Kaur v Minister for Immigration and Border Protection [2016] FCA 10

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Border Protection [2016] FCA 10 Appeal from: Kaur v Minister for Immigration and Border Protection & Anor [2015] FCCA 1368

File number(s): NSD 522 of 2015

Judge(s): SIOPIS J

Date of judgment: 22 January 2016

Date of hearing: 6 August 2015

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 37

Counsel for the Appellant: Mr A Kumar

Counsel for the First Respondent: Mr G Johnson

Solicitor for the First Respondent: Sparke Helmore

ORDERS

NSD 522 of 2015 BETWEEN: KIRANDEEP KAUR

Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

JUDGE: SIOPIS J DATE OF ORDER: 22 january 2016

THE COURT ORDERS THAT:

i. Leave to amend the notice of appeal dated 7 May 2015 is refused. ii. The appeal is dismissed. iii. The appellant is to pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SIOPIS J: 1 This is an appeal from a decision of a judge of the Federal Circuit Court of Australia delivered on 21 April 2015, dismissing the appellant's application for judicial review of a decision of the Migration Review Tribunal (the Tribunal). 2 The appellant is a citizen of India who arrived in Australia on 8 April 2009 on a Student visa. 3 On 27 April 2011, Mr Jitender Singh on behalf of the appellant, lodged electronically an application with the Department of Immigration and Citizenship, now the Department of Immigration and Border Protection (the department), for a Skilled (Graduate) (Class VC, subclass 485) visa (subclass 485 visa). The appellant, who lived in Sydney, had engaged the services of Mr Singh, who was a Melbourne based migration agent. 4 It was a requirement for the grant of a subclass 485 visa that an applicant for the visa nominate a skilled occupation and that the appellant's skills for the nominated occupation had been assessed by the relevant assessing authority as suitable for that occupation. 5 The visa application lodged on behalf of the appellant, nominated her occupation as a graphic pre-press trade worker and stated that her skills for her occupation had been assessed by Trades Recognition Australia (TRA) on 23 July 2010 with a skills assessment number TRA09/931820664. 6 On 27 April 2011, the TRA was not the relevant assessing authority to assess the appellant's skills for her occupation, because it had not by that date been nominated as such by the relevant Minister. That nomination only occurred some five months later on 28 September 2011. 7 It was also a requirement for the grant of a subclass 485 visa that a visa applicant satisfy Public Interest Criterion (PIC) 4020, which relevantly provides: 4020 (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to: (a) the application for the visa; or (b) a visa that the applicant held in the period of 12 months before the application was made. (2) The Minister is satisfied that during the period: (a) starting 3 years before the application was made; and (b) ending when the Minister makes a decision to grant or refuse the visa; the applicant and each member of a family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1). (3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant. (4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that: (a) compelling circumstances that affect the interests of Australia; or (b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; justify the granting of the visa. (5) In this clause: information that is false or misleading in a material particular means information that is: (a) false or misleading at the time it is given; and (b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information. (Original emphasis.) 8 Before February 2012, the department, in the course of an investigation of the affairs of a migration agency carrying on business under the name S & S Migration Services, found a file containing the appellant's details and visa application reference number on the premises of S & S Migration Services. The investigation was undertaken because that firm had a history of filing visa applications on behalf of its clients which contained false information. 9 Thereafter, the department inquired of TRA whether it had assessed the appellant's occupational qualifications and had given the appellant the TRA skills assessment number TRA09/931820664, as claimed in the appellant's visa application. The TRA reported that there was no record of TRA having made such an assessed claim or of having issued such a TRA skills assessment number. 10 On 20 February 2012, the appellant was invited to comment on this information. 11 By a decision dated 10 May 2012, a delegate of the first respondent refused the appellant's visa application, on the basis that PIC 4020(1) had not been satisfied, in that there was evidence that the appellant had "given, or caused to be given" to the Minister information which was false or misleading in a material respect.