentation – invitation to
respond said not to have been received by applicant –
invitation sent in
accord with legislative requirements – applicant said to be a victim of
Indian Bank Manager and Indian education
agent – no evidence of fraud
committed on Tribunal – vague suggestion that Minister estopped from
cancelling after issue
of visa in circumstances where the application on proper
examination was manifestly not acceptable – application for review
dismissed. |
|
First Respondent:
|
MINISTER FOR IMMIGRATION & CITIZENSHIP |
|
Second Respondent:
|
MIGRATION REVIEW TRIBUNAL |
|
Hearing date:
|
31 August 2010
|
|
Date of Last Submission:
|
31 August 2010
|
|
Delivered on:
|
27 January 2011
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REPRESENTATION
|
|
In person, assisted by a McKenzie Friend, Mr Ibrahim
|
Counsel for the First Respondent: |
Ms Latif
|
Solicitors for the First Respondent: |
Clayton Utz
|
ORDERS
(1) The application for review filed on 19 March 2010,
as amended on
4 June 2010, is
dismissed.
|
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT
MELBOURNE
|
MLG 400 of
2010
Applicant
And
MINISTER FOR IMMIGRATION &
CITIZENSHIP
|
First Respondent
MIGRATION REVIEW TRIBUNAL
|
Second Respondent
REASONS FOR JUDGMENT
Introduction
- This
matter came before the Court as a review of a decision of the Migration Review
Tribunal (the Tribunal) dated 4 December 2010.
The Tribunal affirmed an earlier
decision of the First Respondent’s delegate to cancel the
Applicant’s student visa
(Subclass 572 Vocational Education and Training
Sector visa) (the visa).
- I
have had the benefit of contentions of fact and law filed by both the Applicant
and the First Respondent, together with submissions
made at the hearing before
me. At the hearing the Applicant acted in person, but had the assistance of a
McKenzie Friend, Mr Ibrahim.
Mr Ibrahim is a migration agent. I was given an
understanding that he assisted the Applicant in the compilation of her
contentions
of fact and law.
Background
- The
Applicant is a citizen of India who, after completing secondary schooling there,
also undertook tertiary studies, the exact nature
of which is uncertain, but was
said to be, as set out in her application for the visa, a certificate of
computer studies and at the
hearing before the Tribunal, to be a Bachelor of
Arts degree from the Punjab University. She sought the visa to undertake
further
studies in Australia. To that end after being granted the visa, she
arrived in Australia on 25 May 2008 and commenced a Diploma of
Hospitality
Management at the Austech Institute in Sydney the following day. She stopped
this course after approximately five weeks
and moved to Melbourne in mid-July
2008. She proposed to undertake further studies in Melbourne at an education
provider named Ozford
College. She never commenced the course there, but she
informed the Tribunal that her intention was to live in Shepparton and travel
to
Melbourne, as required, to attend the course.
- To
obtain the visa she submitted with her application documentation purportedly
from the Punjab National Bank (PNB) confirming a loan
had been provided to her
and that the first instalment of the loan was issued to Austech Institute and
disbursed. This was a necessary
requirement for her to meet the financial
capacity criterion under the visa. It is to be noted that an earlier application
had been
refused on the basis that she did not meet the financial capacity
criterion. However, the second application, which was supported
by letters from
the PNB (the PNB letters), was successful.
- An
officer from the First Respondent wrote to the PNB providing a copy of the PNB
letters and asked whether the first instalment of
the loan had been disbursed.
By a letter dated 16 June 2008 the Chief Manager of the PNB informed, in effect,
that the documents
purportedly from the PNB and submitted in support of the
second application were “fake”.
- Thereafter
followed correspondence by the First Respondent to the Applicant, pursuant to
s.109 of the Migration Act 1958 (the Act), informing the Applicant of her
failure to comply with ss.101, 103 or 105 of the Act. The letter gave
particulars of the non-compliance; including reference to the PNB letters and
the PNB response advising
of the bogus nature of the supportive letters from the
PNB that purportedly confirmed the loan to the Applicant.
- Sections
101, 103 and 105 variously refer to the need for all questions on an application
to be answered and no incorrect answers given; that no bogus documents
are to be
provided, given or presented in support of an application and, finally, that
once an Applicant is informed, or becomes
aware, of an incorrect answer, the
obligation falls to the Applicant to inform of the incorrect answer and to
provide the correct
one. In that correspondence dated 12 November 2008, sent by
registered mail to the Applicant’s last known address, the Applicant
was
invited to provide a written response to the allegation about the bogus nature
of the letters and to the answers alleged to have
been incorrect. She was to
give reasons by 5 December 2008 as to why her student visa should not be
cancelled (the s.109 letter). No response was received.
- By
a letter dated 16 December 2008 the First Respondent’s delegate sent the
Applicant a copy of the decision to cancel her visa
under s.109 of the Act (the
cancellation notice). That letter was also sent by registered post to the last
residential address of the Applicant
– being the same address as the s.109
letter was sent. The cancellation notice was not returned. The Applicant
admits having received the s.109 letter and the cancellation notification, but
at a significantly late time due to, she maintains, a third party not passing
them
onto her.
The Tribunal’s hearing and findings
- At
the hearing the Applicant gave evidence to the effect that she had a Bachelor of
Arts degree. This was the first time the Applicant
had made that claim whereas
earlier, in her application, she claimed to be a “computer diploma
holder”. She also informed
the Tribunal that she was unaware that two
student visa applications had been made but she confirmed her signature on both
the applications.
She denied, however, completing the forms and denied the
handwriting was hers. She also agreed she had received the s.109 letter. She
maintained that the PNB letters were genuine, but when presented with the
response from the PNB alleging they were fake
she asserted she had not seen the
PNB response before and was unable to provide any explanation, or give any
further evidence on
the matter.
- It
is to be noted, also, that the Tribunal invited the Applicant to comment
pursuant to s.359A of the Act, to which the Applicant provided two
responses.
- The
Tribunal found after examining the PNB letters and the PNB response, and after
considering the evidence given by the Applicant
at the hearing, including
evidence about a loan from another bank which proved to be for a another person,
that the Applicant had
not complied with s.103 of the Act because she caused a
bogus document to be given in support of her application. In my view, these
findings were open to
the Tribunal based on the evidence before it.
- The
Tribunal, having found the PNB letters to be bogus, also found the Applicant
provided, or caused to be provided, incorrect answers
in her visa application in
breach of s.101(b) of the Act. Again, in my view, this finding was open to the
Tribunal.
- Significantly,
the Tribunal expressed its concerns about the credibility of the
Applicant’s evidence and concluded that she
was not a witness of truth.
On the evidence before the Tribunal there would appear to be good grounds for
that finding.
The grounds for review
- The
grounds for review expressed in the application were expanded by the contentions
filed on behalf of the Applicant. In saying
that, however, the formulation of
them was vague and it was necessary, in order to do justice to the Applicant, to
attempt to formulate
grounds that may apply on the basis of the submissions
made. Not unusually when an applicant does not have, or have available, the
requisite legal skills, the stated grounds for review lack the focus and
precision demanded in these types of cases where it is incumbent
on the review
applicant to persuade the Court that a jurisdictional error was made by the
Tribunal. This is perhaps less understandable,
in this case, where the
Applicant appeared to have the assistance of a migration agent in the
preparation of her case. Be that as
it may, the First Respondent did not take
issue with this and sought to address all of the potential grounds for review as
articulated
in the application, the supporting affidavit and the contentions of
fact and law filed by the Applicant.
- From
the Applicant’s filed material, it was possible to discern potential
grounds for review which were extracted and addressed
in the First
Respondent’s contentions of fact and law. For the sake of convenience, I
will address those potential grounds
in the same order.
- The
application appears to raise two grounds; namely, errors in notification by the
Minister, and a failure to consider relevant considerations.
- In
respect of the alleged failure of notification, the Applicant relied on an
assertion that her previous migration agent failed to
forward on to her
Departmental correspondence on time. She alleges that the visa was cancelled
without her knowledge and that the
registered letters (that is the s.109 letter
and cancellation notice) were received by another person without her
authorisation, and that she did not know she had been
contacted by the
Department. I note that these claims are inconsistent with the evidence before
the Tribunal and, I further note,
the conclusions reached on the question of the
Applicant’s credit. I am satisfied the Minister complied with regulation
2.55 of the Migration Regulations 1994 in posting the s.109 letter and
cancellation notice by registered mail to the Applicant’s last known
address and that the Applicant is deemed to
have received them. In any event,
the Applicant was unable to advise as to what she may have been able to do, once
notified, that
could have affected the outcome. In my view, the
Applicant’s claims in regard to a failure to properly notify do not reveal
any jurisdictional error.
- In
respect of the allegation that the Tribunal failed to consider relevant
considerations, no particulars were provided. A reading
of the Tribunal’s
decision and also the Applicant’s material submitted, does not indicate
that a claim existed, or an
integer of a claim, that was not considered by the
Tribunal which the Tribunal was bound to take into account in making its
determination
and which, had it been considered, may have been dispositive of a
review (see Minister for Aboriginal Affairs v Peko–Wallsend Ltd
[1986] HCA 40; (1986) 162 CLR 24 at 39-40 per Mason J, and NABE v Minister for Immigration
and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1). I am
satisfied that the Tribunal had regard to all relevant considerations in its
reasons for decision and in this regard no jurisdictional
error is
disclosed.
- The
next potential ground is the quality of translation provided by the interpreter
used at the hearing. The First Respondent submits
that this is mere assertion,
not supported by evidence. With this contention, I must agree. The Applicant
has provided no instance
of where a mistranslation may have led to the Applicant
either not having a proper hearing, as required by s.360 of the Act, or to
the
Tribunal being misled in a way that a proper translation may have resulted in a
decision favourable to the Applicant. Clearly,
the Applicant must provide
evidence that demonstrates specific examples of the interpreter’s
performance having unfairly affected
the presentation of her claims and evidence
(see Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; (1999)
92 FCR 6 per Kenny J). No jurisdictional error is demonstrated in this
regard.
- The
next contention raised by the Applicant centres on her allegations concerning
the conduct of her former migration agent and a
bank manager in India. By these
allegations, the Applicant seems to be attempting to bring her case within that
considered in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232
CLR 189. It is accepted that a fraud practiced on the Tribunal by a person,
other than the visa Applicant, may disable the Tribunal from
the due discharge
of its statutory functions with respect to the conduct of the review. However,
strong evidence in required to
establish that fraud. Briginshaw v
Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 per Dixon J requires that fraud must be
proved “clearly”, “unequivocally”,
“strictly”
or “certainly”. Further, the fraud must be
shown to affect the process proscribed by the Act; in particular, whether
the
Applicant had the opportunity to appear before the Tribunal to give evidence and
present arguments (see SZFNX v Minister for Immigration and Citizenship
[2007] FCA 1980 at [34] per Besanko J; SZLHP v Minister for Immigration
and Citizenship [2007] FMCA 1675 at [16] per Scarlett FM. For a more recent
discussion of the issued raised and considered in respect of an alleged fraud on
the Tribunal
see Minister for Immigration and Citizenship v Lu [2010]
FCAFC 147).
- The
First Respondent contends, with which contention I agree, that the Applicant has
not discharged her burden of establishing fraud
in regard to this ground and,
indeed, has not gone into evidence on the issue. It is to be noted that the
agent, against whom the
Applicant now makes allegations, was called as a witness
before the Tribunal by the Applicant. The irregularities concerning the
PNB
letters and the PNB response were already known to the Applicant at this time,
yet the opportunity to agitate this contention
was not availed. The Applicant,
in my view, has not demonstrated how any of the matters raised now in this
regard impacted on the
Tribunal so as to deny the Tribunal the opportunity of
fulfilling its imperative function to review.
- Again,
to the extent the Applicant relies upon failures by her former immigration agent
to act in a timely fashion, or a failure in
administrative arrangements entered
into between her and third parties, they do not reveal jurisdictional error.
- The
Applicant contends that the First Respondent was in error in processing the
second application and granting a visa in response
to it. This is a strange
ground with perhaps a number of interpretations.
- The
impression created was that the Applicant contended that the second application
for the visa should not have been granted in the
first instance because,
manifestly, when regard is had to the date of the application (4 April 2006) and
the date of the bogus document
from the PNB (6 March 2008), it is apparent that
the PNB document post dates the application. I took this assertion by the
Applicant
to be an argument that, having in those circumstances granted the
visa, the Minister was estopped from then cancelling, the Applicant
having acted
to her detriment by coming to Australia.
- Should
this have been the thrust of the Applicant’s contention, I am satisfied
that the First Respondent was not in error in
processing the second application.
No issue of estoppel arises. In any event, on the face of it, the second
application appeared
valid and under s.47 of the Act the First Respondent is to
consider it.
- Another
aspect of the Applicant’s contention, in a similar fashion, was that the
First Respondent’s discovery of bogus
documents and incorrect information
after the visa was granted and thereafter cancelling the visa is indicative of
jurisdictional
error. None of these contentions were fully developed by the
Applicant, but I took it to be a bald contention that the First Respondent
should not have cancelled the visa after its issue.
- In
my view, the First Respondent is entitled to rely on the evidence presented in
an application and if, on the face of it, it appears
to satisfy necessary
criteria to issue a visa but, thereafter, on discovering that the application
was supported by bogus information,
he was entitled to cancel the visa pursuant
to s.109. There was nothing in the process adopted by the First
Respondent’s delegate in this regard that would reveal jurisdictional
error and nothing at the Tribunal level to further reveal such error.
- In
the final contention the Applicant makes general statements about the use by the
Tribunal of the PNB letters with the implicit
suggestion that the Tribunal came
to conclusions and used the PNB letters in a way where, as I understand how the
submission is put,
the Tribunal needed further evidence before concluding that
they were bogus; namely, some need to find who produced them and where
they were
produced. In my view, the Tribunal was more than entitled to give the PNB
response the probative value that it did and
to draw the conclusion and make the
finding that the PNB letters submitted by the Applicant as part of her visa
application were
bogus. It is also to be noted that the PNB letters were put to
the Applicant for comment during the hearing and she was given every
opportunity
to give evidence and make argument about the issue. As noted earlier, when this
was done, she made no further comment.
The Tribunal’s approach to the
evaluation of the evidence and the weight to be given was open to it and does
not reveal any
jurisdictional error.
- In
conclusion, to a significant degree the Applicant’s case invited the Court
to review the facts of the case, which invitation
amounts to an impermissible
merits review and does not form a basis for a finding of jurisdictional error
(see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996)
185 CLR 259).
Conclusion
- The
Tribunal’s findings, in relation to the breaches by the Applicant, as set
out in its decision, and the affirmation of the
delegate’s determination
to cancel the visa are, in my view, supported by the evidence and certainly open
to the Tribunal to
so find.
- For
the above reasons, the Applicant has failed to disclose any jurisdictional error
on the part of the Tribunal and, accordingly,
the application filed 19 March
2010, as amended, is dismissed.
I certify that the preceding
31Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style
not defined.!Syntax
Error, !thirty-onethirty-one (31) paragraphs are a true copy
of the reasons for judgment of O'Dwyer FM
Associate:
Date: 27 January 2011
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