Ahmed v Minister for Immigration

[2016] FCCA 708

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHMED & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 708

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal (now Administrative Appeals Tribunal) – whether the Tribunal misconstrued and misapplied reg.2.41 of the Migration Regulations 1994 (Cth) or failed to take into account relevant matters or breached s.359A of the Migration Act 1958 (Cth) – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.97(c), 103, 107, 109, 359AA, 359A, 360

Migration Regulations 1994 (Cth), reg.2.41

Alcan (NT) Alumina Pty Ltd & Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56
Davison v State of Queensland (2006) 226 CLR 234; [2006] HCA 21
Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32; [1991] HCA 7
Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474
Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; [2010] FCAFC 145
Minister for Immigration and Citizenship v SZLFX & Anor (2009) 238 CLR 507; [2009] HCA 31
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Senthilnathan Tharmalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 537
Shu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 791
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZGIY v Minister for Immigration and Citizenship (2008) FCAFC 68
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46
Uelese v Minister for Immigration and Border Protection (2015) 319 ALR 181; [2015] HCA 15

First Applicant: MD SHOHEL AHMED

Second Applicant: SHAMIM ARA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3147 of 2013

Judgment of: Judge Barnes

Hearing date: 19 June 2015

Delivered at: Sydney

Delivered on: 7 April 2016

REPRESENTATION

Counsel for the Applicants: Mr L Karp

Solicitors for the Applicants: Parish Patience

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3147 of 2013

MD SHOHEL AHMED

First Applicant

SHAMIM ARA

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 21 November 2013 affirming a decision of a delegate of the First Respondent to cancel the First Applicant’s Subclass 880 visa.

2. The Tribunal also found that it had no jurisdiction in relation to the Second Applicant as she had not made a valid application for review. While she was named as an applicant in the original application to this Court, this aspect of the Tribunal’s decision is not in issue. The Second Applicant was not named in the Amended Application (cf Rule 11.04 of the Federal Circuit Court Rules 2001 (Cth)). Future references to the Applicant are references to Mr Ahmed.

3. Relevantly, Mr Ahmed was granted a Class DD, Subclass 880 skilled visa on 5 January 2009.  The grant of that visa was based, in part, on the fact that he had provided a satisfactory skills assessment as a “cook” from Trades Recognition Australia (TRA).  The TRA assessment was based on information provided to TRA in a letter under the name of the “manager” of the China Town Restaurant that the Applicant had worked as a cook for over 1000 hours at the “China Town Restaurant” said to be located at 29/197 Thomas Street, Sydney. 

4. By letter of 23 June 2010 (and a further (identical) letter sent to a different address dated 3 July 2012) the Department of Immigration gave Mr Ahmed notice of intention to consider cancellation of his visa under s.109 of the Migration Act 1958 (Cth) (the Act).

5. The notice of intention to consider cancellation (the NOICC or s.107 notice) stated that a departmental investigation had confirmed that the China Town Restaurant did not exist and that the content of the documentation submitted with the application to TRA was false. The NOICC put to the Applicant that he had not complied with s.103 of the Act because he had presented a bogus document to the Department (the letter confirming that his application to TRA had been successful) which had been obtained because of a false or misleading statement.

6. The delegate gave Mr Ahmed the opportunity to comment on his possible non‑compliance with the Act and to give written reasons why his visa should not be cancelled.  On 24 July 2012 Mr Ahmed appointed a solicitor to act as his migration agent.  The solicitor sought 14 days from 24 July 2012 to respond to the notice of 3 July 2012.  On 10 August 2012 the solicitor sought a further 14 days from when the Department’s file was provided in response to a Freedom of Information request made on 24 July 2012.  On 14 August 2012 the Department informed the solicitor that any information should be provided by 17 August 2012 and that a decision would be made within four weeks.  No information or comment was provided to the Department.  

7. By decision of 12 November 2012 the delegate cancelled Mr Ahmed’s visa.

8. Mr Ahmed and Ms Ara sought review by the Tribunal.

9. The Tribunal wrote to Mr Ahmed on 6 August 2013 under s.359A of the Act inviting him to comment on information in relation to the work experience on which the TRA assessment was based and the results of the departmental investigation (carried out with respect to another visa applicant who had also relied on work experience at the China Town Restaurant). The investigation was said to have shown that the telephone number for the China Town Restaurant listed on the Applicant’s work experience reference was connected from August to December 2007 with a Sussex Street billing address; that the name China Town Restaurant was registered on the NSW Office of Fair Trading Business Name Register from December 2006 with a principal place of business listed at 29/197 Thomas Street, Sydney but that a June 2008 site visit confirmed that it was a commercial building only with no restaurant; that the numbers did not run to 29 and that this address had been confirmed as a post office box; and that the mobile number listed for Mr Xu (described as the Manager of the China Town Restaurant on the employment reference) was in fact the number for a Mr Wang, an unregistered migration agent who in 2008 had stated that he had had this telephone number since early 2006.

10. This information was said to be relevant:

    …because it may cause the Tribunal to find that the information you provided to the TRA about your employment as a cook at China Town Restaurant contained a false or misleading statement. The Tribunal may find that the TRA skills assessment was obtained because of a false or misleading statement relating to your employment as a cook at China Town Restaurant, whether or not made knowingly, and that the TRA skills assessment is a bogus document within the meaning of s. 97(c) of the Migration Act. If the Tribunal so finds, the Tribunal may find that you gave, presented or provided a bogus document to DIAC and that you breached s. 103 of the Migration Act.

11. In addition, the Tribunal put to the Applicant the fact that it was a requirement for his Class DD skilled visa that his skills had been assessed as suitable for his nominated skilled occupation by a relevant assessing authority and that no evidence had become available that the information given or used as part of the assessment was false or misleading in a material particular, but that the only information he had provided to TRA as part of his skills assessment related to his employment at China Town Restaurant and he did not provide any information or evidence about any other employment. It also put to him that in the absence of a positive skills assessment from TRA he would not have gained sufficient points to achieve the qualifying score required under the criterion for the grant of the visa in cl.880.222 of Schedule 2 to the Migration Regulations 1994 (Cth) (Migration Regulations).

12. This information was said to be relevant:

    …because the Tribunal may find that the information about your employment as a cook at China Town Restaurant was significant to you meeting various criteria for the grant of the visa.  The Tribunal may find that the TRA would not have issued you with the skills assessment and that you would not have been able to meet the requirements for the grant of the visa if you did not rely on your experience at China Town Restaurant.  This is relevant when considering the likely effect of the correct information or the genuine document on a decision to grant a visa and to the exercise of discretion as to whether or not your visa should remain cancelled.

13. The Tribunal also invited the Applicant to provide information as to why he believed the grounds of cancellation did not exist and with respect to the matters to be taken into account in deciding whether to cancel the visa. It explained that it must consider all his circumstances and the matters prescribed in reg.2.41 of the Migration Regulations (which it listed).

14. In response, the Applicant’s solicitor provided statutory declarations from Mr Ahmed and Ms Ara.  In his declaration of 19 August 2013 Mr Ahmed stated that to the best of his knowledge he had provided “correct information” to the Department, but due to the fraudulent act of the migration agent Mr Wang, it turned out to have been bogus and misleading.  He claimed that Mr Wang had “changed” his original document from the Tandoori Rasoi restaurant, where he had in fact worked, to the China Town Restaurant without his knowledge of consent, that he had not worked in the China Town Restaurant and that he would produce evidence of his work at the Tandoori Rasoi restaurant.  He also addressed his personal circumstances.  His wife provided a supporting affidavit. 

15. On 5 September 2013 Mr Ahmed and his wife were invited to a Tribunal hearing scheduled for 9 October 2013.  By letter of 1 October 2013 his solicitor sought a postponement of the hearing on the basis that the most important witness (the Applicant’s uncle) was travelling overseas.  A statutory declaration from the uncle was provided in which it was claimed that he was one of the owners of the Tandoori Rasoi restaurant in Surry Hills and that he had given the Applicant a work reference (a copy of which was provided to the Tribunal) in relation to his work experience from September 2005 to October 2006.

16. The Applicant’s solicitor stated that he was instructed that Mr Ahmed had given the Tandoori Rasoi employment reference letter to his former agent and instructed him to provide the documents to TRA in support of the skills assessment application but that, unbeknownst to Mr Ahmed, the agent had provided a different work experience letter to TRA.  It was submitted that there had been fraud by the agent in providing the alleged bogus document to TRA and that the principle in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 applied.

17. The Tribunal member refused the application for a postponement of the hearing.  A transcript of the hearing of 9 October 2013 is in evidence as an annexure to the affidavit of Winnie David, affirmed on 2 June 2015.  The Tribunal member’s attempts to contact the Applicant’s uncle by telephone during the hearing were unsuccessful.  After evidence was taken from the Applicant and his wife, the Tribunal adjourned the hearing until 30 October 2013.  The transcript of the hearing of 30 October 2013 is also in evidence as an annexure to Ms David’s affidavit. 

18. In the interim, information relating to the Applicant’s circumstances, subsequent employment in Australia and character was provided to the Tribunal. 

19. Before the Tribunal the Applicant claimed that he had not worked at China Town Restaurant, that he had worked at the Tandoori Rasoi restaurant, but that his agent Mr Wang gave him a blank TRA application form and he signed it because he trusted Mr Wang. 

20. He claimed that while he had worked in his uncle’s restaurant for over a year he had not been paid for his work.  He conceded that there was no documentation evidencing such employment.  He gave oral evidence about the days and hours he claimed he worked at the Tandoori Rasoi. 

21. The Applicant’s uncle also gave evidence at the adjourned Tribunal hearing, including in relation to the period and hours worked by the Applicant at the Tandoori Rasoi restaurant. 

22. As discussed further below, during the hearing on 30 October 2013 the Tribunal put to the Applicant apparent inconsistencies between his evidence and that of his uncle in relation to the opening and closing times of the Tandoori Rasoi restaurant, when he started and finished working there and the hours he worked.

23. The Applicant provided additional documents about his personal circumstances and the situation in his home country of Bangladesh in support of his application. 

24. In November 2013, after the Tribunal raised an issue about the validity of Ms Ara’s review application, the adviser agreed that she could not be part of the review application. 

The Tribunal Decision

1. In its reasons for decision the Tribunal found that it had no jurisdiction in relation to Ms Ara as she had to make a separate review application in relation to her visa cancellation.  No issue is taken with this aspect of the Tribunal decision. 

2. The Tribunal found that the NOICC issued to Mr Ahmed was valid and complied with the applicable statutory requirements and that Mr Ahmed had failed to comply with s.103 of the Migration Act in the way described in the NOICC. Section 103 provided 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.

3. Relevantly, bogus document was, at the time, defined in s.97 of the Act as follows:

   “bogus document”, in relation to a person, means a document that the Minister reasonably suspects is a document that:

   …

   (c) was obtained because of a false or misleading statement, whether or not made knowingly.

4. The Tribunal found that when making his application for the visa, Mr Ahmed had provided a copy of his TRA assessment showing that his skills had been assessed as suitable for the nominated occupation of cook and that the TRA application form of 1 May 2007 indicated that he had relied on his ongoing employment as a cook at China Town Restaurant and an employment reference from China Town Restaurant signed by Michael Xu on 30 April 2007 referring to his employment as a cook between 12 February 2006 “to now”.

5. The Tribunal described the results of the departmental investigation in relation to the “China Town Restaurant” which it found suggested that no such restaurant existed and that the content of the employment letter was false. It recorded that the NOICC (to which there had been no response) had suggested that the Applicant had not complied with s.103 of the Act because his skills assessment was obtained because of a false or misleading statement within s.97(c) of the Act.

6. The Tribunal considered the Applicant’s submissions, including that to the best of his knowledge he had provided correct information to the Department and that due to the fraudulent act of his migration agent Mr Wang (whom he did not know was not registered) it turned out to have been bogus and misleading.  It recorded his claim that he was a victim of his agent’s dishonesty in changing the work reference document provided to TRA from the document from the Tandoori Rasoi restaurant to the China Town document which he claimed was submitted to TRA without his knowledge or consent.

7. Having regard to the application for skills assessment submitted to TRA, the Tribunal found that Mr Ahmed had relied on his employment as a cook at the China Town Restaurant when applying for the skills assessment.  It found that he had confirmed in his oral evidence that he never worked in that restaurant.  In light of Mr Ahmed’s evidence and the Department’s investigation, the Tribunal found that Mr Ahmed did not work at China Town Restaurant.  It found that he gave TRA information relating to his employment at China Town Restaurant that was false or misleading.  The Tribunal concluded that the TRA assessment was obtained because of a false or misleading statement.

8. The Tribunal addressed Mr Ahmed’s claim that the China Town reference was substituted by his then migration agent unbeknownst to him.  It indicated that it had considerable difficulty accepting this claim in circumstances where the TRA skills assessment application was signed by Mr Ahmed and he had the opportunity (and perhaps the responsibility) to ensure that the content of the document he had signed was correct and accurate.  It was unclear to the Tribunal why Mr Ahmed would sign a blank form (as he claimed) and take no steps to ensure that the information in that form was correct.  In any event, the Tribunal had regard to the fact that subsection (c) of the definition of “bogus document” in s.97 expressly stated that a document may be bogus if obtained because of a false or misleading statement “whether or not made knowingly”. 

9. Hence the Tribunal found the TRA assessment was a bogus document within the meaning of s.97(c) of the Act, whether or not Mr Ahmed was aware of his agent’s actions. It also found that the TRA assessment was given to an officer or the Minister and thus that the Applicant had not complied with s.103 of the Act and that grounds existed for cancellation of the visa in the way described in the s.107 notice.

10. The Tribunal acknowledged that as it had decided there was non-compliance in the way described in the s.107 notice, it was necessary to consider whether it was appropriate that the visa be cancelled under s.109 of the Act. It recorded that the power in s.109 was discretionary and that in exercising this power the Tribunal must consider the Applicant’s response, if any, to the s.107 notice and must have regard to the prescribed circumstances set out in reg.2.41 of the Migration Regulations.

11. The Tribunal addressed each of the matters listed in reg.2.41 of the Migration Regulations. Relevantly, having regard to the grounds relied on in these proceedings, in relation to the matters listed in reg.2.41(a) (which requires that regard be had to “the correct information”) the Tribunal referred to the claims made in Mr Ahmed’s skills assessment application and his reliance on work experience at the China Town Restaurant.  It found that he obtained the TRA skills assessment on the basis of that employment, but that the correct information was that “the applicant did not work at that restaurant”.

12. The Tribunal acknowledged Mr Ahmed’s claims that the correct information was that he worked at another restaurant (the Tandoori Rasoi) and that he had sufficient work experience to obtain the skills assessment.  It outlined his claims about working at the Tandoori Rasoi restaurant between 2005 and 2006 and described its questioning of Mr Ahmed and his uncle about such employment.  It observed that there were a number of inconsistencies in their evidence (which it described), but stated that it had formed the view that these were relatively minor and that “overall” the Applicant and his uncle had given consistent evidence about the Applicant’s employment in the Tandoori Rasoi restaurant.  The Tribunal considered it plausible that, as the Applicant claimed, he may have completed the workplace training he was required to undertake as part of his studies in his uncle’s restaurant and that this may have been unpaid in return for accommodation.  It had regard to the fact that the Applicant had provided evidence of having lived at his uncle’s residence during the period in question.  Having regard to the totality of the evidence before it, the Tribunal formed the view that the Applicant did work at the Tandoori Rasoi restaurant. 

1. Nonetheless it continued:

   However – and this is of significance in the circumstances of this case – it is impossible for the Tribunal to determine whether such work was carried out between September 2005 and October 2006 as the applicant claims.  That is, while the Tribunal accepts that the applicant is likely to have worked at Tandoori Rasoi at some period, the Tribunal cannot be satisfied on the evidence before it that he had worked there for the period he claims, so that he had completed the 900 hours of relevant work experience as a cook at the time he made the application for the skills assessment.

2. Under the heading “the content of the genuine document (if any)” (which is the prescribed circumstance set out in reg.2.41(b) of the Regulations) the Tribunal stated briefly that:

   The content of the genuine document is that the applicant did not carry out employment as a cook at the China Town Restaurant. 

3. The Tribunal then considered the matters listed in reg.2.41(c) which refers to the “likely effect” on a decision to grant a visa to or immigration clear the visa holder “of the correct information or the genuine document”.  In this context, the Tribunal referred to the fact that the Applicant’s employment was relevant to the criterion for a Subclass 880 visa in cl.880.230 which required him to obtain a skills assessment and that no evidence had become available that the information given or used as part of the assessment of his skills was false or misleading in a material particular. 

4. The Tribunal recorded that the Applicant’s skills assessment was based on his claimed employment at China Town Restaurant, that he was not employed there and that the information relating to his employment as a cook at the China Town Restaurant was false or misleading in a material particular.  The Tribunal found that if this information had been available to TRA, the Applicant would not have been issued with the skills assessment on the basis of that non-existent work experience.  It further found that if the correct information was known, the delegate would likely have made a finding that evidence had become available that the information given or used as part of the assessment of the Applicant’s skills was false or misleading in a material particular so that the Applicant would not have been able to meet the requirements of cl.880.230(1) and in that case the visa would not have been granted. 

5. In this context, the Tribunal also considered the Applicant’s claims that he was employed at the Tandoori Rasoi restaurant and had the requisite work experience, but had regard to the fact that there was no mention of that employment in the TRA assessment application (in which the only employment on which the Applicant relied was the employment at the China Town Restaurant which did not take place).  It found that whether or not the Applicant had worked at another restaurant, such employment was not relied upon to obtain the skills assessment and that if the correct information about the employment at China Town Restaurant was known, the visa would not have been granted.

6. The Tribunal also considered the reg.2.41(d) factor, which relates to the circumstances in which the non-compliance occurred. In that context it addressed the Applicant’s claim that he provided genuine documents and information to his migration agent, that he was a victim of fraudulent conduct of the migration agent who had falsified his employment reference, and that he did not know about this until he applied for citizenship. The Tribunal did not accept the Applicant’s evidence in this respect, finding that it was of considerable concern that the scenario suggested by the Applicant appeared to be “meaningless”.  It found that he could not offer a satisfactory explanation as to why the agent would falsify his employment claims if he did have the relevant and adequate work experience in another restaurant and had provided evidence of such to the agent.  It found that the adviser’s suggestion that the agent may have lost the genuine employment reference was “implausible”, as the agent could simply have asked for a fresh copy of the genuine reference rather than go to the trouble of creating an entirely falsified employment claim relating to a non-existent restaurant.

7. The Tribunal was also concerned that the Applicant had signed a blank TRA application form without ensuring the accuracy of the submitted information.  It found that the fact he did sign such a blank form and his inability to explain to the Tribunal’s satisfaction why the agent would falsify an employment claim where genuine employment was available, suggested that the Applicant did not have adequate work experience (either in terms of duration or the type of work or for some other reason) at the Tandoori Rasoi at the time when the application to TRA was made.  The Tribunal was of the view that this was the reason the Applicant approached the agent and the agent falsified the employment claim and reference.  It did not accept that the Applicant was innocent of the fraud and unaware that the agent had submitted a fraudulent employment reference to TRA.  It formed the view that the Applicant was involved in the commission of fraud.

8. The Tribunal went on to address in some detail each of the other circumstances prescribed in reg.2.41(e) to (k) as well as other matters, including departmental policy and the circumstances of the Applicant’s family and the Applicant’s claims about the impact of the situation in Bangladesh.

9. The Tribunal stated that it had considered the factors identified by the legislation and policy and all of the Applicant’s circumstances, but had found that the Applicant was not employed at China Town Restaurant as he claimed in the application for the skills assessment.  It found that this information was central to his ability to obtain the skills assessment and the visa and that the effect of the correct information would have resulted in the application being refused because the Applicant would not have obtained the skills assessment and also because evidence was available that the information given or used as part of the assessment of the Applicant’s skills was false or misleading in a material particular and that the Applicant may not have satisfied cl.880.230. 

10. The Tribunal reiterated that it accepted that Mr Ahmed had “carried out some employment” at another restaurant, but that it had rejected his claims that he was entirely unfamiliar with the actions of his migration agent and had no involvement in the provision of the false or misleading information.  It repeated its findings that he had not offered a meaningful explanation as to why the agent would falsify his employment claims if he did have the requisite work experience at another restaurant and that his evidence about signing a blank TRA assessment application form and taking no steps to ensure the accuracy of its contents was problematic.  The Tribunal stated that it had formed the view that the Applicant was most likely aware, and certainly should have been aware, of the reference to his employment in China Town Restaurant in the TRA application form. 

11. The Tribunal went on to address the other relevant factors by way of a concluding summary.  It indicated that it had weighed the factors in relation to the Applicant’s circumstances and those of his family (some of which were favourable to the Applicant) against the adverse findings it had made regarding the provision of a bogus document.  Despite finding that the best interests of the Applicant’s child may be that the family remain in Australia, the Tribunal stated that it had formed the view that the breach had been a serious one and, significantly, that it was central to the Applicant’s ability to be granted the skilled visa and, essentially, if the correct information was known he would not have been granted the visa.  The Tribunal determined that the adverse circumstances outweighed the circumstances favouring the Applicant in exercising the discretion as to whether to cancel the visa.  It concluded that in all the circumstances the visa previously held by the Applicant should remain cancelled. 

12. Mr Ahmed and Ms Ara sought review by Application filed in this court on 17 December 2013.  Mr Ahmed now relies on an Amended Application filed on 19 June 2015.  There are three grounds in the Amended Application.

Ground 1: error in the construction and application of the words “genuine document” in reg.2.41(b) of the Migration Regulations

1. Ground 1 in the Amended Application is that the Tribunal misconstrued and misapplied the words “genuine document” in reg.2.41(b) of the Migration Regulations. The particulars to this ground are as follows:

   (a) Error in construing those words as encompassing information rather than documents.

   (b) Error in construing those words as including information that was not contained in any existing work reference letter.

   (c) Failing to consider the work reference letter from the Tandoori Rasoi Restaurant.

2. The Applicant submitted that the Tribunal misconstrued and misapplied the words “genuine document” in reg.2.41(b) of the Act which, relevantly, required regard to be had to “the content of the genuine document (if any)” as one of the prescribed circumstances to which the Tribunal had to have regard in considering whether to exercise the discretion to cancel his visa under s.109(1) of the Migration Act. It was contended that having regard to the principles in Alcan (NT) Alumina Pty Ltd & Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] and Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [24] to [26] and the words of reg.2.41(b) considered in context, the words “genuine document” in reg.2.41(b) were used to distinguish a real document from that which was a “bogus” document within s.97 of the Act. However the Applicant submitted that reg.2.41(b) did not extend to encompass a document that did not exist or words that were not in a document. It was further submitted that, considered in context, such words referred to the existence of a document relating to the same subject matter as the bogus document that was not falsified or issued as a result of false or misleading information.

3. Under the heading “the content of the genuine document (if any)” the Tribunal found that “[t]he content of the genuine document is that the applicant did not carry out employment as a cook at the China Town Restaurant”. The Applicant submitted that the Tribunal had misconstrued the words “genuine document” in reg.2.41(b) as encompassing what was not in the document submitted to the TRA or in any document in the control or possession of the Applicant and that it had misapplied the words in failing to consider the letter from the Tandoori Rasoi restaurant in the context of finding that Mr Ahmed had undertaken work experience.

4. The first aspect of this ground is the contention that the Tribunal erred in finding that “the content of the genuine document is that the Applicant did not carry out employment as a cook at the China Town restaurant” because there was no document that stated this as a fact (particulars (a) and (b)).  

5. The second aspect (particular (c)) is that the only “genuine” document that stated an accepted fact about the Applicant’s work experience was the work reference letter from the Tandoori Rasoi restaurant and hence that the Tribunal had to have regard to the Tandoori Rasoi letter under reg.2.41(b) of the Regulations.

6. The Applicant submitted that considering the concept “genuine document” in context, it could be seen that it referred to something tangible which contained information and stood in distinction to the term “bogus document” in s.97.  It was submitted that this notion would extend to all documents in relation to the same subject matter as the bogus document that were not counterfeit or altered or obtained by false or misleading information (such as what was said to be the genuine employment reference document from the Tandoori Rasoi restaurant which related to the Applicant’s work experience).  

7. Counsel for the Applicant also contended that the Tribunal had not only found that the TRA assessment was a bogus document, but had also implicitly found that the China Town reference given to the TRA was itself a bogus document.  It was submitted that on this basis the Tandoori Rasoi restaurant document could be seen as the “genuine document” for the purposes of reg.2.41(b) of the Migration Regulations (in contradistinction to the “bogus” China Town reference).

8. It was acknowledged that the Tribunal found that it could not determine whether the Applicant had worked for the period stated in the letter from the Tandoori Rasoi restaurant, but pointed out that it had not found that the Tandoori Rasoi work reference letter was “bogus” within the meaning of s.97 of the Act. The Applicant submitted that had these matters been considered in combination with the other reg.2.41 considerations, the Tribunal may have found that the visa should not have been cancelled.

9. The First Respondent submitted that whether or not the China Town reference would meet the description of a bogus document in s.97, the Tribunal had made no finding to this effect and had clearly and repeatedly concluded that the bogus document was the TRA assessment.  Thus it was contended that to the extent that this ground relied on an acceptance that the Tribunal made a finding that the China Town Restaurant reference was in itself a bogus document, this should be rejected.

10. More generally, the First Respondent submitted that the court should not accept the Applicant’s argument that any document that the Tribunal did not reject as a non-genuine document must fall for consideration under reg.2.41(b). It was submitted that reg.2.41(b) must have a more limited operation than requiring the Tribunal to have regard to all the evidence before the Tribunal and that the words in reg.2.41(b) plainly hypothesised that, in some cases, there may be a genuine version of the document found to be a bogus document.

11. However it was pointed out that in this case the relevant bogus document was found to be the TRA assessment and there was no suggestion that there was any genuine TRA assessment (in the sense of a TRA assessment not based on false or misleading information).  

12. It was submitted that the words of reg.2.41(b) could not apply to the reference from the Tandoori Rasoi restaurant, as on no view was such document a genuine TRA assessment in respect of the Applicant. Rather, it was said to be simply a piece of evidence submitted by the Applicant to the Tribunal that the Tribunal accepted in some respects. The First Respondent contended that such a document could not be said to engage reg.2.41(b) unless it was a genuine version of the document the Tribunal found was a bogus document. It was submitted that such an approach to the construction of reg.2.41(b) was consistent with a purposive interpretation of the Regulation.

13. The First Respondent also pointed out that the Tribunal had made no finding that the Tandoori Rasoi reference was correct and, indeed, had indicated that it did not accept certain of the claims made in that document. 

14. The First Respondent conceded that, strictly speaking, and contrary to the approach taken by the Tribunal, on this view reg.2.41(b) was inapplicable on the facts of this case, in that there was no genuine TRA assessment concerning the Applicant. However it was submitted that what the Tribunal had stated in considering the factor in reg.2.41(b) should not be taken to indicate that it had in mind some non-existent hypothetical genuine document. It was acknowledged that the Tribunal’s general statement that the content of the genuine document was that the Applicant did not carry out employment as a cook at the China Town Restaurant was poorly expressed, but submitted that on a fair reading of the Tribunal’s decision as a whole in accordance with the principles in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271-272, the Tribunal should be taken as doing no more than noting that the Applicant had not worked at the China Town Restaurant.

15. In the alternative, the First Respondent submitted that if the court was of the view that the Tribunal had misconstrued reg.2.41(b), no relief should be granted as it was clear on the facts found by the Tribunal that reg.2.41(b) could not operate in the Applicant’s favour and that even if there was some error in construction by the Tribunal it was immaterial in the circumstances as it could not have affected the outcome of the Tribunal’s decision (see Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474 at 477 and SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [27] to [29]).

16. It was also pointed out that in the context of considering the other reg.2.41 factors as part of all the prescribed circumstances, the Tribunal had considered the Applicant’s claims and the letter about employment at the Tandoori Rasoi restaurant, as well as the information relating to his claimed employment as a cook at the China Town Restaurant.

Consideration

1. As stated by the plurality in Alcan at [47]:

   …the task of statutory construction must begin with a consideration of the text itself.  Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.  The language which has actually been employed in the text of legislation is the surest guide to legislative intention.  The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy (footnotes omitted).

2. In Certain Lloyd’s Underwriters French CJ and Hayne J explained (at [24]-[26]) the relevance of context and purpose (as referred to in Alcan) as follows:

   24. The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (emphasis added).  That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole”, and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.

   25. Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials.  The purpose of a statute resides in its text and structure.  Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted.  It is important in this respect, as in others, to recognise that to speak of legislative “intention” is to use a metaphor.  Use of that metaphor must not mislead.  “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (emphasis added). And as the plurality went on to say in Project Blue Sky:

   Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.  But not always.  The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may requires the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. 

   To similar effect, the majority in Lacey v A-G (Qld) said:

   Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. (footnote omitted)

   The search for legal meaning involves application of the processes of statutory construction.  The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.

   26. A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose.  The purpose of legislation must be derived from what the legislature says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.  As Spigelman CJ, writing extra-curially, correctly said:

   Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation.  It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case. (emphasis added)

   And as the plurality said in Australian Education Union v Department of Education and Children’s Services:

   In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose. (footnote omitted). [footnotes omitted]

1. In my view, in its terms and seen in context as discussed below, reg.2.41(b) does not extend to encompass any document before the Tribunal that was not found to be a bogus document by the Tribunal. The text of reg.2.41(b) clearly envisages that there will not be a “genuine document” in every case.  It refers to “the content of the genuine document (if any)” (emphasis added). This does not support a contention that any item of written information which is before the Tribunal and is not found to be bogus is within reg.2.41(b).

2. Moreover, it is clear from the text, context and purpose of reg.2.41(b) that the expression “the genuine document” is used in contradistinction to the concept of a document found by the Tribunal to be a bogus document. The language employed in the text of reg.2.41(b) supports such a construction. Such a construction corresponds with the grammatical meaning of the provision in this instance. It is also consistent with the language and purpose of the regulation as a whole and its operation in the context of the relevant cancellation provisions within the Migration Act.

3. Regulation 2.41(b) is one of the prescribed circumstances that the decision-maker must take into account under s.109(1) of the Act in determining whether to exercise the discretion to cancel a visa in circumstances where there has been non-compliance by the visa holder with one of the requirements in ss.101 to 105 of the Act. Those provisions, in general terms, involve a requirement that a visa application not be based on incorrect information (as the heading to Subdivision C of Division 3 of Part 2 of the Act indicates). Section 103 provides that:

   Bogus documents not to be given etc.

   A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided. 

4. Sections 101, 102, 104 and 105 otherwise impose requirements to provide correct information in visa applications and on passenger cards, to notify changes in circumstances rendering such information incorrect and in relation to obligations when a non-citizen becomes aware of incorrect answers and information.  However the only provision in this part of the Act that refers to a “document” is s.103.

5. At the relevant time, bogus document was defined in s.97 of the Act 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.

6. As indicated, Subdivision C of Division 3 of Part 2 of the Act contains provisions intended to regulate the circumstances in which visas based on incorrect information in the sense specified in ss.101 - 105 may be cancelled. Under s.107 of the Act the Minister must give the visa holder a notice of intention to consider cancellation including (inter alia) sufficient particulars of the possible non-compliance to enable the visa holder to identify and address the issues (see s.107(1)(a) and Shu v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 791). In deciding whether there is non-compliance the Minister (or the Tribunal) is to consider any response to the s.107 notice and must decide whether there was non-compliance “in the way described in the notice” (s.108). 

7. Thus in this case the Tribunal found that, as described in the s.107 notice, there was non-compliance with s.103 of the Act on the basis that the TRA assessment was a bogus document within s.97(c) of the Act that was given to an officer or the Minister.

8. Under s.109(1) of the Act:

   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.

9. Regulation 2.41 contains the prescribed circumstances to which regard must be had under s.109(1)(c) of the Act.

10. As the Full Court of the Federal Court stated in Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; [2010] FCAFC 145 at [57]-[60]:

    57. Section 109(1)(c) of the Act obliges the Tribunal to “have regard to” the prescribed circumstances set out in reg 2.41. The consideration of those prescribed circumstances is thus a jurisdictional prerequisite to the exercise of the Ministerial discretion to cancel a visa under s 109. In order to comply with that prerequisite, the decision-maker must engage in what has been described as “an active intellectual process” in which each of the prescribed circumstances receives his or her “genuine” consideration: Tickner at 462 (per Black CJ) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [105] (p 540) (per Gleeson CJ and Gummow J).

    58. In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 41 (per Mason J). The failure to give any weight to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all.

    59. Similarly, a decision-maker does not take into account a consideration that he or she must take into account if he or she simply dismisses it as irrelevant.  On the other hand, it does not follow that a decision-maker who genuinely considers a factor only to dismiss it as having no application or significance in the circumstances of the particular case will have committed an error.  A decision-maker is entitled to be brief in his or her consideration of a matter which has little or no practical relevance to the circumstances of a particular case.  A court would not necessarily infer from the failure of a decision-maker to expressly refer to such a matter in its reasons for decision that the matter had been overlooked.  But if it is apparent that the particular matter has been given cursory consideration only so that it may simply be cast aside, despite its apparent relevance, then it may be inferred that the matter has not in fact been taken into account in arriving at the relevant decision: Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499 at [62] (p 512) (per Hely J). Whether that inference should be drawn will depend on the circumstances of the particular case.

    60. In some cases it may be apparent that amongst the factors to which a decision-maker is bound to have regard, there is one factor (or perhaps more than one) which is critical or fundamental to the making of the decision in question.  This was true of the particular matter referred to by Mason J in The Queen v Toohey; Ex parte Meneling Station Pty Ltd [1982] HCA 69; (1982) 158 CLR 327 at 338. As his Honour’s reasons in The Queen v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329 show, the relevant statutory provisions may make clear that a particular factor is “a fundamental matter for consideration”.  But the converse is also true.  The relevant statutory provisions may show that a particular matter to which a decision-maker must have regard is not fundamental to the decision-making process in the sense discussed by his Honour: see, for example, Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; (2001) 109 FCR 152 at [57] (p 164) (per Sackville J). (emphasis added)

11. However, their Honours went on to point out that the expression “have regard to” is capable of different meanings depending on its context and found (at [61] and see [62]) that in this context s.109(1)(c) of the Act merely required the decision-maker “to consider, rather than treat … as fundamental elements in the decision-making process” each of the criteria in reg.2.41. As the Full Court pointed out at [62], not all of these criteria “will be central or fundamental to every case in which the Minister is called upon to make a decision under s 109(1) of the Act”.

12. Consistent with the fact that reg.2.41(b) refers to “the genuine document (if any)”, the words in reg.2.41(b) in themselves, and seen in the context of the relevant part of Subdivision C of Division 3 of Part 2 of the Act, plainly envisage that in some, but not all, cases there may be a genuine version of a document found to be bogus within ss.103 and 97 of the Act.

13. Thus, I am not persuaded that the text of reg.2.41(b) considered in context, including the language and purpose of the provision itself and the relevant part of the Act, extends to require consideration to be given (in the context of the exercise of the s.109 discretion to cancel a visa) to any document before the decision-maker that has not been found to be a bogus document or any document not found to be falsified or issued as a result of false or misleading information broadly relating to the subject matter of the bogus document (such as a reference relating to work experience where a TRA assessment has been found to be a bogus document). Rather, it requires that regard be had to the genuine version (if any) of a document found to be bogus (such as, for example, a genuine document recording academic or language achievement in contrast to a “bogus” document purporting to do so). Other documents may fall for consideration if relevant in relation to the other prescribed circumstances in reg.2.41 but a failure to consider them in the context of the matter listed under reg.2.41(b) is not indicative of misconstruction or misapplication of the words “genuine document” in reg.2.41(b).

14. The bogus document in this case was the TRA assessment.  There was no genuine TRA assessment.  The Tribunal did not (either expressly or implicitly) find that the China Town reference was a bogus document.  Rather, it contained the false or misleading statement on which the “bogus” TRA assessment was based. Hence, even if the Tandoori Rasoi work reference was a genuine document in the sense that the Tribunal accepted that it was signed by the Applicant’s uncle, reg.2.41(b) did not extend to require consideration of the Tandoori Rasoi work reference as “the genuine document (if any)” (emphasis added).  In any event, the Tribunal expressed a lack of satisfaction that the Applicant had worked at the Tandoori Rasoi for the period claimed or that he had completed 900 hours of work experience prior to the skills assessment application (matters attested to in the Tandoori Rasoi reference) and made no finding that the Tandoori Rasoi reference was correct. 

15. Insofar as the Applicant submitted that the Tribunal erred in failing to consider the work reference letter from the Tandoori Rasoi restaurant under reg.2.41(b) this ground is not made out.

16. That does not mean that the Tribunal was under no obligation to consider this evidence in considering whether to cancel Mr Ahmed’s visa. The Tribunal (correctly) considered this evidence and the Applicant’s claims to have worked at the Tandoori Rasoi restaurant in the context of considering other prescribed circumstances specified in reg.2.41, in particular regs.2.41(a), (c) and (d) (and see Khadgi at [68]-[71]). It cannot be said that the Tribunal failed to have regard to that evidence in exercising the discretionary power in s.109 of the Act.

17. Strictly speaking, the Tribunal did fall into error insofar as it construed reg.2.41(b) as applicable in circumstances where there was no document that was “the genuine document”, although (contrary to the Applicant’s contention) the error did not lie in construing the words “genuine document” as including information not contained in any existing work reference letter, but rather in considering reg.2.41(b) to be applicable where there was no “genuine” version of the TRA skills assessment. 

18. I am not persuaded by the First Respondent’s contention that on a fair reading the Tribunal was doing no more than noting that the Applicant did not work at the China Town Restaurant in the finding it made under the heading “the content of the genuine document (if any)”. The Tribunal listed (as headings) each of the reg.2.41 considerations and made observations and findings in respect of each such consideration (see Khadgi at [70]). In relation to reg.2.41(b) it made a finding expressed in terms of “the content of the genuine document”, rather than an observation that the Applicant did not carry out employment as a cook at the China Town Restaurant.  It did so notwithstanding that there was no genuine version of the TRA skills assessment. 

19. However such error was immaterial. It could not have affected the outcome of the Tribunal’s decision, given that the information referred to under the heading relating to the reg.2.41(b) factor was (properly) considered by the Tribunal in the context of addressing the reg.2.41(a) and (c) factors. In that context it made the (same) finding that the Applicant did not carry out employment as a cook at the China Town Restaurant. The brief repetition of the Tribunal’s finding that the Applicant did not carry out employment as a cook at the China Town Restaurant in the context of addressing the reg.2.41(b) factor could not have affected the outcome of the Tribunal’s decision. The Tribunal had regard to all the mandatory criteria. While it misdescribed information as the content of “the genuine document”, this was information to which it was required to have regard under reg.2.41. It did so. The Tribunal also considered the Applicant’s claims about work at the Tandoori Rasoi restaurant in the context of considering other reg.2.41 factors. I am not satisfied that the Tribunal’s error amounted to jurisdictional error. Even if there was, technically, a misconstruction or misapplication of reg.2.41(b) on the basis contended for in particulars (a) and (b) to ground 1 amounting to jurisdictional error, I would refuse relief, as such error was immaterial and could not have affected the Tribunal’s decision (see Jankovic at 477).

Ground 2 – failure to complete the exercise of jurisdiction

1. The second ground is that the Tribunal failed to complete the exercise of its jurisdiction.  The particulars to this ground are that the Tribunal failed “in considering matters relevant to Migration Regulation 2.41(c), to take into account its finding that the applicant had completed some work experience at the Tandoori Rasoi Restaurant”.

2. Regulation 2.41(c) prescribes as a matter that must be taken into account by the decision-maker:

   the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document.

3. In considering the matters listed in reg.2.41(c) the Tribunal addressed the Applicant’s claims that he was employed at the Tandoori Rasoi restaurant and that he had the requisite work experience. However it had regard to the fact that there was no mention of that employment in the TRA assessment application (which relied on the Applicant’s claimed employment at the China Town Restaurant which the Tribunal found did not take place). The Tribunal concluded that whether or not the Applicant had worked at another restaurant, such other employment was not relied upon to obtain the skills assessment. It found that if the correct information about employment at China Town Restaurant (that is, that the Applicant was not employed there) had been known, the visa would not have been granted to the Applicant.

4. The Applicant contended that in making this finding the Tribunal had not asked the correct question and had ignored both the correct information, which was said to be that the Applicant had worked at the Tandoori Rasoi Restaurant, and/or the genuine document consisting of the Tandoori Rasoi letter.

5. The Applicant submitted that the “correct information” was not only that the TRA assessment was obtained by the provision of false or misleading information but also that he did work at the Tandoori Rasoi restaurant.  It was submitted that the concept of “correct information” extended to all correct information before the Tribunal relevant to the question to be considered pursuant to reg.2.41(c).

6. It was submitted that the Tribunal was required as a matter of law to take into account the facts it accepted in reaching its conclusions and in the context of the applicable statutory regime to consider the information it accepted (see Senthilnathan Tharmalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 537 per Lindgren J at 23-24). In essence, it was submitted that as the Tribunal found that the Applicant did work at the Tandoori Rasoi restaurant, accordingly this was “the correct information” so far as the Applicant’s work experience was concerned. 

7. The Applicant also reiterated that (as contended in relation to ground 1) the “genuine document” in this context was the letter from the Tandoori Rasoi. 

8. It was suggested that had the Tandoori Rasoi reference been submitted to TRA, it may have been satisfied (even though the Tribunal was not), that the Applicant had completed the necessary 900 hours work experience at the Tandoori Rasoi restaurant and issued a skills assessment on this basis.  It appeared to be contended on this basis that the likely effect on a decision to grant a visa would have been that the visa would have been granted.  It was also submitted that this was a factor that may have persuaded the Tribunal (in combination with the other factors) that the Applicant’s visa should not be cancelled. 

9. The First Respondent reiterated the contention that there was no “genuine document” for the purposes of reg.2.41. Insofar as the Tribunal was required to have regard to the likely effect on a decision to grant a visa of “the correct information”, it was submitted that in the context of reg.2.41(c) such a concept must contrast with the information that was given that was incorrect. In this case the “incorrect” information was said to be the information in the application for a skills assessment that the Applicant had worked at the China Town Restaurant from February 2006 until April 2007, whereas the “correct information” (as the Tribunal recognised) was that the Applicant had not worked at the China Town Restaurant during this period. It was submitted that the Tribunal had had regard to this information as required under reg.2.41(c).

10. The First Respondent also submitted that the Applicant’s contention that the correct information was that the Applicant had worked at the Tandoori Rasoi restaurant could not succeed in circumstances such as the present, where the Tribunal had not been satisfied as to the period or hours the Applicant worked there, so that on the Tribunal findings the only relevant “correct information” for the purposes of this part of reg.2.41 was that the Applicant did not work at the China Town Restaurant during the relevant period.

Consideration

1. First, for the reasons discussed above in relation to reg.2.41(b), I am not persuaded that the concept of “the genuine document” encompasses documents other than the genuine version (if any) of the document found to be bogus.  In this case the TRA skills assessment was the relevant bogus document.  There was no “genuine” TRA skills assessment.  The Tandoori Rasoi letter was not “the genuine document”. 

2. Nor am I persuaded that in the context of reg.2.41(c) the words “the correct information” necessarily encompassed the Tandoori Rasoi reference. First, in its terms and considered in the context of reg.2.41 and the statutory regime for cancellation of visas in circumstances of non-compliance with sections of the Act that relate to the provision of “incorrect” information (see in particular ss.99-102 of the Act), the concept of “the correct information” (emphasis added) in reg.2.41(c) is clearly used in contradistinction to any information that was found to be incorrect in the context of the decision-maker’s consideration of the statutory grounds for cancellation of a visa. Regulation 2.41(c) is to be seen as requiring the Tribunal to consider (in addition to what was the correct information as required under reg.2.41(a) and what was the content of the genuine document (if any) as required under reg.2.41(b)) the likely effect on a decision to grant a visa had such correct information or such genuine document been available to a decision-maker considering whether to grant a visa of the class that was granted to the visa holder. Insofar as there was “correct information” in this case, it was, as the Tribunal recognised, that the Applicant did not work at the China Town restaurant. 

1. Such an interpretation is consistent with the fact that reg.2.41(c) requires consideration to be given to the likely effect on a decision to grant a visa of the correct information. As the Tribunal observed, the only employment on which the Applicant relied to obtain the TRA skills assessment was employment at China Town Restaurant. The Tribunal addressed the fact that if the correct information relating to the Applicant’s claimed employment at China Town Restaurant was known, the delegate would have been likely to make findings that would have meant that the visa would not have been granted. As the First Respondent submitted, the only (relevant) correct information in the circumstances of this case and in the context of reg.2.41(c) was that the Applicant did not work at the China Town Restaurant.

2. In any event, even if the concept of the correct “information” would encompass the information before the Tribunal about the Applicant’s work at the Tandoori Rasoi restaurant, the Tribunal did not fail to take into account the Applicant’s claims and evidence about working at the Tandoori Rasoi restaurant, albeit it did so primarily in the context of considering reg.2.41(a) which refers generally to “the correct information”. 

3. The Tribunal acknowledged that the Applicant claimed that the correct information was that he worked at another restaurant (the Tandoori Rasoi) and that he had sufficient work experience to obtain the skills assessment, but found, for reasons which it gave, that while it accepted he did work at the Tandoori Rasoi it could not be satisfied on the evidence before it that he worked there for the period he claimed so that he had completed the 900 hours of relevant work experience as a cook at the time he made the skills assessment application. In the context of considering reg.2.41(c) it properly had regard to the fact that employment at the Tandoori Rasoi restaurant was not in fact relied on to obtain the skills assessment.

4. In these circumstances it was not a jurisdictional error to fail to repeat the finding made in the context of the reg.2.41(a) factor as one of the matters the Tribunal took into account in its consideration under the heading reflecting the reg.2.41(c) factor which related to the likely effect on a decision to grant a visa of the correct information.

5. Moreover, given that the Tribunal had also made a finding that it was not satisfied that the Applicant had completed the requisite 900 hours of relevant work experience at the Tandoori Rasoi Restaurant by the time he made the skills assessment application, I do not accept that the Tribunal was obliged (in considering reg.2.41(c)) to engage in speculation about whether, had the Applicant relied on Tandoori Rasoi work experience in his skills assessment application, TRA may (contrary to the Tribunal’s view on the evidence) have been likely to have made a positive skills assessment such that the visa would likely be granted.

6. Ground 2 is not made out. 

Ground 3 – section 359A

1. The third ground is that the Tribunal breached s.359A of the Act by failing to comply with ss.359AA(1)(b)(ii) and 359AA(1)(b)(iii). In oral submissions counsel for the Applicant indicated that the claim in relation to s.359AA(1)(b)(ii) was not pressed.

2. The particulars in relation to s.359AA(1)(b)(iii) are that “In conducting its hearing under s 360 of the Migration Act, the Tribunal failed to ensure, as far as possible that the Applicant understood that he had a choice of addressing adverse information immediately or at a later time.”

3. Sections 359AA and 359A are relevantly as follows:

   359AA

   (1) If an applicant is appearing before the Tribunal because of an invitation under section 360:

   (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) if the Tribunal does so—the Tribunal must:

   (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

   (ii) orally invite the applicant to comment on or respond to the information; and

   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and

   (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   (2) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F). (emphasis added)

   359A

   (1) Subject to subsections (2) and (3), the Tribunal must:

   (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

   …

   (3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

   …

4. The Applicant acknowledged that s.359AA of the Act was facultative, in that it provides a method the whereby s.359A obligations may be satisfied (see s.359A(3) and SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [2] and [89] in relation to the equivalent provisions in ss.424A and 424AA). It was pointed out that in SZMCD the Full Court had stated at [89] in relation to ss.424A and 424AA:

   The provisions are designed to facilitate the conduct of reviews contemplated by part 7 of the Act. If s 424A were triggered during the run of a review hearing and s 424AA had not been enacted, the hearing would have had to be adjourned in order to enable the s 424A(1) written particulars to be given. Such an outcome would be disruptive and inconvenient.  If, as is now the case since the introduction of s 424AA into the Act, clear particulars of the relevant information are given at the hearing orally and the Tribunal otherwise complies with s 424AA(b) in its entirety, then the obligations imposed upon the Tribunal by s 424A(1) will be satisfied in substance during the course of the review hearing by the giving of those oral particulars.  In that way, the objects sought to be achieved by s 424A(1) will be met.  (emphasis added)

5. The Applicant submitted that it was clear from the transcript of the Tribunal hearing of 30 October 2013 annexed to the affidavit of Winnie David that the Applicant did not understand the Tribunal’s offer and advice (pursuant to s.359AA(1)(b)(iii)) that he could respond to information put to him at the hearing or that he could seek additional time to respond. It was also submitted that the Tribunal had made no real attempt to ensure that the Applicant understood that he had such a right.

6. It is important to see the exchange at the hearing that is relied on by the Applicant in context.  After the Tribunal had taken evidence from the Applicant’s uncle by telephone in relation to the Applicant’s employment at the Tandoori Rasoi restaurant, the Tribunal put to the Applicant that there seemed to be a couple of inconsistencies between what he had told the Tribunal at the first hearing and what his uncle had told the Tribunal, in particular about the hours of his employment (Transcript p.10, lines 46-47).  The Tribunal member explained that she would tell the Applicant what the inconsistencies were and why they were relevant and that she would give him an opportunity to comment on those (Transcript p.10, lines 46-50).

7. The Tribunal then outlined the apparent inconsistencies in the evidence about the hours and times worked by the Applicant at the Tandoori Rasoi restaurant.  No issue is taken with the extent of the information put to the Applicant in this respect.  Importantly, the hearing continued (Transcript p.11, lines 20-49):

   So it seems to be that you have given me different answers in terms of the opening and the closing times and the times when you’ve started working and when you finished working in the restaurant.  That’s relevant because I might conclude that you may not have worked there for the whole period or for the amount of hours that you claim or that you may not have worked there at all and that’s obviously relevant to deciding whether or not your visa will remain cancelled, in exercising discretion whether or not your visa will be cancelled, in particular to whether you have in fact completed the requisite number of hours to gain your work experience, to gain your TRA assessment and whether the correct information is that you did have the relevant work experience to get your skills assessment.  So you can either provide your comments to this information orally, you can provide you comments in writing, you can do that now or you can request me to adjourn the review and get a bit more time to provide your comments.  So what would you like to do?

   A. I didn’t get the last one.

   Q. You can respond to that information now or you can ask me to give you more time, to adjourn the review and give you more time and you can provide your comments later, you can provide your comments orally or you can provide your comments in writing.

   A. What comment –

   Q. Well effectively what I think the issue is is that you have given different answers, you and Mr Alam have given me different answers about the time when you started your work, the time when you have finished your work and the number of hours that you were doing, in particular during the school holidays –

   A. No, I – sorry.  You asked me that question like what time you normally work, I said I normally can’t remember what time because it was quite long time ago.  (emphasis added)

8. It is notable that after the Tribunal’s initial explanation, in response to the Applicant’s statement “I didn’t get the last one” the Tribunal had re-stated its advice as follows:

   You can respond to that information now or you can ask me to give you more time, to adjourn the review and give you more time and you can provide your comments later, you can provide your comments orally or you can provide your comments in writing.

9. It was submitted however that it could be inferred that the Applicant’s response, which was recorded as “What comment—”, was a question, and that rather than answer the question “What comment?” or make sure that the Applicant understood his alternatives (in particular that he could give a response or comments then or later), the Tribunal member had gone on to put to him aspects of the uncle’s evidence and to explain what the issue was in relation to the inconsistencies.

10. The Applicant contended that while the Tribunal put to him that he had a choice, it had failed to ask him what he wanted.  There was said to be no indication that the Applicant consciously or overtly made an election as to whether to reply immediately or at a later time.  It was submitted that in these circumstances it was legitimate to infer that the Applicant appeared not to be aware of the fact that he had a choice and that the Tribunal had not attempted to ensure that he was so aware.

11. Insofar as the First Respondent submitted that s.359A(1) was not enlivened by the information consisting of the uncle’s evidence, the Applicant pointed out that even though the Tribunal accepted his evidence and that of his uncle that he worked at the Tandoori Rasoi restaurant, it did not accept the claims about the work being carried out between September 2005 and October 2006, finding it impossible to determine whether the work was carried out in this period as the Applicant claimed. It was submitted that the only basis on which the Tribunal could have made this finding on the evidence before it was the inconsistency between the Applicant’s evidence and that of his uncle, so that it was submitted that the uncle’s evidence and the inconsistencies referred to by the Tribunal led directly into its decision. Thus, it was submitted that the Tribunal’s doubts about the veracity of the evidence given by the Applicant because of inconsistencies (in part with his uncle’s evidence) fed directly into its conclusions in relation to his claims about work at the Tandoori Rasoi and the Tribunal’s lack of satisfaction about when the Applicant worked there and whether it was for the period claimed (in particular whether he had completed 900 hours of relevant work experience as a cook at the time he made the application for the skills assessment).

12. The Applicant also contended that, as considered in Minister for Immigration and Citizenship v SZLFX & Anor (2009) 238 CLR 507; [2009] HCA 31, and notwithstanding the relevance of the Tribunal decision, it was necessary to bear in mind that as pointed out in SZBYR at [17]:

    The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case.

13. The Applicant submitted that the obligation on the Tribunal under s.359AA(1)(b)(iii) of the Act to advise an applicant that he or she may seek additional time to comment on or respond to the information at least implied that the Tribunal must seek to ensure that an applicant understood that he or she had that option. It was contended that in this case the Tribunal had failed to at least attempt to ensure that the Applicant understood that he had a choice.

14. In support of this proposition counsel for the Applicant submitted that unless the Applicant was given a real opportunity to exercise his or her choice of replying to the issues raised, whether at the time of the hearing or later, then the obligation in s.359AA(1)(b)(iii) would be reduced to nothing more than an empty gesture. It was submitted that the Tribunal was under an obligation to ensure as far as possible that the Applicant understood the choice that he had and that this was reinforced by the fact that ss.359AA and 359A were aspects of a partial codification of the requirements of procedural fairness. The Applicant suggested that Parliament could not have intended the requirements in s.359AA(1)(b) to be merely formal.

15. In addition, it was submitted that principles of statutory construction supported this conclusion, insofar as it was well settled that a construction “which appears irrational or unjust” was to be avoided where the statutory text did not require that construction (see Uelese v Minister for Immigration and Border Protection (2015) 319 ALR 181; [2015] HCA 15 at [45]). The Applicant submitted that it would be irrational and unjust were it sufficient for the Tribunal to inform a person of a right which went to a statutory obligation of procedural fairness, unless it also sought to ensure, as far as possible, that the person understood that they had such a right.

16. Further, it was submitted that s.359AA(1)(b) was a beneficial provision (for an applicant as well as for the Tribunal) in that it was intended to provide an opportunity for an applicant to provide a considered response to adverse information and that hence (in accordance with established principles of statutory construction) it should be construed beneficially (see, for example, Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32; [1991] HCA 7, 44 (per Mason J) and Davison v State of Queensland (2006) 226 CLR 234; [2006] HCA 21 at [41] (per Kirby J agreeing with the plurality)). Given that the duty to inform an applicant of his or her rights fell to the Tribunal, it was submitted that a beneficial construction would require the Tribunal to ensure, as far as reasonably possible, that the person understood that he or she had such a right.

17. It was submitted that the Tribunal had failed to comply with s.359AA(1)(b)(iii) and hence had failed to comply with s.359AA in its entirety so that the obligation to comply with s.359A of the Act had not been met (see SZMCD at [89]).

18. The First Respondent submitted first that there was no information within s.359A(1) so that the issue of the application of s.359AA did not arise. It was pointed out that while the Tribunal had purported to comply with s.359AA at the hearing, that did not of itself mean that there was any s.359A obligation. In SZGIY v Minister for Immigration and Citizenship (2008) FCAFC 68 at [30] the Full Court of the Federal Court rejected the proposition that if the Tribunal felt it necessary to invite an explanation, then such a provision must apply and observed that the Tribunal may “out of an abundance of caution or concern for fairness, put a particular line of reasoning to an applicant” in circumstances where s.424A (the equivalent of s.359A) had no application.

19. It was contended that the only “information” that was potentially such as to enliven s.359A would be the information from the Applicant’s uncle about the Applicant working at the Tandoori Rasoi restaurant. It was acknowledged that if the Tribunal had reasoned that the contradictions between the evidence from the uncle and the Applicant’s own evidence as to the circumstances of his work at Tandoori Rasoi had led it to conclude that the Applicant did not work at the Tandoori Rasoi, then it may have been that such information would enliven s.359A(1) of the Act. However it was pointed out that the Tribunal had not reasoned in this way, finding that while there were some “relatively minor” inconsistencies in their evidence, “overall” the Applicant and his uncle gave “consistent evidence” about the Applicant’s employment in the restaurant.  The Tribunal considered it plausible that the Applicant may have engaged in employment at the restaurant, completing training on an unpaid basis in return for accommodation with his uncle.  Hence it was submitted that the evidence of the uncle did not undermine the Applicant’s claims (see SZBYR at [17] and SZLFX at [24] to [26] in which it was suggested that it was appropriate to look at the reasons of the Tribunal to determine whether an inference should be drawn that the Tribunal considered particular information would be the reason or part of the reason for affirming the decision under review). The First Respondent contended that it was apparent from what the Tribunal found that it did not regard the uncle’s evidence as the reason or part of the reason for affirming the decision under review, given that it found that the Applicant and uncle gave consistent evidence. There was said to be nothing to indicate that the Tribunal relied on the uncle’s evidence in any way contrary to the Applicant’s case before the Tribunal.

20. Counsel for the First Respondent submitted that it was not determinative that the Tribunal might have thought at the time of the hearing that s.359A was or might be engaged as this was ultimately a matter of objective assessment by the court which, it was submitted, should accept that there was no information that enlivened s.359A(1) of the Act.

21. In any event, the First Respondent submitted that there was no failure to comply with s.359AA of the Act.

22. In this respect it was submitted that s.359AA was not remedial or beneficial legislation, but rather of assistance to the Tribunal as an oral method of complying with the obligation in s.359A to put information to an Applicant in writing. It was submitted that the terms of s.359AA were not to be interpreted in either a particularly broad or particularly narrow way.

1. It was also pointed out that s.359AA(1)(b)(iii) required the Tribunal to advise an applicant that he or she may seek additional time to comment on or respond to information but, in contrast to s.359AA(1)(b)(i), did not include a requirement that the Tribunal ensure “as far as reasonably practicable” that the applicant understand that particular advice. 

2. In any event, the First Respondent contended that the Applicant’s submission that it was “clear” that the Applicant did not understand the Tribunal’s statement that he could respond either at the hearing or in writing thereafter was not borne out by a reading of the transcript of the Tribunal hearing, which was said to reveal that the Applicant responded in a coherent way to the Tribunal’s concerns.  It was pointed out that the hearing was conducted in English and submitted that it was apparent from reading the transcript that there were no difficulties with the Applicant’s interpretation of the Tribunal questions and that the fact that the Applicant had occasionally asked for things to be repeated did not suggest that there was any general problem with misunderstanding.

3. The First Respondent also submitted that the Tribunal had explained, quite properly, the Applicant’s choice of providing comments orally or in writing as well as the fact that he could respond at the time or request an adjournment and have more time to provide his comments.  This explanation was repeated after the Applicant indicated that he did not “get the last one”.  It was submitted that it should not be inferred from the Applicant’s response of “[w]hat comment” that the Applicant did not understand anything about what had been said, in particular the fact that he had the choice of addressing adverse information immediately or at a later time.  There was said to be nothing to support such a proposition on the face of the transcript.  Rather, it was said to be apparent from what occurred thereafter that the Tribunal explained (again) the concern that there were some inconsistencies between the evidence of the Applicant and his uncle about his work at the Tandoori Rasoi restaurant.  The Applicant responded to these concerns, thus indicating that he had chosen to respond orally at the time of the Tribunal hearing.  There was said to be nothing to indicate that the Applicant was in any way confused about the options that he had and also no reason why the Applicant should not have given an immediate response if he thought he was capable of so doing.  It was also pointed out that it was clear from the Tribunal’s ultimate finding that such response must have been persuasive, given that the Tribunal found that the Applicant and his uncle overall gave consistent evidence.

4. Thus, the First Respondent submitted that the preferable inference from the transcript was that the Applicant understood that an option for him was to respond to the Tribunal’s concerns at the hearing and that he chose to do so and that it could not be said that the Tribunal made “no real attempt” to inform him of his right to seek to respond later or in writing, given that it made this remark twice and there was no indication that the Applicant ultimately did not understand what the Tribunal was saying. 

Consideration

1. As stated in SZMCD at [80] per Tracey and Foster JJ (in relation to ss.424A and 424AA) the legislature must have intended that provisions such as ss.359A and 359AA “would operate in a coherent and complementary fashion” and hence that they “should be construed in a manner which gives effect to that intention”. The interaction of these two provisions is not in dispute. Nor is it disputed that in order to be relieved of the obligation to comply with s.359A(1) in relation to information that enlivens that provision, the Tribunal must (if it chooses to invoke the provisions of s.359AA) give clear particulars of the relevant information orally at the s.360 hearing and must also comply with s.359AA(1)(b) “in its entirety” in order to meet the objects sought to be achieved by s.359A(1) of the Act (see the discussion in SZMCD at [76]-[92]).

2. Under se.357A(1) of the Act, Division 3 of Part 5 of the Act (in which ss.359AA and 359A appear) “is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with”. The Tribunal must “strictly comply” with s.359A (as stated in SZMCD at [73] in relation to s.424A). Given the complementary nature of ss.359AA and 359A, in order to meet the objects sought to be achieved by s.359A and the policy and purpose underpinning both provisions (see SZMCD at [71]-[72]) the Tribunal must, similarly, strictly comply with s.359AA in order to avoid the need to comply strictly with s.359A of the Act.

3. Clearly, if the information in question does not enliven s.359A(1), the Tribunal is under no obligation to comply with either s.359A or s.359AA and the fact that it invites some explanation at a hearing in relation to a matter of concern does not mean that s.359A(1) must be applicable (SZGIY at [30] in relation to s.424A(1) of the Act).

4. However for the reasons that follow I am of the view that the Tribunal met the requirements of s.359AA of the Act. Hence it is unnecessary for present purposes to determine whether the evidence from the uncle enlivened s.359A as “undermining” the Applicant’s claim. Nonetheless for the sake of completeness I note that, in my view, as submitted by the Applicant, such evidence did enliven s.359A(1) insofar as it undermined aspects of the Applicant’s claims about the extent of his work experience at the Tandoori Rasoi restaurant. His claims were that he had 900 hours of work experience before the time of the skills assessment application and that he had given his former migration agent the Tandoori Rasoi letter. The Tribunal did not accept these claims, which it considered under reg.2.41 in the context of determining whether to cancel the visa. Despite the Tribunal’s acceptance of the overall consistency of the evidence of the Applicant and his uncle, it can be inferred from the Tribunal decision (see SZLFX) that the uncle’s evidence was nonetheless information that the Tribunal considered would be part of the reason for affirming the decision under review.  The Tribunal’s findings about a lack of satisfaction that the Applicant had worked at the Tandoori Rasoi for the period and hours claimed at the relevant time were based, at least in part, on the uncle’s evidence (in particular about the number of hours worked by the Applicant each week and the period he worked there).

5. In any event, I am satisfied that the Tribunal met the requirement in s.359AA(1)(b)(iii) of the Act to “advise the applicant that he or she may seek additional time to comment on or respond to the information”. While s.359AA does not contain an express requirement that the Tribunal ensure as far as possible that the Applicant understood the choice he had, in this case the manner in which the Tribunal advised the Applicant of the fact he may seek additional time to comment or respond gave him a real (and meaningful) opportunity to seek additional time. If such a requirement is implicit in s.359AA, it was met. The Tribunal did not leave it to chance that the Applicant might seek additional time or understand that he could do so. On the contrary. First, the Tribunal briefly explained to the Applicant that it was going to tell him about certain aspects of the uncle’s evidence, inconsistencies with his own evidence and why this was relevant and that it would “give [him] an opportunity to comment on those” (Transcript p.10, lines 46-50). After elaborating on the information from the uncle and its concerns about inconsistencies with particular aspects of the Applicant’s evidence (thus giving the Applicant the opportunity to appreciate the scope of the matters on which his comment would be sought), the Tribunal summarised its concerns in the passage starting at Transcript page 11 line 20 set out at [108] above.

6. The Tribunal then gave the Applicant the choice of commenting orally “now” or in writing, by asking the Tribunal “to adjourn the review” and thus “get a bit more time to provide … comments”. This advice included the advice required under s.359AA(1)(b)(iii). The Applicant was told generally about the nature of the information on which his comment would be sought before having to exercise the choice as to when to provide any comment.

7. Contrary to the Applicant’s submission, the Tribunal member then expressly gave the Applicant the opportunity to tell her what he would like to do.  When the Applicant indicated that he “didn’t get the last one”, that in itself appeared to indicate that he understood he had an alternative, but was asking the Tribunal to repeat or explain the last alternative. 

8. In any event, the Tribunal reiterated (in slightly simpler language) the alternatives, in advising: “[y]ou can respond to that information now or you can ask me to give you more time, to adjourn the review and give you more time and you can provide your comments later, you can provide your comments orally or you can provide your comments in writing”. 

9. I am not persuaded that it should be inferred from the Applicant’s subsequent remark “what comment?” (seen as a question) that it was clear that he did not understand the advice that he may seek additional time to comment on or respond to the information, as distinct from an indication that he was seeking clarification about what comments were sought.  The Tribunal addressed this query. 

10. It is also apparent from the transcript as a whole that the Applicant provided coherent responses to Tribunal questions, including when the Tribunal went on to put to him particulars of the information from the uncle for comment.  Beyond very occasional requests for clarification (which the Tribunal provided), there is nothing to indicate, let alone establish, an actual or apparent lack of comprehension on the part of the Applicant including, relevantly, any failure to understand the fact that he could seek additional time to comment or respond (rather than doing so at the hearing). 

11. As the First Respondent submitted, it cannot be said that the Tribunal made no real attempt to inform the Applicant of his right to seek additional time. The transcript does not support any inference that the manner in which the Tribunal gave this advice to the Applicant was not such as to comply with s.359AA(1)(b)(iii). The Tribunal gave the Applicant a real opportunity to seek additional time to respond. It repeated this advice when some clarification as to “the last one” was sought.  It was not necessary that the Tribunal repeat “So what would you like to do?” (as seems to be contended) in advising the Applicant of the alternatives under s.359AA(1)(b)(iii). Rather than seek additional time, the Applicant responded to the issues raised by the Tribunal.

12. I do not accept that in these circumstances the Applicant had to state expressly that he did not wish to seek additional time (or that he wished to comment at the hearing) for the court to be satisfied that he was afforded a fair and meaningful opportunity to understand the choices inherent in s.359AA(1)(b)(iii).

13. I also note that there is no suggestion that at any time in the hearing or thereafter the Applicant or his solicitor raised any issue with the Tribunal about any comprehension or communication difficulties. Nor is there anything in the transcript to support such an inference. Further the Applicant’s solicitor did not seek additional time under s.359AA(1)(b)(iii) of the Act. Rather, he submitted that (as the Tribunal ultimately found) the “overall” evidence of the Applicant and his uncle was consistent. 

14. In any event (insofar as any wider issue of procedural fairness arises) the Tribunal gave the Applicant the opportunity to provide further submissions or documents after the hearing (which the Applicant’s adviser did – including in relation to the Applicant’s claim that he was living with his uncle from 2005 to 2007). 

15. It has not been established that the Tribunal failed to comply with s.359AA(1)(b)(iii) of the Act. There is now no claim that it failed to comply with any of the other requirements of that section. As the Tribunal met the requirements of s.359AA in their entirety, under s.359A(3) it was not obliged to give particulars of information to the Applicant in writing in accordance with s.359A of the Act. There was no breach of s.359A of the Act in the manner contended for by the Applicant.

16. The application should be dismissed. 

I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  7 April 2016