FEDERAL COURT OF AUSTRALIA Luthra v Minister for Immigration and Citizenship [2009] FCA 575 NALISHA LUTHRA, RAKESH LUTHRA and TASHNA LUTHRA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL NSD 252 of 2009 SIOPIS J 29 MAY 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 252 of 2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NALISHA LUTHRA First Appellant RAKESH LUTHRA Second Appellant TASHNA LUTHRA Third Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: SIOPIS J DATE OF ORDER: 29 MAY 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellants are to pay the first respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 252 of 2009 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NALISHA LUTHRA First Appellant RAKESH LUTHRA Second Appellant TASHNA LUTHRA Third Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: SIOPIS J DATE: 29 MAY 2009 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellants are citizens of India. The first appellant is the primary visa applicant. The second appellant is her husband and the third appellant is their daughter. 2 On 1 May 2000, in anticipation of making an application for a Subclass 136 Skilled – Independent visa, the first appellant applied to CPA Australia for an assessment of whether her skills were suitable for her occupation as an accountant. In support of her application to CPA Australia, the first appellant stated that she had a Bachelor of Commerce (Pass) from Delhi University completed in 1994 and a Master of Commerce from Delhi University completed in 1996. The first appellant forwarded to CPA Australia copies of her degree certificates and statement of marks from Delhi University for each of the degrees. The degree certificate and statement of marks for the Master of Commerce referred to the first appellant's roll number as: 26712. 3 By a letter dated 26 September 2000, CPA Australia advised the first appellant that: Your Bachelor and Master of Commerce from the University of Delhi is assessed as comparable to Australian tertiary qualifications. Thus, you have satisfied the CPA Australia's first academic requirement for membership. In order to fulfil the Minimum Core of Knowledge requirements for admission as an Associate member, you will need to successfully complete additional studies in the following subject areas: • Australian Taxation Law; • Australian Company Law. 4 On 11 December 2000, the first appellant applied for a Subclass 136 Skilled – Independent visa and forwarded to the Department, CPA Australia's letter dated 26 September 2000 and supporting materials. On 26 August 2002, in the process of assessing the first appellant's visa application, the Department received a letter dated 14 August 2002 from the Assistant Controller of Examinations, University of Delhi, which verified the first appellant's Bachelor of Commerce degree but stated that there was no record of the first appellant having passed a Master of Commerce examination as claimed and that the photocopy of her degree and marks sheet for that degree supplied to the Department for verification were "fake" and had not been issued by the University of Delhi. 5 On 7 May 2003, the first appellant withdrew her Subclass 136 visa application before a decision was made in respect of that application. 6 However, on 13 May 2003, the appellants lodged another visa application. This was for a Skilled ‑ Independent Overseas Student (Residence) (Class DD) visa. This class of visa contains one Subclass: Subclass 880 (Skilled – Independent Overseas Student). In the visa application, the first appellant nominated "accountant" as her occupation. 7 For the appellants to make a valid visa application, it was necessary for the first appellant to comply with Item 1128CA(3)(k) of Sch 1 to the Migration Regulations 1994 (Cth) (the Regulations) which provided 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. 8 The Regulations provided that the assessing authority for the occupation of an accountant is CPA Australia. In support of her Subclass 880 visa application, the first appellant provided to the Department the CPA Australia assessment dated 26 September 2000 which she had previously submitted in support of her application for a Subclass 136 visa. 9 A delegate of the first respondent refused the appellants' visa application on 10 February 2004. 10 On 10 March 2004, the appellants applied to the Migration Review Tribunal (the Tribunal) for a review of that decision. The decision of the Tribunal was set aside by consent and remitted to a differently constituted Tribunal to conduct the review of the delegate's decision. THE TRIBUNAL 11 At the relevant time, Pt 880 of Sch 2 to the Regulations provided for a number of criteria to be satisfied at the time of the decision in respect of an application for a Subclass 880 visa. One of the relevant criteria, cl 880.224, provided as follows: No evidence 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. 12 On 17 April 2007, the Tribunal received documents from CPA Australia including the documents provided to CPA Australia by the first appellant in support of her skills assessment application made in 2000. The documents included a copy of the Master of Commerce degree, and statement of marks for that degree. 13 On 30 May 2007, the Tribunal wrote to the appellant reciting the fact of the first appellant's earlier application for the Subclass 136 visa and the letter that it had received from the University of Delhi to the effect that the Master of Commerce certificate was a "fake". The Tribunal's letter went on to invite the appellants, pursuant to s 359A of the Migration Act 1958 (Cth) (the Act), to comment on the information that it had obtained which suggested that the first appellant's Master of Commerce degree certificate was false; and that, therefore, information which had been provided to CPA Australia may be false or misleading in a material respect with the consequence that the condition in cl 880.224 was not complied with. The Tribunal's letter also included a copy of the letter which the Department had received from the University of Delhi dated 14 August 2002. 14 The appellants' solicitors responded to the Tribunal's letter by disputing the authenticity of the "purported letter" from the University of Delhi. The solicitors' letter went on to say that the second appellant had approached the University of Delhi and had been advised that a number of entries on the student roll, which included the student roll number, 26712, recorded on the first appellant's Master of Commerce certificate and marks statement, were missing from the University's records. 15 On 24 October 2007, the Tribunal held a hearing. At the hearing, the second appellant gave evidence to the effect that he had visited the University of Delhi and had been told that student roll numbers 26710 to 26720 were missing. At the hearing, the Tribunal discussed with the appellants the possibility of a Departmental officer visiting the University of Delhi to try and locate the student roll numbers and find out if any were missing. On 31 October 2007, the Tribunal was provided with an authority allowing the Departmental officers to inspect the student roll numbers in respect of the first appellant. 16 On 14 March 2008, a senior visa official and a local staff member of the Australian Consulate in Delhi visited the University of Delhi. The Degree Section Head of the University stated that the first appellant's Master of Commerce degree certificate was "non‑genuine" as it was missing an initial from an administrative staff member and her student roll number was missing from the University records. The missing student roll number, said the University official, indicated that the first appellant had either not taken, or failed, her exams. One of the Departmental officers prepared a report recording what they had been told on the site visit, and sent it to the Tribunal. 17 The Tribunal invited the appellants to comment upon this information by a letter dated 26 March 2008. On 2 May 2008, the appellants' representative responded to the Tribunal's letter of 26 March 2008. In that letter, the appellants claimed the information, that the Masters degree was not genuine, was known at the time of the previous visa application, and that cl 880.224 of Sch 2 of the Regulations had no application. 18 The Tribunal concluded that the degree certificate for the Master of Commerce and the relevant statement of marks were false. The Tribunal also found that the documents were misleading as they indicated that the first appellant held an educational qualification that she did not have. 19 The Tribunal found that that the appellant's educational qualifications were relevant to CPA Australia's assessment of the appellant's nominated skill occupation. The Tribunal found that the Master of Commerce degree and the applicable statement of marks was information given and used as part of the skills assessment and that that information was false or misleading in a material particular. 20 The Tribunal also found that there was evidence that had become available since the visa application was made ‑ being the evidence from the Degree Section Head of the University of Delhi which arose from the site visit by officers from the Australian Consulate in Delhi. 21 Accordingly, said the Tribunal, the first appellant's visa application did not meet the condition in cl 880.224. The Tribunal upheld the delegate's decision to refuse to grant the Subclass 880 visas. THE FEDERAL MAGISTRATES COURT 22 On 10 July 2008, the appellants sought judicial review in the Federal Magistrates Court. The appellants claimed: 1. The Tribunal misapplied the law to the facts as found. Particulars a. The Tribunal affirmed the decision based on its finding that information had become available since the Applicants skills assessment, that the assessment was based on information that was false or misleading in a material particular. b. The information was that the Applicants Master of Commerce degree from the University of Delhi was not genuine. c. That information became available to the First Respondent on or about 22 August 2002 which was before the Applicant applied for a Skills Assessment. d. The information was, therefore, not caught by the provisions of clause 880.224 of Schedule 2 to the Migration Regulations. 23 The Federal Magistrate found that the report of the information obtained from the Degree Section Head of the University of Delhi during the site visit on 14 March 2008, was evidence that had become available since the time of the appellants' visa application which demonstrated that information given to CPA Australia for the purpose of making the skills assessment in respect of the first appellant's application, was false or misleading in a material respect. Accordingly, it had not been established that the Tribunal erred in applying the law to the facts. THE APPEAL 24 On 27 March 2009, the appellants filed a notice of appeal. The appellants rely upon two grounds of appeal. 25 The first ground of appeal is that the Federal Magistrate misconstrued cl 880.224 of Sch 2 to the Regulations in concluding that "evidence" had "become available since the time of the application" which falsified or rendered misleading the information given to the skills assessment authority. 26 The appellants contended that the Act was to be beneficially construed and that the Federal Magistrate erred in two respects in the construction that was accorded to cl 880.224. 27 First, it was said that the report of the statements made during the visit to the University of Delhi in March 2008 was not "evidence" for the purposes of cl 880.224. This was, so it was contended, because "evidence" in that context was to be construed as referring to evidence provided by the visa applicant in support of his or her visa application. In my view, there is no basis for giving the word "evidence" such a circumscribed meaning. Section 359 of the Act permits the Tribunal to obtain information from sources other than the visa applicant, and the Regulations are to be construed subject to the Act. In my view, there is no limitation by reference to its source, on the information which may comprise "evidence" for the purpose of cl 880.224 of Sch 2 of the Regulations. 28 Secondly, it was contended that the Federal Magistrate erred in finding that the documentary report of the statements made during the meeting at the University of Delhi on 14 March 2008, was evidence that had "become available" since the time of the appellants' application for a Subclass 880 visa. It was said that the evidence did no more than confirm information which was already available to the Department before the making of the Subclass 880 visa application. It could not, therefore, be said that that evidence had "become available" after the making of the Subclass 880 visa application. 29 The evidence comprising the report of the statements made by the Degree Section Head of the University of Delhi in March 2008 which was relied upon by the Tribunal, was evidence of an event that occurred after the making of the relevant visa application, and which occurred by reason of a controversy which had arisen after the appellants had made their application for the Subclass 880 visa. On any view, this was evidence that had "become available" after the making of the relevant visa application. The Federal Magistrate did not err in so holding. 30 However, in my view, on its proper construction cl 880.224 is to be read as if the words "to the Tribunal" are included immediately after the words "become available". This is consistent with the wide information gathering power which the Tribunal has in carrying out its merits review of the delegate's decision. This includes the power of the Tribunal to obtain information itself under s 359 of the Act. Thus there is, in my view, no limitation on the relevant evidence to which the Tribunal may have regard by reference to the date on which the relevant evidence originated. 31 Accordingly, the first ground of appeal is dismissed. 32 The second ground of appeal is that the Federal Magistrate should have found that the Tribunal committed jurisdictional error by failing to address the other criteria which were required by the Regulations to be satisfied by a visa applicant at the time of the decision. By failing to provide the appellants with a proper opportunity to be heard on the issue of the other criteria, it was contended that the Tribunal breached s 360 of the Act. 33 At the hearing, counsel for the appellants elucidated this ground of appeal. The gravamen of the complaint is that the Tribunal fell into jurisdictional error by failing to have regard to whether the first appellant's Bachelor of Commerce degree was a sufficient basis to satisfy the skills requirement as an accountant for a Subclass 880 visa. This was not a ground of review raised before the Federal Magistrate. In my view, leave should not be given to raise this matter for the first time as a ground of appeal. The interest of justice would not be served by so doing because the ground is devoid of merit. 34 The Regulations prescribe that it is CPA Australia which is to make the necessary skills assessment in respect of the first appellant's occupation as "accountant". It is not the function of the Tribunal to make this assessment. The Tribunal did not err by not inquiring into this issue. 35 It follows that the appeal is dismissed with costs. I certify that the preceding thirty‑five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 29 May 2009 Counsel for the Appellants: Mr A Kumar Solicitor for the Appellants: Harish Prasad & Associates Counsel for the First Respondent: Mr A Markus Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 28 May 2009 Date of Judgment: 29 May 2009