Patel v Minister for Immigration & Anor [2011] FMCA 309 (3 June 2011)

Last Updated: 3 June 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PATEL v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 309

MIGRATION – Migration Review Tribunal – cancellation of visa – whether applicant provided a document to the Minister – whether the cancellation notice adequately identified the non-compliance.

Migration Act 1958, ss.97; 103; 107; 108; 109; 359A

Shu v MIMIA [2003] FCA 791

Applicant:

ARJAN PATEL

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File number:

MLG 1332 of 2010

Judgment of:

Riley FM

Hearing date:

13 April 2011

Date of last submission:

13 April 2011

Delivered at:

Melbourne

Delivered on:

3 June 2011

REPRESENTATION

Counsel for the Applicant:

John A Gibson

Solicitors for the Applicant:

FCG Legal Pty Ltd

Counsel for the First Respondent:

Emily Latif

Solicitors for the First Respondent:

Clayton Utz

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Clayton Utz

DECLARATION

The decision of the second respondent made in matter 0904628 is unlawful, void and of no force and effect.

ORDERS

(1) There be an order in the nature of a writ of certiorari bringing in to court and quashing the decision of the second respondent in matter 0904628 made on 8 September 2010.
(2) There be an order in the nature of a writ of prohibition prohibiting the respondents from giving effect to that decision.
(3) The first respondent pay the applicant’s costs fixed in the sum of $5,865.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

MLG 1332 of 2010

ARJAN PATEL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision of the Migration Review Tribunal. The Tribunal affirmed a decision of the delegate of the first respondent to cancel the applicant’s subclass 880 skilled independent overseas student visa. The cancellation was based on the view that the applicant had given a bogus document to the first respondent.

Background

2. The applicant undertook a Bachelor of Business (Accounting) at Central Queensland University. While doing so, the applicant was permitted by CQU to undertake cross-institutional studies at the University of Southern Queensland. The study undertaken by the applicant at USQ was the subject of Auditing.
3. The applicant provided to CQU a false academic transcript which indicated that the applicant had passed Auditing at USQ when he had not. Partly on the basis of the false academic transcript, CQU:
   1. gave the applicant a Notification of Completion, which indicated that he had completed the requirements for a Bachelor of Business (Accounting); and
   2. awarded the applicant a Bachelor of Business (Accounting).
4. Subsequently, the applicant gave the Notification of Completion to the immigration department for the purposes of obtaining the visa that is the subject of these proceedings.

Issues

5. The issues before the court are essentially:
   1. whether the applicant gave a bogus document, as defined, to an officer; and
   2. if so, whether the notice to the applicant of the Minister’s intention to consider cancelling the applicant’s visa adequately identified the applicant’s non-compliance.

Legislation

6. Section 103 of the Migration Act 1958 provides that:
   • A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented or provided.
7. Section 97 of the Act defines “bogus document” 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.
8. Section 107 of the Act provides that:
   • (1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
     • (a) giving particulars of the possible non-compliance; and
     • (b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
       • (i) if the holder disputes that there was non-compliance:
         • (A) shows that there was compliance; and
         • (B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance-shows cause why the visa should not be cancelled; or
       • (ii) if the holder accepts that there was non-compliance:
         • (A) give reasons for the non-compliance; and
         • (B) shows cause why the visa should not be cancelled; and
     • (c) stating that the Minister will consider cancelling the visa:
       • (i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response-when that notice is given; or
       • (ii) if the holder gives the Minister a written response within that period-when the response is given; or
       • (iii) otherwise-at the end of that period; and
     • (d) setting out the effect of sections 108, 109, 111 and 112; and
     • (e) informing the holder that the holder's obligations under section 104 or 105 are not affected by the notice under this section; and
     • (f) ...

(1A) ...
(1B) ...

• (2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

9. Section 108 of the Act provides that:
   • The Minister is to:
     • (a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
     • (b) decide whether there was non-compliance by the visa holder in the way described in the notice.
10. Section 109 of the Act provides that:
    • (1) The Minister, after:
      • (a) deciding under section 108 that there was non-compliance by the holder of a visa; and
      • (b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
      • (c) having regard to any prescribed circumstances;
      • may cancel the visa.
    • (2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

The s.107 notice

11. The first respondent gave the applicant a notice under s.107: CB21.
    It said, relevantly:
    • While attending Central Queensland University studying Bachelor of Business (Accounting) you were granted permission to undertake Cross Institutional study with the Sydney Education Centre of the University of Southern Queensland commencing in July 2006. At the cessation of study you presented a document which was duly certified and copied purporting to grant you a pass in the course ACC3118 Auditing in 2006 term 2 dated
      20 December 2006.

On 3 April 2009 the Department received advice from the University of Southern Queensland that the document you presented to Central Queensland University stating that you had passed the course ACC3118 Auditing is not a true and accurate reflection of your student record as recorded on the University of Southern Queensland student database.

When you lodged your DD 880 visa application on 7 February 2007 you stated at question 61 (form 47SK) that your post-secondary qualifications included a Bachelor of Accounting which you completed at Central Queensland University.

It appears that you obtained your Bachelor of Accounting degree from Central Queensland University because of misleading statements and the submission of counterfeit documents.

Similarly the assessment of your qualifications/skills conducted by CPA Australia Ltd which admitted you to Associate membership appears to have been obtained because you submitted your Bachelor of Business (Accounting) degree from Central Queensland University.

This indicates that you did not comply with Section 97(c) as the transcript from the University of Southern Queensland you submitted to Central Queensland University regarding your results in the course ACC3118 Auditing in 2006 were obtained because of misleading statements.

The delegate’s decision

12. The delegate noted in his decision (CB95) the matters set out in the previous paragraph as evidence of non-compliance with s.103 of the Act. After considering the prescribed circumstances, the delegate cancelled the applicant’s visa.

The Tribunal’s decision

13. Relevantly, the Tribunal said the following in its reasons for decision:
    • Was the non-compliance in the way described in the s.107 notice?
      • 44. The Tribunal must decide whether there was non-compliance by the applicant in the way described in the s.107 notice. As stated earlier, the Tribunal must direct its findings at the particulars of non-compliance which were given in the initiating notice, and no others: SZEEM v MIMIA [2005] FMCA 27 at [32] and [37].
      • 45. The non-compliance identified and particularised in that notice was non-compliance with s. 103 of the Act because the applicant gave a bogus document to an officer, an authorised system, the Minister or the Tribunal, or caused such document to be so given. The s. 107 notice stated that “bogus document” was defined in section 97 of the Act and highlighted section 97(c) of the Act, in that it included a document obtained because of a false or misleading statement, whether or not made knowingly.
      • 46. As already indicated, the s.107 notice stated that while the applicant was studying Bachelor of Business (Accounting) at CQU, he undertook cross institutional studies with USQ, following which, he presented a document to CQU purporting to grant him a pass in Auditing in term 2 of 2006. It appeared that on the basis of this document, he was granted a Bachelor of Accounting from CQU and was skills assessed by CPA Australia Ltd (CPA).
      • 47. It stated that he then lodged his DD880 visa application on 7 February 2007, where, at question 61, he disclosed that his qualifications included a Bachelor of Accounting degree from CQU. On 3 April 2009, the Department received advice from USQ that the document presented to CQU was untrue.
      • 48. The applicant initially responded by email that he had never provided a misleading statement did not know what this meant. He submitted that he was the victim of a nasty prank by a former house mate. He then provided a statement to the Department indicating that he had indeed produced a bogus document. It was submitted that the applicant provided an academic transcript to CQU purporting to grant him a pass in Auditing studied at USC which was not authentic. He was given a Notification of Completion from CQU following which he included a Bachelor of Business (Accounting) from CQU in his DD880 visa application.
      • 49. It was submitted that he did not complete his application for associate membership of CPA and does not purport to be a member. His representative was instructed that he provided CPA with an unofficial transcript of his Accounting degree from CQU, not showing completion of the Auditing subject. In response to his request for assessment CPA informed him that an Accounting degree from CQU met their basic requirements for Associate membership but he needed to undertake further studies in Auditing. It was submitted that the CPA assessment meant that for the purposes of a positive skills assessment he did not require auditing. It was submitted that there was some doubt as to whether the applicant had actually given the Department the bogus document, as the altered USQ results transcript was only given to CQU.
      • 50. Subdivision C of Division 3 of Part 2 deals with the cancellation of visas where incorrect information or a bogus document is presented. The Tribunal notes SZEEM v MIMIA (supra) and is of the view that Subdivision C intends to give broad powers to the decision-maker to cancel a visa in circumstances where incorrect information is given and that includes giving a document in the course of making and processing of the application. In this instance, the s.107 notice accurately contains a narrative of events involving bogus documents and incorrect information leading to the submission of the visa application and its subsequent granting. It refers several times to the degree from CQU.
      • 51. It is most likely correct that the applicant did not give the altered transcript to the Department, and this is never asserted in the s107 notice. Based on the applicant’s evidence to the Tribunal and most particularly his acknowledgement that the documents were fake and his expressed regret, the Tribunal is persuaded that the applicant did give the Notification of Completion of the subjects required for his Bachelor of Business (Accounting) degree from CQU to the Department with his application for the visa and that this document was based on incorrect information provided to CQU concerning his auditing results at USQ. The USQ auditing result transcript is a bogus document within the meaning of s. 97(c) of the Act, as is the resulting Notification of Completion. The forged USQ transcript led directly to CQU giving the applicant a Notification of Completion, which was given to the Department when the applicant applied for his Class DD visa in February 2007. The Tribunal finds that the applicant gave a bogus document to an officer, an authorised system, the Minister or the Tribunal, or caused such document to be so given. The Tribunal therefore finds that the applicant did not comply with s. 103 of the Act in the way described in the s. 107 notice.
14. The Notice of Completion is the one document contained in the supplementary court book. It reads as follows:
    • This letter is to advise that on November 10, 2006, Arjan Parbat Patel, S0028391, born the fifteenth day of August, 1983, completed the requirements for the award of Bachelor of Business (Accounting) from Central Queensland University with an award conferral date of the twenty seventh day of November, 2006.
    • The Bachelor of Business (Accounting) is an Undergraduate award studied over 3 Years of full time study.
    • Arjan Parbat Patel was enrolled as a full-time International Full Fee paying student at the Sydney campus of Central Queensland University.
    • Arjan Parbat Patel commenced study in the Bachelor of Business (Accounting) program in July, 2003.
15. The Tribunal proceeded to consider the prescribed circumstances and then affirmed the delegate’s decision.

The grounds of review

16. The applicant was given leave to amend his grounds of review at the hearing of the application to add the second ground.

First ground

17. The first ground in the amended application is as follows:
    • The Second Respondent misconstrued and/or misconceived and/or misapplied the definition or meaning of the term bogus document in s97 of the Act as incorporated into s103 as the ground of cancellation pursuant to s109 upon which the Second Respondent relied and/or it asked a wrong question and/or identified a wrong issue in that the Applicant did not give the document that was altered, or cause it to be given, to an officer [of the First Respondent] and the Second Respondent failed to recognise that fact.
18. The first ground is essentially that the applicant did not give an officer an altered document and the Tribunal failed to recognise that fact. A document altered without authority is one of the types of document that is defined in s.97(b) of the Act as being a bogus document. However, the Tribunal did not rely on that aspect of the definition. Rather, the Tribunal relied on s.97(c) of the Act, which concerns a document (the Notification of Completion) that was obtained because of false or misleading information (the forged academic transcript from USQ).
19. From the excerpts set out above from the Tribunal’s reasons for decision, it can be seen that the Tribunal’s process of reasoning was as follows:
    1. the applicant produced a forged document, being the false transcript from USQ, which indicated that he had passed auditing at USQ;
    2. the applicant gave the forged transcript to CQU;
    100. based in part on the forged transcript, CQU gave the applicant the Notification of Completion, which stated that the applicant had completed the requirements for a Bachelor of Business (Accounting);
    4. the applicant gave the Notification of Completion to an officer, as part of the visa application;
    5. the Notification of Completion was a bogus document within the meaning of s.97(c) of the Act, because it was obtained because of a false statement, namely, the statement contained in the forged transcript from USQ to the effect that the applicant had passed auditing at USQ when he had not; and
    6. accordingly, the applicant breached s.103 of the Act in the way described in the s.107 notice.
20. Consequently, the first ground, as it is put in the amended application for review, is misconceived. The Tribunal did not say that the applicant had given an altered document to an officer. The Tribunal noted the applicant’s admission that he, with the help of a friend, had altered the transcript from USQ to read “pass” instead of “fail” in relation to the subject of auditing. However, the Tribunal did not suggest that the applicant had given the altered transcript to an officer.
21. In any event, in the applicant’s written submissions, the question was asked whether the Tribunal was correct to say that the Notification of Completion was obtained “because of” a false or misleading statement. The Tribunal found as a fact that:
    • 51. ... The forged USQ transcript led directly to CQU giving the applicant a Notification of Completion, which was given to the Department when the applicant applied for his Class DD visa in February 2007.
22. In oral submissions, the applicant said that there was no evidence to support that finding. However, the applicant’s case before the delegate and the Tribunal was that he needed a pass in auditing to qualify for the degree. That is, without a pass in auditing, he would not have received the Notification of Completion stating that he had met the requirements for the degree.
23. That position was made clear repeatedly in the applicant’s documents. For example, a submission from the applicant’s lawyers dated
    10 June 2009 (CB50) said:

... if the course states that Auditing is a core unit, then failure to pass the unit has the result the student does not meet the qualification for the degree. This is the case here ....

24. In my view, there was ample evidence before the Tribunal that the Notification of Completion was obtained because of a false and misleading statement, namely, the statement that the applicant had passed the subject of auditing at USQ.
25. The Tribunal did make one mistake in its reasoning about this matter. It said at [51] that:
    • The USQ auditing result transcript is a bogus document within the meaning of s. 97(c) of the Act, as is the resulting Notification of Completion.
26. In fact, the USQ transcript was a bogus document within the meaning of s.97(b) of the Act, because it was a document altered by a person without authority, rather than a document obtained because of a false or misleading statement. However, the error is immaterial, because it did not concern the document that was given to an officer, namely, the Notification of Completion.
27. The Tribunal was correct to consider that the USQ transcript was a bogus document. It was altered by a person without authority. That is not to say that it was a bogus document that enlivened s.103 of the Act. It was not, because it was not given to an officer or other relevant person.
28. It may also be that the applicant argued that there was no evidence to support the finding that the applicant had given the Notification of Completion to an officer of the Minister. However, in a submission dated 10 June 2009, the applicant’s lawyer said:
    • At his housemate’s suggestion he and his housemate used a scanner at his housemate’s workplace to copy the Academic Transcript he had received from the University of Southern Queensland and to change the word ‘fail’ to ‘pass’.
    • The resulting copy was then sent to Central Queensland University which subsequently sent him a Letter of Completion.
    • He then provided the Letter of Completion to the DIAC with his visa application.
29. In case it might be thought that there is a difference between a Letter of Completion and a Notification of Completion, the Tribunal noted in a s.359A letter (CB178) that:
    • In subsequent correspondence with the Department and at the hearing before the Tribunal, you admitted that you had caused your results transcript to be falsified and that you provided a Notification of Completion to the Department, obtained on the basis of the falsified transcript.
30. The applicant’s lawyers responded in writing to the s.359A letter (CB187). They did not dispute the facts stated by the Tribunal as set out in the previous paragraph. Consequently, I consider that there was evidence before the Tribunal to support the finding that the applicant had given the Notification of Completion to an officer.

Second ground

31. The second ground in the amended application is as follows:
    • The Second Respondent in proceeding to affirm the cancellation of the Applicant’s visa under s109 misunderstood and/or misconstrued the terms of s108(b) of the Act when it made a finding of non-compliance with s97(c) and s103 of the Act as there was no “non-compliance in the way described in the notice” pursuant to s107.
32. Section 108 of the Act provides that:
    • The Minister is to:
      • (a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
      • (b) decide whether there was non-compliance by the visa holder in the way described in the notice.
33. The s.107 notice said:
    • While attending Central Queensland University studying Bachelor of Business (Accounting) you were granted permission to undertake Cross Institutional study with the Sydney Education Centre of the University of Southern Queensland commencing in July 2006. At the cessation of study you presented a document which was duly certified and copied purporting to grant you a pass in the course ACC3118 Auditing in 2006 term 2 dated
      20 December 2006.
    • On 3 April 2009 the Department received advice from the University of Southern Queensland that the document you presented to Central Queensland University stating that you had passed the course ACC3118 Auditing is not a true and accurate reflection of your student record as recorded on the University of Southern Queensland student database.
    • When you lodged your DD 880 visa application on 7 February 2007 you stated at question 61 (form 47SK) that your post-secondary qualifications included a Bachelor of Accounting which you completed at Central Queensland University.
    • It appears that you obtained your Bachelor of Accounting degree from Central Queensland University because of misleading statements and the submission of counterfeit documents.
    • Similarly the assessment of your qualifications/skills conducted by CPA Australia Ltd which admitted you to Associate membership appears to have been obtained because you submitted your Bachelor of Business (Accounting) degree from Central Queensland University.
    • This indicates that you did not comply with Section 97(c) as the transcript from the University of Southern Queensland you submitted to Central Queensland University regarding your results in the course ACC3118 Auditing in 2006 were obtained because of misleading statements.
34. The question is whether there was non-compliance with s.103 of the Act in the way described in the s.107 notice. That is, did the applicant give an officer a bogus document in the way described in the notice?
35. It is clear that the s.107 notice did not specifically mention the Notification of Completion, and did not refer in general or specific terms to any bogus document that the applicant gave to an officer.
36. The s.107 notice also contained certain inaccuracies. It said that the transcript from USQ was obtained because of misleading statements. In fact, it was a document that was altered without authority. Section 97(c) of the Act does not require compliance. It is a definition section. It is s.103 that relevantly requires compliance.
37. The applicant and first respondent both referred the court to the decision of Emmett J in Shu v MIMIA [2003] FCA 791. In that case, his Honour considered a decision of a delegate relating to an allegedly bogus document, consisting of a false work reference. The delegate considered that the reference was false and misleading but did not state that the reference, in the terms of s.97(c), was “obtained because of a false or misleading statement”.
38. Emmett J considered that the delegate had not turned his mind to the question s.103 of the Act poses, namely, whether the document was counterfeit, or had been altered without authority, or had been obtained because of a false or misleading statement.
39. The first respondent sought to distinguish Shu, on the grounds that, in that case, there was no evidence about where the false work reference came from, who created it, or how it came before the Minister, whereas, in the present case, all those questions were answered.
40. However, that submission does not seem to me to address the deficiency identified in Shu. That deficiency was that the decision-maker had not turned his mind to the particular way in which the work reference was a bogus document. That is the same deficiency that arises in this case, except that, in addition, the delegate did not even identify in the s.107 notice the document that was said to be bogus.
41. The first respondent submitted that the s.107 notice referred to the provision of bogus documents, in the plural, meaning that the delegate was not just relying on the transcript, but also the Notification of Completion. The first respondent referred particularly to the passage in the s.107 notice which reads:
    • It appears that you obtained your Bachelor of Accounting degree from Central Queensland University because of misleading statements and the submission of counterfeit documents.
42. However, that passage highlights the problem. It does not refer to any bogus document that was submitted to an officer of the Minister. It does not say how any document that was submitted to the Minister could properly be described as a counterfeit or how any such document was obtained because of a false or misleading statement.
43. It is true that the Tribunal was alive to these issues in its reasons, and properly mapped out the pathway. However, the point that is taken in this court is that the s.107 notice itself did not actually recite any non-compliance with s.103 of the Act, in the sense that the s.107 notice did not say that the applicant had given an officer a document that was a bogus document for specified reasons. Consequently, the applicant argued, it was not possible for the Tribunal to find, pursuant to s.108(b) of the Act, that the applicant had not complied with s.103 of the Act in the way specified in the s.107 notice.
44. It seems to me, in all the circumstances of this case, and particularly in the light of Shu, that the problem mentioned in the previous paragraph amounts to a jurisdictional error. This result may seem extremely technical, particularly as the applicant, by his own admission, provided to an officer a Notification of Completion that was obtained because of a false or misleading statement, namely, the statement contained in the transcript from USQ that the applicant had passed auditing when he had not.
45. However, it was not suggested to the court that there were any discretionary reasons to withhold the usual relief. Consequently, there will be orders setting aside the Tribunal’s decision with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:

Date: 3 June 2011