Ahmed v Minister for Immigration and Border Protection
[2016] FCA 1029
•25 August 2016
FEDERAL COURT OF AUSTRALIA
Ahmed v Minister for Immigration and Border Protection [2016] FCA 1029
Appeal from: Ahmed & Anor v Minister for Immigration and Border Protection & Anor [2016] FCCA 708 File number: NSD 583 of 2016 Judge: MARKOVIC J Date of judgment: 25 August 2016 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia dismissing an application for review of a decision of the Migration Review Tribunal – whether the primary judge erred by failing to find the Tribunal reached conclusions not based on evidence – whether leave should be granted to raise a ground that the primary judge erred in failing to find the Tribunal denied the applicant procedural fairness manifest by alleged bias on the part of the Tribunal – leave refused – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 97(c), 103, 107(1), 108, 109(1), 359A, 359AA(1)(b)(iii)
Migration Regulations 1994 reg 2.41
Cases cited: Abebe v The Commonwealth (1999) 197 CLR 510
Re Refugee Tribunal and Another; Ex Parte H and Another (2001) 179 ALR 425
Date of hearing: 17 August 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 81 Counsel for the Appellants: The appellant appeared in person Counsel for the Respondents: Mr T Reilly Solicitor for the Respondents: DLA Piper Australia ORDERS
NSD 583 of 2016 BETWEEN: MD SHOHEL AHMED
First Appellant
SHAMIN ARA
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
MARKOVIC J
DATE OF ORDER:
25 AUGUST 2016
THE COURT ORDERS THAT:
1.Pursuant to Rules 9.08 and 1.32 of the Federal Court Rules 2011 the second appellant be removed as a party.
2.The appeal be dismissed.
3.The first appellant to pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MARKOVIC J:
Before the Court is an appeal from orders made and judgment given by the Federal Circuit Court of Australia (Federal Circuit Court) on 7 April 2016: Ahmed & Anor v Minister for Immigration and Border Protection & Anor [2016] FCCA 708 (Ahmed). The Federal Circuit Court dismissed an application for review of a decision of the Migration Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal) made on 21 November 2013 affirming a decision of a delegate of the first respondent (the Minister) to cancel the first named appellant’s Skilled-Independent Overseas Student (Class DD) (subclass 880) visa (the Visa).
THE APPELLANTS
As a preliminary matter I note that the notice of appeal names two appellants: Mr Ahmed, who was the holder of the Visa, and his wife, Shamin Ara. Ms Ara had sought to be included in the application made by Mr Ahmed to the Tribunal but the Tribunal found that it had no jurisdiction in relation to her and that she would need to bring a separate application for review in relation to the cancellation of her visa. Ms Ara was again included as a second applicant in the Federal Circuit Court proceeding. However, the finding by the Tribunal that it had no jurisdiction in relation to her, as she had not made a valid application for review, was not in issue in that court. Mr Ahmed filed an amended application in the proceeding in the Federal Circuit Court in which Ms Ara was not named. The orders made and judgment given in Ahmed relate only to claims made by Mr Ahmed in his amended application.
Ms Ara is named as the second appellant in these proceedings. However, given the findings of the Tribunal in relation to her and the course of the proceeding in the Federal Circuit Court, she is not a proper party to this appeal. Mr Ahmed confirmed at the hearing that Ms Ara made no claims in the appeal and that she had commenced separate review proceedings. The Minister submits that Ms Ara should be removed as a party to the appeal. In the circumstances, I will make such an order.
I will hereinafter refer to Mr Ahmed as the appellant in these reasons.
STATUTORY FRAMEWORK
This appeal concerns the cancellation of the appellant’s visa pursuant to s 109 of the Migration Act 1958 (Cth) (the Act). The decision to cancel arose because of the operation of s 103 of the Act. That section provides that a non-citizen must not give, present or provide to an officer, an authorised system or the Minister or a tribunal performing a function or purpose under the Act a bogus document or cause such a document to be given, presented or provided.
At the relevant time, the term “bogus document” was defined in s 97 of the Act which provided in subs (c) that a bogus document in relation to a person means a document that the Minister reasonably suspects is a document that was “obtained because of a false or misleading statement, whether or not made knowingly”.
Section 107(1) provides that if the Minister considers that the holder of a visa who has been immigration cleared did not comply with, among others, s 103 of the Act the Minster may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b)stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non‑compliance:
(A) shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non‑compliance:
(A) give reasons for the non‑compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response — when that notice is given; or
(ii) if the holder gives the Minister a written response within that period — when the response is given; or
(iii) otherwise — at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
…
Section 108 requires the Minister to consider any answer given by the visa holder in the way required by s 107(1)(b) and to decide whether there was non compliance by the visa holder in the way described in the notice.
Section 109(1) then provides that the Minister, after deciding under s 108 that there was non compliance by the holder of a visa, considering any response to the notice about non compliance given in a way required by s 107(1)(b) and having regard to any prescribed circumstances, may cancel the visa. The prescribed circumstances for the purposes of s 109(1)(c) are set out in reg 2.41 of the Migration Regulations 1994 (the Regulations).
BACKGROUND
The appellant is a citizen of Bangladesh.
On 1 May 2007 the appellant applied to Trades Recognition Australia (TRA) for a skills assessment for classification as a “cook 4513-11”. In the application form the appellant noted that he was employed as a cook by China Town Restaurant from February 2006 to date. In support of the application the appellant included a reference dated 30 April 2007 from Michael Xu who described himself as manager of the China Town Restaurant situated at 29/187 Thomas Street Sydney NSW 2000. In the reference Mr Xu certified that the appellant had been working at the restaurant as a cook from 12 February 2006 to the date of the letter and that his total working hours exceeded “1,000 at an average of 20 hours per week” and outlined the appellant’s main duties.
On 6 July 2007 the appellant obtained a suitable skills assessment from TRA. The letter from the Department of Employment and Workplace Relations (DEWR) informed the appellant that the assessment had been completed and that “taking all information into account” he had been successful in his migration skills assessment application for the occupation of cook 4513-11. In the part of the letter headed “Statement of Reasons” the TRA informed the appellant that “the evidence provided [had] satisfied the formal training requirements set out at section 13 of the UAC” and that “the evidence provided [had] satisfied 900 hours directly related work experience set out at section 13 of the UAC”.
On 27 July 2007 the appellant applied for the Visa providing details of the skills assessment given by the TRA. On 5 January 2009 he was granted the Visa.
By letter dated 3 July 2012 a delegate of the Minister notified the appellant that, because the delegate considered that there had been non compliance with s 103 of the Act, the delegate was considering cancelling the appellant’s visa. The letter set out the terms of ss 103 and 97 of the Act and how it was said that the appellant had not complied with s 103 of the Act. The letter relevantly stated:
You have not complied with s 103 of the Act because you presented a bogus document, in the form of a letter dated 6 July 2007, from the Department of Employment and Workplace Relations (DEWR). This letter confirms that your application to Trades Recognition Australia (TRA) has been successful and your occupation for migration purposes has been designated as a Cook [4513-11].
On lodgement of your application with TRA on 1 May 2007, you submitted documentation which included a 3 page letter dated 30 April 2007 provided by Michael Xu, Manager of China Town Restaurant. This letter verifies your employment and job description and confirms that your total working hours within the restaurant exceeded 1,000 hours.
An investigation was undertaken by the Department into your employment and work experience as claimed by you in respect of the TRA application, and has confirmed that the China Town Restaurant does and that the contents of the documentation is false. You did not comply with s 103 because the letter from DEWR dated 6 July 2007, was obtained because of a false and misleading statement under s 97(c).
The delegate’s letter explained that before a decision could be made about whether the Visa could be cancelled the appellant had an opportunity to comment on the possible non compliance and set out the matters that the appellant’s response should address and the time within which any response should be provided.
On 12 November 2012, after correspondence between the appellant’s advisors and the delegate, the appellant was notified of the delegate’s decision to cancel the Visa. The delegate found that the appellant did not comply with s 103 of the Act because he provided a bogus document, namely a letter from DEWR which confirmed that the appellant’s application to TRA had been assessed and determined that his occupation for migration purposes had been designated as a cook. The delegate:
(1)noted that a work experience letter from the China Town Restaurant signed by its manager and dated 30 April 2007, which verified that the appellant had completed in excess of 1,000 hours of work as a cook with the restaurant and thus satisfied the work experience required to meet the criteria for designated cook, was included in the appellant’s application to the TRA;
(2)set out the findings of the Department’s investigation into the appellant’s employment with the China Town Restaurant;
(3)found that the contents of the reference document provided by the appellant in his TRA application were false, setting out the evidence that supported that conclusion;
(4)as a consequence, found that the appellant did not have the required skills and qualifications to meet the criteria for the Visa;
(5)considered the prescribed circumstances set out in reg 2.41 of the Regulations and concluded that the reasons for not cancelling the Visa, as prescribed in reg 2.41(g) and (f), were not sufficient to outweigh the other prescribed mattes in (a), (c) to (h) and (k). Accordingly, the delegate exercised her discretion under s 109 of the Act to cancel the Visa.
On 21 November 2012 the appellant applied to the Tribunal for review of the delegate’s decision. On 6 August 2013 the Tribunal wrote to the appellant pursuant to s 359A of the Act inviting him to comment on information which the Tribunal considered would, subject to the appellant’s comments, be the reason, or a part of the reason, for affirming the decision under review. In response to that letter statutory declarations made by the appellant and his wife were provided to the Tribunal. In his statutory declaration the appellant said that:
(1)to the best of his knowledge he had provided correct information to the Department but due to the fraudulent acts of his migration agent the information turned out to be “bogus and misleading”. At the time of the application, he did not know that Mr Wang was not a registered migration agent and had been prosecuted;
(2)his migration agent had changed his original document from the Tandoori Rasoi restaurant where he had in fact worked to “China Town” without the appellant’s knowledge or consent;
(3)the non compliance occurred because his migration agent at the time changed the appellant’s original document to give false information without the appellant’s knowledge or consent. He never mentioned that to the appellant who at the time was working at the Tandoori Rasoi restaurant not at the China Town Restaurant;
(4)the only non compliance known to the Minister is the “misleading documentation given during my TRA assessment as a result of which I have become victim of my migration agent’s dishonesty and I have fallen into the category of his money making process”;
(5)it had been 5 years since the non compliance occurred and he only became aware of it when he applied for citizenship;
(6)he had a daughter and he provided details of his current employment, contributions to charities and his property investment.
By letter dated 5 September 2013 the appellant was invited to attend a hearing before the Tribunal on 9 October 2013 to give evidence and present arguments. The appellant sought an adjournment of that hearing because the most important witness in the matter, the appellant’s uncle, would be travelling overseas. However, the Tribunal declined to adjourn the hearing indicating that the uncle could give his evidence by telephone. As the Tribunal was unable to contact the uncle by telephone on 9 October 2013 the hearing was adjourned to 30 October 2013 at which time the appellant’s uncle was able to give evidence.
On 21 November 2013 the Tribunal made its decision affirming the delegate’s decision to cancel the appellant’s visa.
THE TRIBUNAL DECISION
After setting out the background, the Tribunal identified the issues that arose on the review as:
(1)whether the s 107 notice is valid?
(2)was there non compliance with s 103 of the Act in the way described in the notice?
(3)if so, should the appellant’s visa be cancelled?
The Tribunal was satisfied that the s 107 notice was valid and complied with the statutory requirements. It was satisfied that the delegate had reached the necessary state of mind to engage s 107 of the Act and that the notice contained sufficient particulars to enable the appellant to identify and address the issues. The Tribunal was also satisfied that the delegate, in setting out the information which led to the finding that the documents were bogus documents, turned her mind to which paragraph of s 97 of the Act was engaged.
The next issue the Tribunal considered was whether there was non compliance with s 103 of the Act in the way described in the notice. The Tribunal referred to the TRA assessment which had been provided by the appellant to the Department when applying for the Visa and the content of the application form on which that assessment had been issued namely, the reference to his employment as a cook at China Town Restaurant from February 2006 to “current” and the inclusion of a reference from China Town Restaurant. The Tribunal also referred to the findings of an investigation included in the Department’s file with respect to another applicant who had relied on work experience at the China Town Restaurant and which revealed that the restaurant did not exist.
The Tribunal then noted that the s 107 notice suggested that the appellant did not comply with s 103 of the Act because the letter from DEWR, namely the TRA assessment, was obtained because of a false or misleading statement under s 97(c) of the Act. The Tribunal noted that the appellant did not respond to the notice but referred to the submissions made by the appellant to the Tribunal in which he stated that as far as he knew he had provided correct information to the Department but due to the fraudulent act of his migration agent it transpired that it was “bogus and misleading”.
After setting out the submissions made on behalf of the appellant, the Tribunal found at [24] of its decision record:
Having regard to the application for the skills assessment submitted to the TRA, the Tribunal finds that the applicant relied on his employment as a cook at China Town Restaurant when applying for the skills assessment. The applicant confirmed in his oral evidence to the Tribunal that he never worked in that restaurant. Having regard to the applicant’s evidence to the Tribunal, in addition to the Department’s investigations outlined above, the Tribunal finds that the applicant did not work at China Town Restaurant. The Tribunal finds that the applicant gave to the TRA information relating to his employment at China Town Restaurant that was false or misleading. The Tribunal finds that the TRA assessment was obtained because of a false or misleading statement.
The Tribunal was not prepared to accept the appellant’s claim that, unbeknownst to him, the employment reference was substituted by his then migration agent and that he was a victim of fraud because the TRA skills assessment application was signed by the appellant and the appellant had the opportunity “and perhaps the responsibility” to ensure that the content of the document he had signed was correct and accurate. The Tribunal noted the appellant’s claim that he signed a blank form and expressed the view that it was unclear why he would do so and take no steps to ensure that the information in the form was correct. In any event, the Tribunal noted that s 97(c) of the Act said that a document may be “bogus” if it was obtained because of a false or misleading statement “whether or not made knowingly”. The Tribunal concluded that the TRA assessment was a bogus document within the meaning of s 97(c) of the Act whether or not the appellant was aware of his agent’s actions.
The Tribunal found that the TRA assessment was a bogus document within the meaning of s 97(c) of the Act, that it was given to an officer of the Minister and that the appellant gave, presented or provided a bogus document to an officer of the Minister. The Tribunal therefore found that the appellant did not comply with s 103 of the Act and that grounds existed for the cancellation of the Visa in the way described in the notice issued pursuant to s 107 of the Act.
The Tribunal then considered whether the Visa should be cancelled pursuant to s 109(1) of the Act. In doing so, the Tribunal considered the matters raised by the appellant in response to the s 107 notice and before the Tribunal in the context of the prescribed circumstances set out in reg 2.41 of the Regulations and other considerations. In doing so, the Tribunal made the following findings in relation to the circumstances prescribed by reg 2.41:
(1)as to reg 2.41(a), which concerns the correct information, the Tribunal noted that contrary to the skills assessment application in which the appellant relied on his work experience at China Town Restaurant, the correct information was that the appellant did not work at that restaurant. The Tribunal noted the appellant’s claim that the correct information was that he worked at another restaurant, Tandoori Rasoi, from September 2005 to October 2006. It formed the view that the appellant did work at that restaurant but that it was impossible for the Tribunal to determine whether that work was carried out between September 2005 and October 2006 as the appellant claimed such 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)as to reg 2.41(b), the content of the genuine document (if any), the Tribunal found that the content of the genuine document was that the appellant did not carry out employment as a cook at the China Town Restaurant;
(3)as to reg 2.41(c), the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document, the Tribunal noted that the appellant’s employment was relevant to cl 880.230 of Sch 2 to the Regulations which at the time required an applicant to obtain a skills assessment and that no evidence had become available that the information given or used as part of the assessment of the appellant’s skills was false or misleading in a material particular. The Tribunal found that, if the information that the appellant was not employed at the China Town Restaurant had been available to the TRA, the appellant would not have been issued with the skills assessment. The Tribunal also found that if the correct information was known the delegate would have likely made a finding that evidence had become available that the information given or used as part of the assessment of the appellant’s skills was false or misleading in a material particular. In those circumstances, the Tribunal found that the appellant would not have been able to meet the requirements of cl 880.230(1) and the Visa would not have been granted. While the appellant claimed that he was employed at Tandoori Rasoi restaurant and had the requisite experience, the Tribunal noted that there was no mention of that employment in the TRA assessment application and that the only employment upon which the appellant relied to obtain the TRA assessment was his employment at China Town Restaurant which did not take place. That is, the Tribunal found that, whether or not the appellant worked at another restaurant, it was not that employment that was relied upon to obtain his skills assessment. If the correct information about the employment at China Town Restaurant was known the Visa would not have been granted;
(4)as to reg 2.41(d), the circumstances in which the non compliance occurred, the Tribunal did not accept the appellant’s evidence that he provided genuine documents and information to his migration agent, was a victim of fraudulent conduct by the migration agent who falsified his employment reference and that he did not know about it until he applied for citizenship. The Tribunal noted that the appellant could not offer a satisfactory explanation as to why the agent would have falsified his employment claims if he had the relevant and adequate work experience in another restaurant and provided evidence of that. The Tribunal was also concerned that the appellant had signed a blank TRA application form. It observed that if he wanted to ensure the accuracy of the information submitted in that application he would not have signed a blank form and that he could have read the content of the application form and checked the supporting documentation before signing the form and paying the application fee. The Tribunal found that these two factors taken together suggested that the appellant did not have adequate work experience, either in terms of duration or the type of work or for another reason, at Tandoori Rasoi restaurant at the time when the application to the TRA was made. In the Tribunal’s view that was why the appellant approached the agent and the agent falsified the employment claim and reference. The Tribunal did not accept that the appellant was innocent of the fraud and that he was unaware that the agent had submitted a fraudulent employment reference to the TRA;
(5)as to reg 2.41(e), the present circumstances of the visa holder, the Tribunal referred to the appellant’s current work, his plans to open a small business, the fact that he purchased land in South Australia, his daughter who was born in Australia in 2013, the circumstances the family would face if they were to return to Bangladesh, the family support he will have in Bangladesh and noted the character references provided by the appellant;
(6)as to reg 2.41(f), the subsequent behaviour of the visa holder concerning his or her obligations under Subdiv C of Div 3 of Pt 2 of the Act, the Tribunal noted that it was not aware of anything adverse about the appellant’s subsequent behaviour concerning his obligations under the Act;
(7)as to reg 2.41(g), any other instances of non compliance by the visa holder known to the Minister, the Tribunal noted that it was not aware of any other instances of non compliance by the appellant;
(8)as to reg 2.41(h), the time that has elapsed since the non compliance, the Tribunal noted that the appellant had applied for the Visa in July 2007 and that over six years had elapsed since the non compliance;
(9)as to reg 2.41(j), any breaches of the law since the non compliance and the seriousness of those breaches, the Tribunal noted that it was not aware of any breaches of the law since the non compliance;
(10)as to reg 2.41(k), any contribution made by the holder to the community, the Tribunal noted that the appellant had informed it that he had always tried to help in the community, that he cleans up his house and the roadside and that when his employer collects donations he always contributes and that he makes other regular donations. The Tribunal was prepared to accept that the appellant made donations to various charities and donates his time.
The Tribunal then considered the matters set out in the Department’s Procedures Advice Manual (version 3) “general visa cancellation powers” at [15.3] which it noted, where relevant, should be taken into account as a matter of government policy when considering whether to exercise the discretion to cancel a visa under s 109 of the Act. These considerations were whether the visa would still have been granted if the correct information had been given, whether there were persons in Australia whose visas would, or may, be cancelled under s 140 of the Act, whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation, for example, if there were children in Australia whose interests could be affected by the cancellation or who would themselves be affected by consequential cancellation, the best interest of the children are to be treated as a primary consideration and whether the cancellation would lead to the person’s removal in breach of Australia’s non refoulement obligations and any other matters raised by the visa holder in their response.
After considering the factors identified by the legislation and policy and all of the appellant’s circumstances the Tribunal found that the appellant was not employed at the China Town Restaurant as he claimed in his TRA application. The Tribunal noted that information was central to the appellant’s ability to obtain the skills assessment and the Visa and the effect of the correct information would have resulted in the application being refused because the appellant would not have obtained the skills assessment and also because evidence was available that the information given or used as part of the assessment was false or misleading in a material particular. The Tribunal noted that the appellant may not have satisfied cl 880.230. The Tribunal accepted that the appellant had carried out some employment at another restaurant but rejected his claim 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.
The Tribunal considered the appellant’s present circumstances and those of his family as well as whether the cancellation would result in Australia breaching non refoulement obligations and found that would not occur. Having weighed those factors against the adverse findings that the Tribunal made regarding the provision of a bogus document and, despite finding that the best interests of the appellant’s child may be that they remain in Australia, the Tribunal formed the view that the breach was a serious one and central to the appellant’s ability to be granted the Visa. The Tribunal found that the s 107 notice was valid and that there was non compliance by the appellant in the way described in that notice.
The Tribunal concluded that the adverse circumstances in favour of cancelling the Visa outweighed the circumstances favouring the appellant for not cancelling the Visa and found that in all the circumstances the Visa should remain cancelled.
PROCEEDINGS IN THE FEDERAL CIRCUIT COURT
On 17 December 2013 the appellant commenced proceedings in the Federal Circuit Court seeking a review of the Tribunal’s decision. The appellant filed an amended application dated 5 June 2015. The grounds raised in the amended application were:
1.The Tribunal misconstrued and misapplied the words, “genuine document” in Migration Regulation 2.41(b).
Particulars
(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 Tribunal failed to complete the exercise of its jurisdiction.
Particulars
(a)Failure of the Tribunal, 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.
3.the Tribunal acted in breach of s. 359A of the Migration Act by failing to comply with the requirements of ss. 359AA(b)(ii) and 359AA(b)(iii).
Particulars
(a)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.
In relation to the first ground the primary judge held that in its terms, and viewed in context, 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. Her Honour noted that the text of reg 2.41(b) envisages that there will not be a “genuine document” in every case. It refers to the “content of the genuine document (if any)”. Contrary to the submission of the appellant, the primary judge found that this did not support an interpretation that any item of written information that is before the Tribunal and is not found to be bogus is within reg 2.41(b): Ahmed at [67].
The primary judge concluded that insofar as the appellant submitted that the Tribunal erred in failing to consider the work reference letter from the Tandoori Rasoi restaurant under reg 2.41(b) the ground was not made out: Ahmed at [81].
Having reached that conclusion, the primary judge noted that the Tribunal fell into error insofar as it construed reg 2.41(b) as applicable in circumstances where there was no document that was “the genuine document” and that the error lay in considering reg 2.41(b) to be applicable where there was no genuine version of the TRA skills assessment and not, as the appellant contended, in construing the words “genuine document” as including information not contained in any existing work reference: Ahmed at [83].
The primary judge went on to hold that the error was immaterial and that 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 considered by the Tribunal in the context of addressing the reg 2.41(a) and (c) factors and that in that context it made the same finding that the appellant did not carry out employment as a cook at the China Town Restaurant. The primary judge held that the repetition of that finding in the context of addressing reg 2.41(b) could not have affected the Tribunal’s decision. The primary judge was not satisfied that the Tribunal’s error amounted to jurisdictional error and held that, 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 one amounting to jurisdictional error, she would refuse relief as the error was immaterial and could not have affected the Tribunal’s decision: Ahmed at [85].
In relation to the second ground, the primary judge repeated her conclusion that she was not persuaded that the concept of “the genuine document” encompassed documents other than the genuine version, if any, of the document found to be bogus; noted that the TRA skills assessment was the relevant bogus document and that there was no genuine version of that document; and found that the Tandoori Rasoi letter was not “the genuine document”: Ahmed at [96].
The primary judge was not persuaded that, in the context of reg 2.41(c), the words “the correct information” necessarily encompassed the Tandoori Rasoi reference. Her Honour noted that, in its terms and considered in the context of reg 2.41 and the statutory regime for the cancellation of visas in circumstances of non compliance with sections of the Act that relate to the provision of incorrect information, the concept of “the correct information” as used in reg 2.41(c) is 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. That is, her Honour held that reg 2.41(c) required the Tribunal to consider, in addition to what was the correct information as required under reg 2.41(a) and the content of a genuine document, if any, as required under reg 2.41(b), the likely effect on a decision to grant a visa had the correct information or genuine document been available to a decision maker considering whether to grant a visa of the class that was granted to the visa holder. In this case, the “correct information” was, as the Tribunal recognised, that the appellant did not work at the China Town Restaurant: Ahmed at [97].
The primary judge also noted that, even if the concept of the correct information would encompass the information before the Tribunal about the appellant’s work at the Tandoori Rasoi restaurant, the Tribunal did not fail to take into account the appellant’s claims and evidence in that regard albeit it did so primarily in the context of considering reg 2.41(a) which refers generally to “the correct information”: Ahmed at [99].
The primary judge held that in the context of considering reg 2.41(c) the Tribunal properly had regard to the fact that employment at the Tandoori Rasoi restaurant was not in fact relied on to obtain the skills assessment and that it was not a jurisdictional error to fail to repeat the finding made in the context of reg 2.41(a) as one of the matters the Tribunal took into account in its consideration of the reg 2.41(c) factor which related to the likely effect of the correct information on a decision to grant a visa: Ahmed at [100]-[101].
In relation to the third ground, the primary judge noted that in oral submissions counsel for the appellant indicated that the claim in relation to s 359AA(1)(b)(ii) was not pressed. Her Honour then turned to consider the claim in relation to s 359AA(1)(b)(iii). First, her Honour held that the Tribunal had met the requirements of s 359AA of the Act and that it was unnecessary to determine whether the evidence from the uncle enlivened s 359A of the Act as “undermining” the appellant’s claim. Notwithstanding that, for the sake of completeness, her Honour noted that in her view such evidence did enliven s 359A(1) of the Act insofar as it undermined aspects of the appellant’s claim about the extent of his work experience at the Tandoori Rasoi restaurant: Ahmed at [133].
In any event, the primary judge was 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”. Her Honour found the manner in which the Tribunal advised the appellant of the fact he may seek additional time to comment or respond gave him a real and meaningful opportunity to seek additional time. Her Honour noted that, if there was a requirement implicit in s 359AA to ensure as far as possible that the appellant understood the choice he had, in this case it was met and the Tribunal did not leave it to chance that the appellant might seek additional time or understand that he could do so: Ahmed at [134].
THE APPEAL
The notice of appeal sets out three grounds of appeal. They are (as written):
1.The judge of the Federal Circuit Court in his honourable judgement delivered on the 7th April 2016 failed error of law and relief under the Judiciary Act. He failed to find that the Migration Review Tribunal (MRT) has not found any evidence in relation to may claims and thus its decision influenced by sufficient doubt.
2.The Migration review tribunal’s decision was affected by the recent High Court reported decision.
3.Besides, the Migration Review Tribunal did not follow the proper procedure as required by the Act in arriving its decision dated 21st November 2013 in deciding my skilled migration application. Thus, the procedures that were required by the act or regulations to be observed in connection with the marking of the decision were not observed.
Prior to the hearing the appellant provided two sets of written submissions.
The first set of submissions, filed on 9 August 2016, provides background to the appeal, raises matters of fact that were put to but rejected by the Tribunal and takes issue with the findings of the Tribunal, repeats the submissions that were filed in the Federal Circuit Court and raises an allegation of bias on the part of the Tribunal.
The second set of submissions, filed 15 August 2016, is in support of an application for an adjournment of the hearing.
At the hearing the appellant formally made his application for an adjournment and orally supplemented his written submissions in relation to that application. He also made further oral submissions in support of his appeal.
The application for an adjournment
The basis on which the appellant applied for an adjournment, both in his written and oral submissions, was to allow him more time to retain a lawyer to act for him on the appeal. In summary, the appellant submitted that he was not a lawyer and so could not address or argue any legal grounds of appeal, that he is depressed and that if he is given more time he will engage a lawyer to appear for him. He submitted that he had an arguable and meritorious case, that he had been a victim and that he had suffered from financial hardship as he had not been able to work since cancellation of his visa and had used up his savings and thus did not have the funds to pay for a lawyer. The appellant also said that his uncle, who had now recovered from knee surgery and would be able to return to work, had promised that he would provide him with funds to enable him to retain a lawyer.
The Minister opposed the application for an adjournment on the basis that the appellant had filed his notice of appeal on 26 April 2016, that directions for the preparation of the appeal for hearing and notifying the appellant of the period in which the appeal would be heard had been made shortly thereafter and that the appellant had had sufficient time in which to engage a lawyer to act for him in the appeal. The Minister also submitted that, while he accepted that the appellant may not be able to afford to retain a lawyer presently, it was mere speculation as to whether he will be in a different position in the future.
I declined the application for an adjournment. The appellant commenced this appeal on 26 April 2016. He has, as the Minister submitted, been on notice of the likely time at which it would be heard since late April 2016. That is he has had four months to take steps to retain a lawyer. While I accept that the appellant may have financial difficulties there was no evidence before me of any efforts that the appellant had made to secure a lawyer, of inquiries about the possibility of doing so in the near future or of the likelihood of the funds required to retain a lawyer being available in the foreseeable future.
Ground one
By the first ground of appeal the appellant alleges that the primary judge failed to find any error of law and to grant the relief claimed. The appellant also asserts that the primary judge failed to find that the Tribunal did not have any evidence before it to support its conclusions.
The first aspect of this ground of appeal cavils with the findings of the primary judge without providing any particulars of the way in which the appellant says that the primary judge fell into appealable error.
As the appellant is not represented in this Court, I have carefully considered each of the grounds raised in the amended application that was before the primary judge and her findings in relation to them. I am unable to discern any error on the part of the primary judge in her approach to and determination of those grounds. A summary of the primary judge’s findings in relation to each of the grounds is set out at [33] to [42] above.
In relation to the first ground raised in the amended application the primary judge, after setting out the authorities in relation to the task of statutory construction, undertook that task in relation to reg 2.41(b). The primary judge, correctly in my view, rejected the appellant’s submission that, considered in context, reg 2.41(b) 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. The primary judge held at [79] of her judgment that she was not persuaded that the text of reg 2.41(b) considered in context extended to require consideration to be given to any document before the decision maker not found to be bogus 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. Rather, the primary judge held that reg 2.41(b) requires that regard be had to the genuine version, if any, of a document found to be bogus.
Based on that conclusion her Honour went on to note that the bogus document before the Tribunal was the TRA assessment and that there was no genuine TRA assessment. Her Honour noted that the Tribunal did not find that the China Town Restaurant reference was a bogus document but rather that it contained the false and misleading statement on which the bogus TRA assessment was based. Thus, even if the Tandoori Rasoi work reference was a genuine document, in the sense that the Tribunal accepted that it was signed by the appellant’s uncle, reg 2.41(b) did not extend to require consideration of that reference as “the genuine document (if any)”. In any event, the primary judge noted that the Tribunal expressed a lack of satisfaction that the appellant had worked at the Tandoori Rasoi restaurant for the period claimed or that he had completed 900 hours of work experience prior to making the skills assessment application and made no finding that the Tandoori Rasoi work reference was correct.
I can discern no error in the primary judge’s reasoning or conclusion, either in her interpretation of reg 2.41(b) of the Regulations, or in her acceptance of the Tribunal’s finding that the bogus document was the TRA assessment and her rejection of the submission that the Tribunal erred in failing to consider the work reference letter from the Tandoori Rasoi restaurant under reg 2.41(b). Nor can I discern any error in the primary judge’s finding that while 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, that error did not amount to jurisdictional error.
In relation to ground two the primary judge found that for the purposes of reg 2.41(c) the correct information, in the circumstances of this case, was that the appellant did not work at the China Town Restaurant. The primary judge was not persuaded that “the correct information” encompassed the reference from the Tandoori Rasoi restaurant. The primary judge held that the concept of “the correct information” as used 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”: Ahmed at [97]. The incorrect information in the context of this matter was that the appellant worked at the China Town Restaurant. Thus it follows that the correct information was that he did not work there.
The primary judge went on to observe that the interpretation given to reg 2.41(c) was consistent with the fact that the regulation required consideration to be given to the likely effect on a decision to grant a visa of the correct information: Ahmed at [98].
Her Honour also noted that, even if the concept of the correct information would encompass the appellant’s work at the Tandoori Rasoi restaurant, the Tribunal did not fail to take that into account, albeit in the context of considering reg 2.41(a) which refers generally to “the correct information”: Ahmed at [99]. There is no error in the approach of the primary judge.
The final ground considered by the primary judge concerned an alleged breach of s 359A of the Act by failing to comply with s 359AA(1)(b)(iii) in that the Tribunal failed to ensure, as far as possible, that the appellant understood that he had a choice of addressing adverse information immediately or at a later time.
Section 359A relevantly provides:
359A Information and invitation given in writing by Tribunal
(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.
…
Section 359AA relevantly provides:
359AA Information and invitation given orally by Tribunal while applicant appearing
(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.
…
For the purpose of considering this ground the primary judge had before her a transcript of the Tribunal hearing. The primary judge was of the view that the Tribunal met the requirements of s 359AA(1)(b)(iii) of the Act to advise the appellant that he or she may seek additional time to comment on or respond to the information. The primary judge noted that the Tribunal briefly explained to the appellant that it was going to tell him about certain aspects of his uncle’s evidence, inconsistencies with his own evidence and why this was relevant and that it would then give him an opportunity to comment on those. The primary judge then noted that the Tribunal elaborated on the uncle’s information and inconsistent aspects of the appellant’s evidence, summarised its concerns and gave the appellant the choice of commenting orally at the time or in writing by asking the Tribunal to adjourn the review. The primary judge found that this advice included the requirements of s 359AA(1)(b)(iii) of the Act in that the appellant was told generally about the nature of the information on which his comment would be sought before having to exercise the choice about when to provide any comment: Ahmed at [134]-[135].
The primary judge held that, contrary to the appellant’s submission, the Tribunal member expressly gave the appellant the opportunity to tell her what he would like her to do. The primary judge found that the appellant’s statement that he “didn’t get the last one” appeared to indicate that the appellant understood he had an alternative but was asking the Tribunal to repeat or explain the last alternative. In any event, the primary judge noted that the Tribunal reiterated the alternatives: Ahmed at [136]-[137].
The primary judge also found that it was apparent from the transcript as a whole that the appellant provided coherent responses to the Tribunal questions, including when the Tribunal put to him particulars of the information from his uncle for comment and that, apart from occasional requests for clarification, which were provided, there was nothing to indicate, let alone establish, an actual or apparent lack of comprehension on the part of the appellant: Ahmed at [139].
The primary judge held that the Tribunal gave the appellant a real opportunity to seek additional time to respond and it repeated this advice when some clarification was sought and that it had not been established that the Tribunal failed to comply with s 359AA(1)(b)(iii) of the Act.
I have also had the benefit of the transcript of the hearing before the Tribunal. Having reviewed it, I can discern no error in the approach of the primary judge nor in the approach of the Tribunal. Her Honour considered the relevant sections of the Act and, with the benefit of the transcript of the hearing, considered whether there had been a failure by the Tribunal to meet its obligations under s 359AA(1)(b)(iii) and found, having considered the relevant portions of the transcript and the obligation that is imposed on the Tribunal, that it had met the requirements of the section.
The second part of this ground of appeal alleges that the Tribunal had not found any evidence and thus its decision was influenced by sufficient doubt. To the extent this is an allegation that there was no evidence before the Tribunal to enable it to reach its conclusions, it cannot be sustained. There clearly was evidence before the Tribunal for it to make the findings that it did and to reach the ultimate conclusion that it did.
Ground one of the appeal is not made out.
Ground two
In this ground of appeal the appellant simply asserts that the Tribunal’s decision is affected by “the recent High Court reported” decision. No detail is given of the particular decision which it is alleged affects the Tribunal’s decision. When I inquired at the hearing whether the appellant could identify to which judgment he was referring or provide any details of it to enable it to be identified the appellant was unable to do so.
In the absence of any identification or further details of the judgment which is said to affect the Tribunal decision this ground is meaningless and cannot succeed.
Ground three
By this ground the appellant alleges that the Tribunal did not follow the procedures required by the Act. Insofar as this is an attempt to repeat the third ground that was raised before the primary judge in relation to a failure by the Tribunal to comply with s 359AA(1)(b)(iii), I refer to [60] to [69] above. No other procedure that the Tribunal is alleged not to have followed is identified. This ground is not made out.
THE APPELLANT’S SUBMISSIONS
As noted above, the appellant’s first set of written submissions sets out background to the appeal, takes issue with the findings of fact made by the Tribunal and at [19] to [29] reproduces submissions relating to the grounds set out in the amended application that were before the primary judge.
To the extent that the appellant expresses disagreement with the Tribunal’s factual findings and seeks impermissible merits review, those are not matters which can be raised in this Court. Further, I accept the submission of the Minister that no error of law is made out where a Tribunal makes a wrong finding of fact: see Abebe v The Commonwealth (1999) 197 CLR 510 at [137]. In any event the Tribunal’s findings were open to it on the material before it.
To the extent the appellant’s submissions repeat submissions that were made before the primary judge, those submissions were considered and rejected by the primary judge. I have considered the judgment of the primary judge and in that regard I refer to the matters set out at [51] to [72] above.
The only additional matter raised in the appellant’s submissions is an allegation by the appellant that he was denied procedural fairness and natural justice “when [his] submission was outright discarded or rejected” and that the “Tribunal made decision with closed mind”. This appears to be an allegation of a denial of natural justice manifested by alleged apprehended bias on the part of the Tribunal. This ground was not raised before the primary judge and to the extent the appellant seeks to raise it on appeal for the first time he needs leave.
In Re Refugee Tribunal and Another; Ex parte H and Another (2001) 179 ALR 425 the High Court (Gleeson CJ, Gordon and Gummow JJ) at [27]-[28] said:
27.The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided. That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private.
28.Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. To do otherwise, would be to risk confusion of apprehended bias with actual bias by requiring substantially the same proof.
(citations omitted)
There is nothing in the material before me, including in the transcript of the hearing to which I have had regard, to suggest that the Tribunal approached its task other than by bringing an impartial mind to the resolution of the issues before it. As raised in the submission and, without any particulars, the allegation of bias on the part of the Tribunal cannot be made out. Nor is there, based on the material that is before me, anything to suggest that the appellant was denied procedural fairness or natural justice by the Tribunal. As has already been observed, the primary judge properly found that the Tribunal complied with its obligations under s 359AA(1)(b)(iii) of the Act. Further, the appellant was invited to a hearing to give evidence and make submissions; he was represented at that hearing and was given an opportunity to respond to issues raised by the Tribunal both at and after the hearing.
The claims of denial of procedural fairness and natural justice and bias on the part of the Tribunal lack merit and I do not grant leave to raise them in the appeal.
The appellant’s oral submissions in support of his appeal do not identify any error on the part of the primary judge. In those submissions the appellant sought to raise the same issues that he raised before the Tribunal and which the Tribunal did not accept. It is not possible for the appellant to raise those matters before me. In doing so he seeks impermissible merits review.
CONCLUSION
For the reasons given above the appeal must be dismissed and the appellant ordered to pay the Minister’s costs as agreed or taxed. I will make orders accordingly and will make an order removing the second appellant as a party.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic. Associate:
Dated: 25 August 2016
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