Akter v MIBP
[2018] FCCA 3604
•10 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKTER & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3604 |
| Catchwords: MIGRATION – Application for judicial review – certificate issued under s.359A of the Migration Act 1958 – certificate invalid – where material significant to the fact finding process was not disclosed to the applicant – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.359A, 375A Migration Regulations 1994, Sch.2, cl.886.225 |
| Cases cited: Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 |
| First Applicant: | JESMIN AKTER |
| Second Applicant: | ZIAUR RAHMAN |
| Third Applicant: | LIA ZAVIRA RAHMAN |
| Fourth Applicant: | ARYA ZUNAIRAH RAHMAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1501 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 10 September 2018 |
| Date of Last Submission: | 10 September 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 10 December 2018 |
REPRESENTATION
| Counsel for the Applicants: | Mr Solomon-Bridge |
| Solicitors for the Applicants: | Carina Ford Immigration Lawyers |
| Counsel for the First Respondent: | Mr Goodwin |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue, quashing the decision of the Second Respondent dated 24 June 2016.
A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law.
The First Respondent pay the Applicant’s costs fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1501 of 2016
| JESMIN AKTER |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 24 June 2016. That decision affirmed a decision of the delegate not to grant the applicants Skilled (Residence) (Class VB) visas.
The applicants are citizens of Bangladesh with the first and second named applicants arriving in Australia as the holders of student visas. The third and fourth named applicants are their children.
The applicants applied for the visas on 25 June 2009. On 20 July 2015 a delegate to the Minister refused to grant the visa on the basis that the first named applicant did not satisfy cl.886.225 of Schedule 2 to the Migration Regulations 1994 as the applicant did not satisfy Public Interest Criterion (‘PIC’) 4020.
PIC 4020 relevantly provides:
4020 (1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5 reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
…
(3)To avoid doubt, subclauses (I) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (I )(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information
The Tribunal outlined the applicants circumstances when applying for the visa at [6] as follows:
6. …Ms Akter’s nominated occupation is cook. She completed courses in Melbourne in 2008 and 2009, being Certificate III in Commercial Cookery and a Diploma in Hospitality Management. She obtained a skills assessment from TRA (Trades Recognition Australia), dated 20 September 2008, (“the skills assessment”). The Department’s file contains a copy of the skills assessment. The skills assessment was “successful”. It was expressly based on matters including “900 hours work experience” and documents including “Work experience documents”. The Department’s file contains a copy of a work reference dated 25 August 2008 signed by Mr Haque (“the work reference”), proprietor of Dhaka Restaurant (“the restaurant”) in central Melbourne where Ms Akter was said to have performed over 900 hours’ work in 2007-2008.
In 2011 officers from the department conducted a site visit at the restaurant, where Mr Haque advised the officers the applicant did not complete the required 900 hours. In accordance with s.359A of the Migration Act 1958, the applicant was provided with an opportunity to comment on the adverse information. The applicant’s submission in response to the notice was to the effect that Mr Haque had a different version of the site visit and provided statutory declarations outlining the version of events that she alleged: see [7] and [8].
Tribunal’s Findings
The issue before the Tribunal was whether the skills assessment was a bogus document, as a result of false or misleading information being the work reference that stated the applicant has worked for 900 hours or more.
The Tribunal noted that the applicant had ‘acknowledged in effect that she has given or caused to be given to the Minister the skills assessment and the work reference’: see [17]. The Tribunal went on to consider the evidence before it.
In relation to a site visit by the department’s officers, the Tribunal noted that it appeared handwritten notes where prepared during the visit and a typed version settled at a later time. The Tribunal accepted the applicant’s concerns about the variations between the handwritten notes and the typed version but concluded:
19. …The Tribunal does not consider that they [the typed notes] should be given no weight, but the Tribunal does consider that they should be given less weight than the handwritten notes. For this reasons the Tribunal directs its consideration to what appears in the handwritten notes).
The Tribunal considered the evidence of Mr Haque’s version of the site visit including his explanation for not identifying the applicant in a photograph. Mr Haque declared the photograph was ‘unclear’ (at [20]), that he ‘had a number of trainees at the restaurant. The passage of time meant that he could not remember them all’ (at [21]), and that he was put ‘on the spot’ at the site visit and he did not recall saying the applicant did not work 900 hours.
The Tribunal considered the applicant’s submissions in relation to the delay from when she worked at the restaurant (2007 to 2008) to the site visit in 2011 and took the delay into account: see [12]. The Tribunal considered the applicant’s submission that the only adverse information was the site visit and that this was given ‘disproportionate’ weight by the delegate given the records kept: see [13].
The Tribunal states at [23]:
23. …Nevertheless, on the basis of what appears in the sections of the handwritten notes referred to so far – and taking into account the observation that the Tribunal makes that the photocopy of the relevant photograph does not support the assertion that the photo was unclear the Tribunal reasonably suspects that the skills assessment was obtained because of false or misleading statement…
The Tribunal considered the applicant’s submissions that there was a misunderstanding between Mr Haque and the department officers. The Tribunal did not accept that submission based on the handwritten notes, and commented that even if it did, there were other issues with the applicant’s application: see [28].
The Tribunal considered the evidence produced by Mr Haque, in relation to the hours and wages record. The Tribunal noted the document suggested ‘it was filled in not progressively but at the one time’, to which it is said Mr Haque conceded. The Tribunal did not accept that the hours and wages record was ‘an objective and contemporaneous record’: see [29].
The Tribunal considered the evidence of Mr Islam, a friend who drove the applicant to work. The Tribunal noted the inconsistencies in Mr Islam’s evidence of the days he drove the applicant and the days she said she worked, and the Tribunal did ‘not accept that the problem was that Mr Islam was nervous or confused or forgetful’: see [31].
The Tribunal considered the applicant’s claims regarding a photograph of her used by the department during the site visit – that she was not wearing a hijab in the photograph and her evidence was that she normally does wear a hijab in public. The Tribunal did not accept this evidence saying at [33]:
33. …When Ms Akter told the Tribunal that she removed her hijab for the purpose of being photographed she did not qualify that further. Mr Islam did not qualify his evidence either. The problem is not merely the conflict in the oral evidence. The problem is also that in his statutory declarations as well as in his oral evidence Mr Haque said nothing about the presence or absence of a hijab contributing to difficulty in recognising Ms Akter’s when officers showed him her photograph.
Ultimately, the Tribunal concluded:
34. All these matters lead the Tribunal to reasonably suspect that the skills assessment was obtained because of a false or misleading statement. This means that the Tribunal is not satisfied that there is no evidence that Ms Akter has given or caused to be given to the Minister a bogus document. Having regard to all the evidence the Tribunal further is not satisfied that there is no evidence that Ms Akter has given to the Minister information that is false or misleading in a material particular in relation to the visa application. Whether or not Ms Akter possibly worked in the restaurant for a shorter period of time, the false or misleading information is that she worked for 900 hours or more.
The Tribunal then went on to consider its discretion as to whether there were ‘compassionate or compelling’ reasons justifying the granting of the visa. The Tribunal summarised the applicant’s claims in this regard at [42]:
42. In summary, the following information relevant to waiver was put forward. Ms Akter's older child, aged nine, has established roots at her primary school. That child has been in Australia since the age of two and has never been to school in Bangladesh. Ms Akter and her family have a house and investment property (in Australia, it is implied) on which there is a mortgage. The family is actively engaged in the Australian community. Mr Rahman is employed by a cleaning company as site manager at an important facility. The family attends their local mosque. They pay taxes. There is no allegation that Ms Akter has a history of attempting fraud. Mr Islam's wife has recently given birth. She intends to return to work and is relying on Ms Akter providing full-time care to the children. Without that, Mr Islam his wife would have to live off one income and would suffer financial hardship. Ms Akter does not have family in Bangladesh. She and her family would now struggle to re integrate in Bangladesh. It would not be in Australia's interests to force a family to leave who are so deeply rooted in the Australian community.
The Tribunal noted the passage of time would be difficult and while the applicant’s family were in the United States, the second applicant’s family remained in Bangladesh: see [44]. The Tribunal considered the submission that the applicant was to provide child care for Mr Islam’s child, but found that this did not give rise to compelling or compassionate circumstances.
The Tribunal concluded that the applicant did not satisfy the requirements for the grant of the visa, and the other members of the family unit also did not satisfy the requirements.
Grounds of Application
The amended application filed 13 August 2018 contains five grounds. The applicant addressed these grounds by commencing with ground 4, then ground 1, grounds 2 and 3, and finally ground 5. It is convenient to follow this course in the judgment due to the issues that arose under the various grounds.
Ground 4
Ground 4 is in the following terms:
4. Further or alternatively, the Second Respondent committed jurisdictional error by failing to make findings as to whether the Applicant had worked at Dhaka Restaurant at all.
Particulars
PIC 4020(4), and Departmental policy, called for the weighing of the gravity of the applicant's fraud against the claimed compelling and compassionate circumstances. To determine the gravity of the fraud, the Tribunal was obliged to make findings as to whether the Applicant worked at all for Dhaka Restaurant or whether she had worked for Dhaka Restaurant but for fewer than 900 hours.
The commencement point for the argument by the applicant under ground 4 is the statement by the Tribunal at [34]:
34. …Whether or not Ms Akter possibly worked in the restaurant for a shorter period of time, the false or misleading information is that she worked for 900 hours or more.
This finding follows a lengthy discussion of the evidence with respect to the amount of work that she had carried out.
When turning to consider PIC 4020(4), the relevant passages of which appear above, the applicant says that the Tribunal had to make findings as to the circumstances arising under PIC 4020(1) in order to properly make a determination under PIC 4020(4). That is, it is argued that the Tribunal was obliged to conclude or to make findings as to whether or not the applicant had worked for any period of time, and if so the extent of that work rather than leaving open the question of whether or not she did carry out any work and the period of work that she may have carried out, as they did in [34]. This argument was developed on the basis that it is important for the Tribunal to have regard to the circumstances of the fraud that they suspected her of carrying out, in order to properly consider the application of PIC 4020. This is said to be necessary as the Tribunal must consider the gravity of the fraud and weigh this against the circumstances of the applicant’s claims within PIC 4020(4).
I cannot accept that the Tribunal necessarily had to make findings of fact as to the precise extent of the work carried out by Ms Akter. On the evidence before them, the Tribunal member may not have been able to make any specific finding in this regard, and indeed the finding that was made (at [34]) may have been the full extent of the findings that the Tribunal member felt comfortable making. This, nonetheless, provides a context in relation to the circumstances of the alleged fraud. That it was not at the most serious end of the scale is apparent from the statements of the Tribunal member at [43]:
43. The evidence does not indicate a history of fraud, but the circumstances surrounding the failure to meet the requirements of PIC 4020 are serious.
I am not persuaded that the lack of more detailed findings with respect to her period of employment (which the Tribunal may not have been able to make on the evidence before them), shows that the Tribunal failed to take into the account the circumstances of the alleged fraud, particularly having regard to the statement at [43].
The applicant went on to argue that the Tribunal member had erred in considering PIC 4020(4)(a) on the basis that the member focussed upon Australia’s trade or business opportunities and economic benefits, referring to the first sentence of [46]:
46. The evidence does not show that Australia’s trade or business opportunities would be adversely affected or that Australia would miss out on a significant economic or other benefit of the kind mentioned in policy, or other compelling circumstances affecting the interests of Australia…
It does not seem to me that the first sentence of [46] should be read in that way, as it clearly leaves open the possibility of other compelling circumstances affecting the interests of Australia.
The Tribunal member had regard to the law on this topic setting out (at [37]):
37. The expressions ‘compelling circumstances’ and ‘compassionate or compelling circumstances’ are not defined for these purposes. To be compelling, the circumstances must force or drive the decision-maker irresistibly to be satisfied: see Plaintiff M64/2015 v MIBP [2015] HCA 50. The ordinary meaning of ‘compassionate’ relates to feelings of sympathy, sorrow, pity or concern for others. As summarised by Bromberg J in MZYPZ v MIAC [2012] FCA 478 at [10] – [12], “compelling reasons” means reasons which are sufficiently convincing to move the decision-maker to exercise its discretion to waive the requisite criteria: Paduano v MIMIA [2005] FCA 211 at [39] (Crennan J). The circumstances must be sufficiently powerful to lead a decision-maker to make a positive finding in favour of waiving the required criteria: Babicci v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 77 at [24] (Tamberlin, Conti and Jacobson JJ). His Honour noted that “[u]ltimately, the question is whether the circumstances as a whole compel the decision-maker to exercise the discretion conferred”. The ordinary meaning of “compassionate circumstances” is circumstances that give rise to sympathy or pity: Australian Concise Oxford Dictionary, Fifth Edition.
The applicant says that the loss of this family from Australia (as described in [42] of the decision) should be seen as a general form of loss to the community members of Australia and, therefore, affecting the interests of Australia.
It is difficult to understand how simple membership of the community, even described in such positive terms as it was in [42], could amount to compelling circumstances that affect the interests of Australia. This argument does not appear to me to be of such significance that specific reference to it was required, rather it is subsumed in the generality of the first sentence of [46]. I am not persuaded that in this respect the Tribunal member made a judicially reviewable error.
The applicant did not pursue the argument with respect to subparagraph (b) of PIC 4020(4), given that in substance it was a claim that an Australian citizen, whose wife had recently given birth, would lose his option of relying upon the applicant for childcare. Similarly, this could not been seen as compassionate or compelling circumstances under the Act, particularly in the circumstances as found by the Tribunal.
Grounds 2 and 3
Grounds 2 and 3 were framed as follows:
2. The Second Respondent committed jurisdictional error in failing to consider the Applicant's claim that there were compelling circumstances affecting the interests of Australia, viz. it would not be in Australia's interests to force a family to leave who were so deeply rooted in the Australian community.
3. Further or alternatively, the Second Respondent committed jurisdictional error by inflexibly applying government policy to the effect that only where trade or business opportunities would be adversely affected or where Australia would miss out on a significant economic or other benefit of the kind mentioned in government policy would the power to waive compliance with PIC 4020(1) be triggered.
The substance of ground 3 has already been discussed above.
The point, as discussed above, is further developed relying upon the statement in the Policy Advice Manual (at supplementary Court Book p.35) as follows:
PIC 4020(4)(a)
There may be compelling circumstances affecting the interests of Australia if:
·Australia's trade or business opportunities would be adversely affected were the person not granted the visa (Note: under policy, gaining employer sponsorship is not considered sufficient grounds for a waiver)
·Australia's relationship with a foreign government would be damaged if the person is not granted the visa or
·Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa.
It is departmental policy that compelling circumstances affecting the interests of Australia would not include circumstances where the applicant merely claims that, if granted the visa, they would:
·work and pay taxes in Australia
·pay fees to an education provider or
·spend money in Australia.
I am not persuaded that the Tribunal in this case felt unduly constrained by the Policy Advice Manual, noting that even in the Policy Advice Manual matters other than economic matters are listed (for example cultural or other development).
As a result, I am not persuaded that the applicant has made out these grounds.
Ground 1
It was argued that the Tribunal acted irrationally in reaching the conclusion that it did. The applicant focusses upon the comments (at [23]) that:
23. It is the case that years passed between the time Ms Akter was said to have been one of the trainees at Mr Haque’s restaurant and the day of the site visit. Further years passed between the day of the site visit and the time Ms Akter was invited by the Department to comment about that and Mr Haque made his first statutory declaration. Another year has passed since then. Nevertheless, on the basis of what appears in the sections of the handwritten notes referred to so far – and taking into account the observation that the Tribunal makes that the photocopy of the relevant photograph does not support the assertion that the photo was unclear – the Tribunal reasonably suspects that the skills assessment was obtained because of a false or misleading statement that Ms Akter worked at the restaurant for 900 hours or more. In this context it is important to note not only that it was claimed that Ms Akter worked for many months. It is also important to note that the work reference states she worked under Mr Haque’s “direct supervision and observation”, graduating after six months’ basic learning to learning higher level skills. It is to be expected that had that all been so then even after a few years there would not have been any uncertainty on Mr Haque’s part about Ms Akter and her completion of 900 or more hours’ work at his restaurant.
The applicant says that when one looks at the photographs, the Tribunal’s conclusion was not reasonably open to it, or was irrational. Copies of the photographs appear in the supplementary Court Book at pp.9 and 11, and in the material produced by the Minister annexed to an affidavit relied upon with respect to ground 5. Having observed the photographs, as reproduced in the supplementary Court Book, I’m not persuaded that the quality of them is such that it was not open to the Tribunal to rationally reach the conclusion that it did.
The recounting of the comments by the employer in the supplementary Court Book (at pp.5 and 9) are:
Reference for [Jesmin Akter], MH does not think she worked for him, thinks this might be #4. If she did work it would not have been for a full 900 hours. “She should have a log book”. MH stated we should check this.
At p.9, the comment next to the photograph was:
Not 100 % sure – looks like she worked for me Jesmin [Akter] (reference).
Mr Haque then gave different versions in his statutory declarations that appear in the Court Book, including (Court Book p.123, at [9]):
9. I can confirm that I know Ms Jesmin Akter, although I might not be able to readily recognise her from an unclear picture, given the fact that it has been a few years since she had worked for me. She used to work in my restaurant and her nick name was Lima. I issued a reference letter back in 2008 confirming that she had completed over 900 hours work experience in my restaurant.
And (Court Book p.206, at [5]):
5. On 27 May 2011, some three years after Jesmin had finished her work experience with me, three people from DIBP came to my restaurant in Lonsdale Street. They came in the morning at around 9.30am which is prior to the restaurant opening for customers and generally I am organizing the day for prep work before the lunch service. I was shown 10 photos and asked whether I recognised the people in the photos. The quality of the photos was not great and I struggled at times to identify the people in the photos. I remember noting the grainy quality of the photos to the people from DIBP at the time. Despite this, I was able to identify Jesmin or I may have said her name was Jesminer being her nickname.
Though Mr Haque also said (appearing at Court Book p.206, [7]):
7. I do remembering stressing at the time that I kept a log book for each employee who worked in my restaurants and that this would be the surest way to confirm who was working at the restaurant and the hours they worked. This comment has been reflected in the site visit notes. I also told the DIBP people that I had quite a few trainees in the past and because of the passage of time it was very difficult for me to remember all of their faces and names of the top of my head especially when put on the spot in an unexpected site visit. At or around the time Jesmin was at our restaurant there were many overseas students looking for voluntary work in order to meet the TRA assessment requirements. I like many other restaurants assisted these students by giving them the relevant work experience so clearly Jesmin was not the only person who had done her 900 hours with me. It is not in interest to not comply with the requirements of the 900 hours for Jesmin.
When one inspects the log book that was produced (at Court Book pp.125 to 127), the period set out in the top right-hand corner is said to be from September to October 2007, yet the entries on the pages were for a much longer period.
When the applicant was asked about a log book (at supplementary Court Book p.61) she said that sometimes she kept a log book, but said she doesn’t have it any more and hadn’t kept it. The applicant then went on to say that she had a student log book at that time, although no log book was ultimately produced. The evidence of the applicant was that she was never paid for any of the 900 hours of work. The Tribunal recounted that Mr Haque and the applicant both said that the applicant had signed the log book, however the only log book produced did not have signatures from the applicant.
A variety of other differences appeared in the evidence, as set out in the Tribunal reasons. For example, evidence by the applicant’s friend,
Mr Islam, who said that he understood she had worked at the restaurant for six months, when it was in fact 10 months (an inconsistency that the Tribunal thought may be reasonably explained by the passage of time). Mr Islam also said that the applicant had worked Tuesdays and Fridays and sometimes on the weekend, but not every weekend, which appeared inconsistent with the log book that was produced showing her working every weekend. Mr Islam’s evidence was also that he drove the applicant to work on Tuesdays.
All of the matters raised by the Tribunal are capable of logically leading it to the conclusion that it reached of reasonably suspecting that the applicant’s skills assessment was obtained because of a false and misleading statement. The applicant has not established a ground for judicial review in this regard.
Ground 5
The fifth ground concerns a certificate that was issued by the department to protect various documents from disclosure to the applicant. The ground is framed as follows:
5. The Second Respondent committed jurisdictional error by acting upon a certificate purportedly issued under s 375A of the Migration Act 1958 which was invalid and/or by failing to afford the Applicant procedural fairness.
Particulars
The particulars of invalidity are as follows:
The reasons certified by the delegate of the First Respondent under s 375A(1)(a) of the Migration Act (alternatively, some of them) could not provide a sufficient basis for finding that the disclosure of the matter contained in the document or the information would be contrary to the public interest.
The particulars of procedural unfairness are as follows:
The Second Respondent had before it a certificate issued under s 375A of the Migration Act, but failed to give the Applicant a copy of the certificate, and failed to give the Applicant an opportunity to make submissions as to the validity of the certificate.
The certificate (which appears at Court Book p.178) is as follows:
CERTIFICATE REGARDING DISCLOSURE OF CERTAIN INFORMATION TO ADMINISTRATIVE APPEALS TRIBUNAL UNDER s375A OF MIGRATION ACT 1958
I certify that, in accordance with s375A of the Migration Act 1958, the disclosure, otherwise than to the Administrative Appeals Tribunal of any matter or information contained in the attached information relating to file number BCC2009/234647 would be contrary to the public interest because:
(a) The documents contain information pertaining to other persons not related to this application. Release of this information could compromise the safety and/or integrity of the individuals.
(b) Information in the screenshot and site visit reports relates to the Department's core business and internal decision making processes and if released could be detrimental to the way DIBP conducts its business.
(c) This non-disclosure certificate by association to (a) and (b) above should also not be released.
As s375A applies to the documents/information identified above, the AAT must do all that is necessary to ensure that the document or information is not disclosed to any person other than to a member of the AA T, pursuant to s375A(2)(b) of the Migration Act 1958.
It was accepted by counsel, for the purpose of these proceedings, that the term ‘public interest’ as it appears in s.375A is not limited to public interest as the term is understood in applying the privilege test in judicial proceedings.
The certificate was provided to the applicant’s advisor and no challenge was made to the certificate at the time. However, if the certificate is not a valid certificate, the failure of the advisor to challenge it at the time does not resolve any difficulties that are presented.
The documents were produced to the court and the applicant for the purpose of the argument about the validity of the certificate. The contents of the documents were the records of the site visit at Mr Haque’s restaurant, and the inquiries that were made about a number of different employees.
It is not possible to understand how it could be said that disclosure of this information could affect the safety of the individuals concerned, nor the physical or moral integrity of them. There is no suggestion that there is any risk of misconduct by any of the persons involved – they are simply a group of people who are alleged to have worked at the restaurant.
It is also argued that the material would disclose core business and internal decision-making processes if released, however, the contents of the material appear to be the types of notes that one would ordinarily expect if a site visit occurred to check upon claims made in this type of case. There is nothing in the material to indicate the process by which the department determined whether or not to make this particular site visit, or any other specific steps that may have been undertaken in preparation. It is simply the notes of the attendance and inquiries made of the business operator.
The final claim, that the certificate itself should not be disclosed, is almost nonsensical, and was not accepted by the Tribunal member who did provide the certificate to the applicant.
I am not satisfied the certificate is a valid certificate under s.375A as there does not appear to be material covered by the certificate which would provide a basis for concluding that the material would compromise the safety or integrity of individuals in it (save perhaps to the extent that privacy considerations may result in the other individuals’ names being replaced by pseudonyms or being deleted), nor is there anything in the material that appears capable of resulting in some detriment to the way the department conducts its business.
The significance of the material in the context of this case is the fact that, with respect to the balance of the photographs shown to Mr Haque, he was able to confidently identify the persons in those photographs. In the context of a case where:
a)there has been a significant delay before inquiries; and
b)an employer that has had a large number of visa applicants working for them;
Mr Haque’s capacity to identify with confidence the other persons in the photographs stands in stark contrast to his lack of assurance of the identity of the applicant in her photograph. Similarly, the details that he was able to give relating to the other persons is also in stark contrast to the lack of memory that he had of the applicant. This evidence must have been significant in assessing the weight to be placed upon Mr Haque’s evidence by the Tribunal, but is nowhere mentioned in the decision.
It is argued that these matters were not mentioned in the decision because of the requirements of s.375A(2)(b) and that as a result, these matters were not taken into account by the Tribunal. This led to the response from counsel for the applicant that the question of apprehended bias arises if the Tribunal were aware of these materials and had not shared them with the applicant.
Arguably, the material will further worsen the applicant’s already difficult case. Whether it would simply worsen her case is difficult to say without her having an opportunity to respond to it. The result of the invalid certificate was that the material, which is significant to the fact-finding process by the Tribunal, was not disclosed to the applicant, leading to concerns that the applicant did not have an opportunity to respond to it and that the Tribunal may have taken it into account but did not mention it in the decision.
Counsel for the Minister relied on the comments in Minister for Immigration and Border Protection v BJN16 [2017] FCAFC 197 at [73] that:
73. There are numerous cases in which FCC judges have received evidence and examined such documents and gone on to hold that the failure to disclose the existence of the notification did not give rise to a denial of procedural fairness. Many of them preceded the trial judge’s decision in the present proceeding: see, for example, BZV15 v Minister for Immigration and Border Protection[2017] FCCA 981; ALP15 v Minister for Immigration and Border Protection[2017] FCCA 1418; SZMJM v Minister for Immigration and Border Protection[2016] FCCA 2884; SZVCP v Minister for Immigration and Border Protection[2016] FCCA 3333; DBF16 v Minister for Immigration and Border Protection[2016] FCCA 3291; BIE15 v Minister for Immigration and Border Protection[2016] FCCA 2978; BEG15 v Minister for Immigration and Border Protection (2016) 315 FLR 196; [2016] FCCA 2778; and BJD16 v Minister for Immigration and Border Protection[2016] FCCA 2537. In each of these cases the FCC received the documents, covered by the relevant s 438(1) notification, into evidence. In most cases the documents had been exhibited to a solicitor’s affidavit and had been read without objection by the applicant. In one case the Minister had simply incorporated the documents in the court book prepared prior to trial: see DBF16 at [36]. In each of these cases MZAFZ was distinguished. In those cases which post-dated delivery of judgment in Singh, that judgment too was held not to prevent the FCC from examining the documents and taking them into account for the purpose of determining whether the fact that the documents had been before the Tribunal without the knowledge of the applicant had given rise to any practical injustice to the applicant.
However, the important part of those reasons is the following paragraph which outlines how irrelevant or innocuous the info was in those cases:
74. For the most part this conclusion was reached in these cases because the material in the documents was found to be completely irrelevant to the issues which fell for the Tribunal’s decision. In BZV15, for example, the material was found to be of a “most mundane character” (at [48]) and was “of the most anodyne nature and did not contain any information adverse to the applicant or [which was] otherwise relevant to the issues that the Tribunal was required to consider” (at [50]). In BEG15, the documents covered by the certificate recorded legal advice about errors in an earlier Tribunal decision which had led the Minister to agree to orders setting aside that Tribunal’s decision. In another judgment, delivered today, we have dismissed an appeal from this decision: BEG15 v Minister for Immigration and Border Protection[2017] FCAFC 198. In another case (CQH16 v Minister for Immigration and Border Protection[2017] FCCA 1498), decided on the same day as the FCC’s decision in this case, the documents covered by the certificate revealed that the Minister’s delegate had utilised an incorrect template when making her decision. Because the Tribunal had conducted a full re-hearing and made a fresh decision on the merits, it was found that the applicant had been in no way prejudiced by the failure of the Tribunal to disclose the existence of the certificate or the contents of the document covered by it.
In no way could it be said that the material here is anything but relevant and significant to the assessment of facts in this case.
I am persuaded that this is a case where relief should be granted, and I order accordingly.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 10 December 2018
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