Arafat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 764
Federal Circuit and Family Court of Australia
(Division 2)Arafat v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 764
File number(s): SYG 2775 of 2017 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 14 September 2022 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) in relation to decision of the Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Skilled visa because the applicants did not satisfy Public Interest Criterion 4020(1) – whether the Tribunal made any irrational or illogical finding of fact in affirming decision – application dismissed. Legislation: Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) Sch 2, Pt 2
Migration Act 1958 (Cth) ss 5, 97, 362A, 476
Migration Regulations 1994 (Cth) reg 1.03, Sch 2, cls 886.223(1), 886.225, Sch 4, PIC 4020
Cases cited: Bari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1819
Sharma & Ors v Minister for Immigration & Anor [2013] FCCA 1280
Talukder v Minister for Immigration & Citizenship [2009] FCA 916
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
Division: General Number of paragraphs: 60 Date of hearing: 23 September 2021 Place: Sydney Counsel for the Applicants: Mr O Jones, by video Solicitor for the Applicants: Parish Patience Immigration Services Solicitor for the First Respondent: Mr G Pasas of Clayton Utz, by video ORDERS
SYG 2775 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MD YEASIR ARAFAT
First Applicant
SAMAIRA YEASIR
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
14 September 2022
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicants pay the first respondent’s costs set in the amount of $7,853.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
introduction
The question that arises on this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) is whether the second respondent (Tribunal) made or relied on irrational or unreasonable findings of fact in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a Skilled (Residence) (Class VB) (subclass 886) visa (Skilled visa) because the applicants did not satisfy Public Interest Criterion 4020 (PIC 4020).
background
On 18 June 2010 the first applicant (applicant), a national of Bangladesh, applied for a Skilled visa.[1]
[1] CB8
Criteria
To have been entitled to the grant of a Skilled visa the applicant was required to satisfy a number of the criteria specified in subclass 886 of Schedule 2 (Schedule 2) to the Migration Regulations 1994 (Cth) (Regulations). Two criteria are relevant.
The first is cl 886.223(1), which required that the “skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation”. The expression “relevant assessing authority” was defined in reg 1.03 of the Regulations to mean a “person or body specified under regulation 2.26B”. There is no issue that the relevant assessing authority in relation to the applicant was Trades Recognition Australia (TRA).
The second relevant criterion is cl 886.225 of Schedule 2, which required the applicant satisfy, among other things, PIC 4020, being a criterion provided for in Part 1 of Schedule 4 to the Regulations. The requirement that an applicant for a Skilled visa satisfy PIC 4020 came into force on 2 April 2011, when it was added as a requirement by the Migration Amendment Regulations 2011 (No. 2) (Cth). PIC 4020 relevantly provided as follows:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
. . . .
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4)The Minister may waive the requirements of any or all of paragraphs (1) (a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Regulation 1.03 of the Regulations (as they stood as at 2 April 2011) defined “bogus document” to have the meaning given to that expression by s 97 of the Act which then provided:[2]
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
[2] The definition of “bogus document” is currently contained in s 5 of the Act.
It would be useful at this point to notice two elements of PIC 4020(1). The first is the requirement that there be “no evidence” that any information the applicant provided to the Minister, an officer, the Tribunal, a relevant assessing authority, or a Medical Officer of the Commonwealth is false or misleading in a material particular. A “finding that there is “evidence” must lead a decision-maker to the non-discretionary conclusion that PIC 4020(1) is not satisfied”.[3] A second element is the notion of “evidence” itself. Edmonds J explained the meaning of “evidence” in Talukder v Minister for Immigration & Citizenship:[4]
In my view, the word ‘evidence’ is used, in contradistinction to the word ‘information’, which is also used in the clause, to impose a requirement that, whatever facts are conveyed by the material relied upon to establish that the information given to meet the requirements of item 1128CA(3)(k) of Schedule 1 was false or misleading in a material particular, are sufficiently probative to lead to that conclusion.
[3] Bari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1819, at [18] (Judge Lucev)
[4] Talukder v Minister for Immigration & Citizenship [2009] FCA 916, at [20]
As I noted in Sharma & Ors v Minister for Immigration & Anor:[5]
Applying this passage to PIC4020, “evidence” is used in PIC4020 to impose a requirement that whatever facts are conveyed by the material relied upon to establish that information given in connection with the application for a skilled visa was false or misleading in a material particular, they must be facts that are sufficiently probative to lead to that conclusion. Stated more simply, “evidence”, as that word appears in PIC4020, means material that is sufficiently probative to lead to the conclusion that information given in connection with the application for a skilled visa was false or misleading in a material particular.
[5] Sharma & Ors v Minister for Immigration & Anor [2013] FCCA 1280, at [36]
Material submitted in support of application for a Skilled visa
In his application for a Skilled visa the applicant specified “cook” as his nominated occupation; and he stated that on 9 December 2009 he had applied to TRA.[6] The applicant stated that he was being sponsored by an “eligible relative”, namely, his sister.[7]
[6] CB11
[7] CB25
The applicant provided a number of documents in support of his application for a Skilled visa. One was a letter purportedly from the Department of Education, Employment and Workplace Relations to the applicant (DEEWR letter).[8] The DEEWR letter the applicant provided contains two pages, the first page of which is as follows:
[8] CB37
Skilled Worker Program Review Result
Trades Recognition Australia (TRA) Ref: TRA09/149261105
Thank you for your application for an internal review of TRA’s opinion in relation to your application for a skills assessment for migration purposes. The information you provided has been forwarded to the Department of Immigration and Citizenship.
If your previous application for skills assessment was received by TRA prior to 1 January 2010, this review was assessed against the criteria in place prior to 1 January 2010. The effective assessment date for such assessments is 2009.
Your application was SUCCESSFUL. Your occupation is Cook 4513-11
If the occupation shown above is not the occupation in which you requested recognition, it is because you could not satisfy TRA's assessment requirements for that occupation.
The evidence relating to your Certificate has satisfied the requirements set out at section 12 of the Skilled Worker Program Assessment Criteria.
The evidence provided has satisfied 900 hours directly related work experience set out at section 12 of the Assessment Criteria.
On arrival in Australia, you may be subject to further testing, assessment or State Government licensing or registration requirements. This process depends on your occupation and where you choose to live and work. Occupational Licences are issued by State licensing bodies. Please refer to the occupation specific information available on the DIAC website, which includes details of State licensing contracts . . .
I encourage you to find out about these requirements before you migrate.
For further explanation about the assessment process, refer to the Skilled Worker Program Assessment Criteria and other information available on our website at after you have read the information on our website you are still uncertain as to why you have received this outcome, you can request feedback by telephoning the TRA National Enquiry Line on; +61 2 6121 7456 or by emailing [email protected].
Please note: TRA may withdraw your successful skills assessment outcome and inform the Department of Immigration and Citizenship where it is later found that you have provided false or misleading information.
Notification that the application is finalised was emailed to the applicant at kuram . . . @yahoo.com
The second page of what purports to form part of the DEEWR letter contains a table which shows that the applicant had provided “[t]raining documents”, and “[w]ork experience documents”, and that he had satisfied the requirement of 900 hours work experience.
The applicant also submitted a letter purportedly signed by a Mr M R Mondal on 30 November 2009 in his capacity of director of Montoora Holdings Company Pty Ltd, and a Mr M A Hossain, in his capacity of “Head chef” (purported 30 November 2009 Mondal letter).[9] The letter is addressed to the applicant, and is headed “To whom it may concern”. The purported 30 November 2009 Mondal letter certified the applicant was employed at the Moti Mahal Indian Restaurant (Restaurant) from 1 October 2008 to 13 November 2009, and that the applicant “has undertaken cooking duties for 920 hours as a voluntary worker under the supervision of our qualified chef”. The purported 30 November 2009 Mondal letter also described in detail the tasks the applicant purportedly performed at the Restaurant.
[9] CB40
First invitation for comment
There is in evidence a document titled “Operation Lodge Site Visit – NSW” (OLSV Document) created by an officer or officers of the Department of Immigration and Citizenship (as the Department of Home Affairs was then known) (Department).[10] The OLSV Document that is in evidence is the document the Tribunal released to the applicant in response to a request the applicant made under s 362A of the Act,[11] and is redacted to remove the names of a number of people. The OLSV Document records information in relation to two restaurants. The first is the “Moti Mahal Darlinghurst (no longer in business)” (Darlinghurst restaurant); and the second is “Moti Mahal Ramsgate (Mantoora Holdings)”, that is, the Restaurant. In relation to the Darlinghurst restaurant, the OLSV Document records as follows:
(a)On 23 March 2011 officers of the Department visited the Restaurant and spoke to a person who it may be inferred the Departmental officers believed to be the owner of the Restaurant (Apparent Owner). The Apparent Owner told the Departmental officers that the Darlinghurst restaurant had been owned by Mr Mondal, but was sold in 2010. The Apparent Owner said he had not been involved in that restaurant.
(b)On 24 March 2011 officers of the Department visited the Darlinghurst restaurant. The officers were told that the Darlinghurst restaurant now served Malaysian and Italian food, and the staff knew nothing about the previous restaurant.
(c)On 24 March 2011 Mr Mondal attended the Department’s office. He said he owned the Darlinghurst restaurant for three to four years and sold it in 2010. Mr Mondal was shown a “photo board”, and he identified two persons. Mr Mondal verified the references as correct for those two persons, but he was unable to verify the references in relation to one or two other persons.[12]
(d)The “owner (at the time of work claimed by the applicants)”, who I infer is intended to be a reference to Mr Mondal, was “unable to verify with any certainty that any of these applicants worked for the restaurant as stated” (emphasis in original); and although Mr Mondal was able to recognise the photo of one person, he was “unable to identify photo and/or employment reference” for five persons.
[10] CB206
[11] CB197; CB200
[12] I say “one or two persons” because the OLSV Document is redacted, and it is not clear whether one or two persons are named.
In relation to the Restaurant, the OLSV Document records the following:
(a)On 23 March 2011 Departmental officers visited the Restaurant unannounced. They introduced themselves to the “new owner”, who I infer is the Apparent Owner. The Apparent Owner told the officers he bought the Restaurant in 2008, and the “full contract came into effect on 20 February 2010”. Between those dates Mr Mondal had little to do with the Restaurant, other than GST; and from December 2008 the Apparent Owner was responsible for all employment matters in the Restaurant. The Apparent Owner further stated that Mr Mondal should not have been providing references after December 2008. When shown the “photo board”, the Apparent Owner could recognise a number of persons.
(b)On 24 March 2011 Mr Mondal attended the Department’s office. Mr Mondal said he sold the business in February 2010 and had full involvement in the Restaurant as manager. Mr Mondal said he kept no records for his volunteer labour, noting that “the hours would be drawn up by the chef to match the required 900 hours and the days available”. Mr Mondal recruited his volunteers from the Indian community. Mr Mondal “recognised [redacted] and [redacted] but was unable to name when presented with the photo board”. He verified a number of references, but he was not prepared to verify one reference because he did not recognise the name, and he had not signed the reference.
In a letter dated 11 August 2016 to the applicant (to which I refer later), the Department made the following statement which I infer the Department prepared on the basis of the (unredacted) information recorded in the OLSV Document:[13]
[13] CB150
On 23 March 2011, the Department of Immigration and Border Protection (DIBP) conducted an investigation into Moti Mahal Indian Restaurant. The officers talked to the owner of the restaurant who stated the following:
✃He bought the Moti Mahal Restaurant at 195 Rocky Point Road Ramsgate in December 2008 and the full contract came into effect on February 2010;
✃He did not know the applicant or if the applicant has ever worked for the restaurant when he was presented with the photo of the applicant. He had no evidence of the applicant’s employment at the restaurant; and
✃He was the one responsible for all employment matters from December 2008;
✃Mr Mondal, the previous owner and signatory on the applicant’s work reference, had little to do with the restaurant from December 2008 and thus he should not have been providing work references after the date.
On 24 March 2011 at 15:00, the previous owner Rashid Mondal attended the department’s office and was interviewed by the officers from the department. Mr Mondal declared the following:
✃He sold the business in February 2010 and had full involvement as the restaurant manager up to the time;
✃He kept no records for his volunteer workers;
✃The working hours were organised by the chef to match the required 900 hours and the day available;
✃There were 7 people working in each kitchen and 5 waiting staff;
✃He recruited volunteers from the Indian community as they knew how to cook Indian food;
✃When shown photos of a number of visa applicants, including the applicant, he was able to recognise some applicants and verified a number of work references. However, he was not able to recognise Md Yeasir Arafat.
By letter dated 11 August 2015 the Department informed the applicant that on 24 March 2011 the Department conducted an investigation into the Restaurant.[14] The letter stated the Restaurant had two owners during the period 2008 and 2010, but neither owner was able to verify the applicant’s identity, or confirm that the applicant had completed work experience “at Trivelli Bakery”. The letter invited the applicant to comment “on the information that is considered to be false or misleading or the document that is considered to be bogus, and specify if” the applicant believes there are reasons that would justify the waiver of PIC 4020(1) and (2).
[14] CB92
The applicant responded by an email his migration agent sent to the Department on 7 September 2015.[15] In her email the applicant’s migration agent stated that the applicant never worked, and did not claim to have worked at Trivelli Bakery; and attached three documents. One is a letter purportedly signed by Mr Mondal dated 5 September 2015 addressed to the applicant and headed “To whom it may concern” (purported 5 September 2015 Mondal letter).[16] The purported 5 September 2015 Mondal letter certified the applicant was an employee at the Restaurant from 1 October 2008 to 13 November 2009; Mr Mondal operated the Restaurant from 2001 to September 2014 at 195 Rocky Point Road, Ramsgate, after which Mr Mondal relocated the business to 237 Rocky Point Road, Ramsgate; Mr Mondal ensured the applicant had undertaken cooking duties for 920 hours as a volunteer worker “under the supervision of our qualified chef”; the applicant’s job “entailed extension work on the curry section, tandoori section and general kitchen duties including food ordering and food preparation”; and that all documents regarding the applicant’s job responsibilities “with us [has] been submitted previously”. The purported 5 September 2015 Mondal letter further stated that neither Mr Mondal nor “my head chef (M. A. Hossain, Mobile: . . . 410) and other staff have received any call or visit from immigration officer regarding” the applicant’s work experience; and, Mr Mondal never had any Trivelli Bakery section in his restaurant.
[15] CB96
[16] CB99
There are a number of observations that may be made about the purported 5 September 2015 Mondal letter: Mr Mondal did not write or sign the letter in his capacity of director of Montoora Holdings Company Pty Ltd or of any other company, but in the capacity of “Owner of Moti Mahal Indian Restaurant”; the purported 5 September 2015 Mondal letter specifies an ABN number (ABN 589 642 141 98) that is different from the (handwritten) ABN number (5312932067) that appears in the purported 30 November 2009 Mondal letter; the purported 5 September 2015 Mondal letter records mobile numbers for each of Mr Mondal and Mr Hossain (0424 . . . 751 and 0422 . . . 410 respectively) that are different from the mobile numbers the purported 30 November 2009 Mondal letter records for each of Mr Mondal and Mr Hossain (0423 . . . 751 and 0432 . . . 314 respectively); the purported 5 September 2015 Mondal letter records in print the address “195 Rocky Point Road, Ramsgate”, being the printed address in the purported 30 November 2009 Mondal letter, but a line is written across the number “195” and to the immediate left there is a handwritten “237”; and the purported 5 September 2015 Mondal letter did not specifically refer to the purported 30 November 2009 Mondal letter.
The second document the applicant’s migration agent attached to the email she sent to the Department on 7 September 2015 is a signed statement made by the applicant.[17] The applicant stated he completed voluntary work experience of 920 hours at the Restaurant from 1 October 2018 to 13 November 2009; the applicant worked from around 4 pm to 11 pm; Mr Mondal was the owner and Mr Hossain was the head chef; the applicant gained experience in different fields which he identifies; and the applicant never worked in any Trivelli Bakery section.
[17] CB100
Second invitation for comment
By letter dated 11 August 2016, after the applicant had provided additional information to the Department, a delegate of the Minister informed the applicant of the matters I set out in paragraph 15 of these reasons.[18] In addition, the delegate referred to the Department’s letter dated 11 August 2015 to the applicant, and the applicant’s response, and in particular the purported 5 September 2015 Mondal letter. After acknowledging the consistency between the purported 5 September 2015 Mondal letter and the applicant’s claims, the delegate said she was concerned with the “considerable discrepancies” between the information Mr Mondal provided on 24 March 2011 and the information in the purported 5 September 2015 Mondal letter about the dates of ownership of the Restaurant; and also about the information Mr Mondal provided on 24 March 2011 and the ownership information contained in the purported 5 September 2015 Mondal letter differing from that provided by the Apparent Owner of the Restaurant as of 23 March 2011. The delegate also noted a concern about both owners not being able to identify the applicant from the photographs presented to them, and there being no records of the applicant having performed any voluntary work at the Restaurant. Additionally, the delegate noted it was concerned about the authenticity of the skills assessment the applicant provided with his application because it did not bear a date of issue.
[18] CB150
The delegate concluded that the discrepancies she identified in the letter raise serious concerns about the authenticity of the applicant’s work experience claims at the Restaurant; the delegate was satisfied the applicant had provided a bogus skills assessment because the delegate reasonably suspected it was obtained because of a false or misleading statement made to TRA about the applicant’s claimed 900 hours work experience with the Restaurant; and, for these reasons, the delegate found the applicant did not satisfy PIC 4020. The delegate, however, provided the applicant with a new opportunity to comment on these findings because the Department’s previous invitation for comment incorrectly identified the name of the Restaurant.
The applicant responded to the further invitation by letter from his migration agent dated 8 September 2016.[19] The migration agent addressed the inconsistencies the delegate identified in her letter of 11 August 2016, and attached a statutory declaration by the applicant made on 6 September 2016, and a statutory declaration made by Mr Mondal on 6 September 2016 (purported 6 September 2016 Mondal declaration). The applicant, in his statutory declaration,[20] confirmed he worked 920 hours at the Restaurant, but also stated the applicant and Mr Mondal “are known to each other after” the applicant worked at the Restaurant.
[19] CB156
[20] CB161
In the purported 6 September 2016 Mondal declaration,[21] Mr Mondal declared he is the “owner of Moti Mahal Indian Restaurant (195 Rocky Point Road, Ramsgate NSW 2217)” where the applicant completed his work experience from 1 October 2008 to 13 November 2009; Mr Mondal operated the business from 2001 to September 2014 after which he relocated the business to the new address at 237 Rocky Point Road, Ramsgate NSW 2217; Mr Mondal is the only legal owner of the Restaurant, and there has not been any other person who has had the authority to speak on behalf of the Restaurant; Mr Mondal’s staff members and cooks “have divulged” they had not received a phone call from the Department; Mr Mondal knows the applicant, and confirmed the applicant worked for him; it has been some time “since the interview”, but Mr Mondal has many staff members and “multiple shops”, and, being the owner, he moved between shops a lot; some people do not look like they do in photos as they do in real life; Mr Mondal remembers he was asked “by Elizabeth to sign behind the photos” and, as far as his memory is concerned, Mr Mondal did sign behind the photo, and it was the photo of the applicant; and Mr Mondal did not receive a call or visit from the Department on 24 March 2011, and that is because Mr Mondal visited the Department on 24 March 2011.
[21] CB159
On 2 November 2016 the delegate refused to grant the applicant a Skilled visa.[22] In its decision record the delegate noted that in support of his application for a Skilled visa the applicant provided the skills assessment recorded in the DEEWR letter, and that, to have obtained that assessment, the applicant supplied to TRA documents to support the 900 hours work experience from the Restaurant. The delegate then set out the checks the Department carried out to confirm that information, being the information contained in the Department’s letter of 11 August 2016 I reproduced in paragraph 15 of these reasons. The delegate concluded as follows:[23]
Therefore, based on the evidence and information before me, I am satisfied that the applicant has given a bogus skills assessment with reference number TRA09/149261105 to an officer in relation to this visa application within the meaning of subsection 97(c) of the Act. This is because, I reasonably suspect it is a document that was obtained because of a false or misleading statement made to TRA, whether or not made knowingly, about the claimed 900 hours work experience from Moti Mahal Indian restaurant.
[22] CB163
[23] CB175
Before the Tribunal
By letter dated 7 July 2017 the Tribunal invited the applicants to appear before it on 2 August 2017 to give evidence and present arguments.[24] By email sent to the Tribunal on 20 July 2017,[25] the applicant’s migration agent provided a completed “Response to hearing invitation - MR Division”, which recorded that Mr Mondal would be available to give evidence. By email sent to the Tribunal on 28 July 2017 the applicant’s migration agent attached the following documents:[26]
[24] CB201
[25] CB213
[26] CB217
(a)A letter from a firm of lawyers stating they acted for Mr Mondal in the purchase of the Restaurant in 2005, and the sale of the Restaurant to Upoma and Co Pty Ltd where “settlement took place on 15 January 2021”. Mr Mondal advised that Upoma and Co Pty Ltd could not run and manage the Restaurant, and “he took over until he took a new lease for the property Ground Floor 237 Rocky Point Road, Ramsgate in 2014”. The letter itself referred to other documents. One of these is a lease over a property at 237 Rocky Point Road, Ramsgate.[27]
[27] CB218
(b)A statutory declaration made by the applicant confirming that he had undertaken volunteer work at the Restaurant from 1 October 2008 to 13 November 2009, and providing details of the discussions he had with Mr Mondal that led to the applicant working as a volunteer at the Restaurant. The applicant further says that Mr Mondal is a very busy businessman, and, the applicant believes Mr Mondal owned at least five other restaurants.[28]
[28] CB227
(c)A document from a Department with a “Due Date” of 7 September 2015 stating there was an “error in notification”.[29] The document stated it appeared the applicant was removed from the “operation courage spreadsheet”, and the applicant’s photo does not appear to have been included in the site visit list.
[29] CB222
(d)A copy of the DEEWR letter, without the schedule but with a poor copy of a page which contains the following printed words (without a signature):
Yours sincerely
[Illegible]
[Illegible]
Trades Recognition Australia19 April 2010
(e)The applicant’s migration agent’s email described the DEEWR letter as “TRA with date (clear copies to be presented at the hearing)”. At the hearing before the Tribunal a clearer copy of the DEEWR letter was provided containing three pages. The second page contains the following printed words (without a signature):
Yours sincerely
CT 2579
Skills Assessor
Trades Recognition Australia19 April 2010
(f)An overseas student confirmation of enrolment in relation to the applicant’s wife.
(g)A letter dated 26 July 2017 from the applicant’s migration agent referring to the above documents and also making submissions.[30]
[30] CB230
The applicant appeared at the hearing before the Tribunal, and gave evidence. Mr Mondal, however, did not appear to give evidence, even though the “Response to hearing invitation - MR Division” the applicant’s migration agent provided to the Tribunal stated that Mr Mondal would give evidence.
According to the Tribunal’s reasons, the applicant said he was currently working as a fork-lift driver; he came to Australia on a Student visa; he studied a diploma of Hospitality Management; he needed to obtain work experience, and was introduced to Mr Mondal who said he could help the applicant; the applicant did volunteer work with the head chef who kept records; there were three to four people in the kitchen; there were volunteers who came and went; Mr Mondal was very busy because he had four or five other restaurants; Mr Mondal would visit the Restaurant all the time; the applicant worked as a volunteer for one year; he started another course in business management, and has been on a bridging visa since 2010; the applicant did some work as an assistant chef, but he gave up; the applicant was not able to say when he gave up that work, other than saying it could be 2011, 2012, or 2013, and he was not sure of the spelling or names of all of the restaurants at which he worked.
tribunal’s reasons
Near the beginning of its reasons the Tribunal considered the meaning of PIC 4020. After setting out what the Tribunal considered PIC 4020 broadly meant, it considered its elements. In particular, the Tribunal set out the meaning of “information that is false or misleading in a material particular”, and “bogus document”. The Tribunal noted that while PIC 4020 refers to information that is false, in the sense of purposely untrue, it further noted that it is not necessary for the Minister (or the Tribunal on review) to conclude that the applicant was aware the information was purposely untrue for PIC 4020 to be engaged.
The Tribunal then set out the procedural history of the applicant’s application for a Skilled visa, and in particular the checks, as set out in the delegate’s decision record, the Department conducted to ascertain the information the applicant provided in support of the TRA assessment was correct. The Tribunal summarised the effect of the Department’s checks as follows:[31]
The Department had, as set out in the Department’s decision, conducted checks and a site visit to ascertain that the information the applicant provided was correct. The Department spoke to a person at the Moti Mahal restaurant on a site visit on the 23 March 2011. That person claimed to be the owner of the restaurant and did not know the applicant.
On the 24 March 2011 the Department interviewed the previous owner Mr Rashid Mondal who attended the department’s office. At that interview Mr Mondal said he sold the business in February 2010 and had full involvement as the restaurant manager up to that time. He kept no records for his volunteer workers. When shown photos of a number of visa applicants, including the applicant, he was able to recognise some applicants and verified a number of work references. However, he was not able to recognise the applicant.
[31] CB259, [13], [14]
The Tribunal concluded the applicant does not meet PIC 4020(1). The Tribunal relied on a number of matters. First, the Tribunal was satisfied that the Department conducted a site visit of the Restaurant on 23 March 2011 and spoke to the Apparent Owner;[32] Mr Mondal presented himself to the Department on 24 March 2011;[33] and Mr Mondal could not, at the interview on 24 March 2011, identify the applicant.[34] Second, the applicant did not provide any evidence from the supervisor who, the applicant claimed, supervised him; or from the cook who, the applicant also claimed, supervised him.[35]
[32] CB262, [37]
[33] CB262, [37]
[34] CB262, [40]
[35] CB261, [31]
Third, the Tribunal did not accept the evidence of Mr Mondal as recorded in the documents made or purportedly made by Mr Mondal. The Tribunal expressed this finding in a number of ways: the Tribunal found that Mr Mondal’s evidence “as presented to the Tribunal by the documents supplied by the applicant is inconsistent and unpersuasive”;[36] the Tribunal did not accept Mr Mondal’s evidence as accurate;[37] the Tribunal was not satisfied Mr Mondal’s evidence could be relied on as evidence that the applicant completed the required hours of work experience at the Restaurant;[38] the Tribunal did not accept Mr Mondal is a reliable and accurate source of information in relation to the applicant’s work experience;[39] Mr Mondal’s evidence is misleading;[40] and the Tribunal did not accept Mr Mondal “had sufficient knowledge of the applicant to properly verify in writing work experience which was undertaken and which the Trades Recognition Australia assessment relied upon”.
[36] CB262, [41]
[37] CB262, [41]
[38] CB262, [38]
[39] CB262, [44]
[40] CB262, [44]
The Tribunal based these findings on the following:
(a)At his interview with the Department on 24 March 2011 “as set out in [the] decision record”, Mr Mondal said that he sold the Restaurant in February 2010 and had full involvement as the Restaurant manager up to that time; he stated he kept no records of his volunteer workers; and there were seven people working in the kitchen.[41] On the other hand:
(i)at the hearing before the Tribunal, the applicant stated Mr Mondal had supervisors and managers at the Restaurant as he was busy; and that the chef kept records of volunteers, and there were four to five people in the kitchen;[42] and
(ii)in the purported 6 September 2016 Mondal declaration Mr Mondal stated that he still owned the business; that he had owned it since 2001; and that in 2014 he relocated the business to a new address.[43]
(b)In the purported 5 September 2015 Mondal Letter, and in the purported 6 September 2016 Mondal declaration, Mr Mondal said he owned and ran the Restaurant in 2001, yet the legal documents the applicant provided to the Tribunal indicate Mr Mondal purchased the Restaurant in 2005.[44]
(c)In the purported 6 September 2016 Mondal declaration Mr Mondal claimed he identified the applicant during his interview with the Department.[45] On the other hand, “from the evidence before it” (which I infer is a reference to the OLSV Document, the letters dated 11 August 2015 and 11 August 2016 the Department sent to the applicant, and the delegate’s decision record), during the interview with the Department on 24 March 2011 Mr Mondal did not identify the applicant.[46] The Tribunal relied on the Department’s records because the Tribunal was “not convinced that the Department had any benefit to gain from incorrectly reporting that he [that is, Mr Mondal] could not identify the applicant”.[47] The Tribunal preferred the evidence of the Department that Mr Mondal did not, when the Department interviewed him in March 2011, identify the applicant.[48]
(d)If Mr Mondal was the owner of the Restaurant from 2008 to 2009, and he was very busy, Mr Mondal’s evidence was that he was involved in the management and knew the applicant well. If that were the case, there was no explanation why Mr Mondal did not identify the applicant as one of the employees when the Department interviewed him.
(e)If the Tribunal were to accept Mr Mondal was involved in the running and management of the Restaurant on a daily level, Mr Mondal should have had a clear recollection of the applicant. Mr Mondal’s response that he is very busy is not sufficient to explain why Mr Mondal could not at the interview (of 24 March 2011) identify the applicant “or why his various statements were so inconsistent”.[49]
(f)Mr Mondal was “disingenuous” in claiming (in the purported 6 September 2016 Mondal declaration) that no one from the Restaurant spoke to the Department or that the Department did not visit the Restaurant. The Tribunal was satisfied the Department did conduct a site visit on 23 March 2011 and spoke to someone who identified himself or herself as an owner.[50]
[41] CB261, [32]
[42] CB261, [32]
[43] CB261, [35]
[44] CB262, [39]; CB261, [33], [34]
[45] CB261, [36]; CB262, [40]
[46] CB262, [37], [40]
[47] CB262, [40]
[48] CB262, [40]
[49] CB262, [43]
[50] CB262, [37]
The fourth matter on which the Tribunal relied for concluding the applicant did not meet PIC 4020(1) is its assessment of the applicant’s evidence.[51]
The applicant’s evidence was equally vague in relation to any other evidence he may have had. He was unable to clearly identify the year when he worked as a cook. He named some restaurants however he was not able to provide any references, payslips or detail to how long he worked there.
[51] CB262, [42]
The Tribunal does not explicitly state in what way it considered the applicant did not meet PIC 4020(1). It is reasonably clear, however, the Tribunal found the applicant did not meet PIC 4020(1) because:
(a)the applicant provided information to TRA, a relevant assessing authority;
(b)the information consisted of a number of representations contained in the purported 30 November 2009 Mondal letter about the nature and extent of the work the applicant performed at the Restaurant, and in particular a representation to the effect the applicant had worked at the Restaurant for 920 hours from 1 October 2008 to 13 November 2009;
(c)there was probative evidence that the information referred to in (b) was false in a material particular, that material particular being that the applicant did not in fact work the 920 hours the applicant claimed he worked in the Restaurant;
(d)the probative evidence consisted of the OLSV Document, and the letters dated 11 August 2015 and 11 August 2016 the Department sent to the applicant, on the basis of which the Tribunal found that Mr Mondal was interviewed by officers of the Department on 24 March 2011, he was shown photographs that included a photograph of the applicant, but Mr Mondal could not identify the applicant; and
(e)the Tribunal did not accept that the evidence on which the applicant relied for his claim to have worked 920 hours at the Restaurant rendered the evidence in (d) as having no probative value.
Having concluded the applicant does not meet PIC 4020(1), the Tribunal considered whether it should waive compliance with it. For reasons it is not necessary to set out, the Tribunal was not satisfied compliance with PIC 4020(1) should be waived.
Ground of application
The applicants rely on the following ground of application:
The Second Respondent (Tribunal) made a jurisdictional error in finding that the Applicant had provided misleading information contrary to cl 886.225 in Sch 2 when read with Public Interest Criterion (PIC) 4020 in Sch 4 to the Migration Regulations 1994 (Cth).
a. The Tribunal considered at paragraph 45 of its decision that the Applicants did not satisfy PIC 4020 because it concluded at paragraph 44 of its decision the documentary evidence of the Applicants’ witness was “misleading” as the witness did not have “sufficient knowledge” of the First Applicant “to properly verify in writing” the First Applicant’s work experience.
b. The Tribunal made the finding described in the preceding paragraph because at paragraphs 41 and 44 of its decision it viewed the evidence of the witness as not reliable or accurate.
c. The Tribunal reached this view by reference to three matters:
i. at paragraph 37 of its decision, the witness had made the disingenuous claim that no-one from his restaurant had spoken to the Department, or was visited by the Department on 24 March 2011;
ii. at paragraph 40 of its decision, contrary to the claims of the witness, the Tribunal was satisfied that he did not identify the First Applicant from a photograph on 24 March 2011 and had provided no explanation for his failure to do so; and
iii. at paragraphs 32 and 40 of its decision, the witness had been inconsistent as to when he owned the restaurant and “may have been the owner of the restaurant from 2008 to 2009”
d. The Tribunal’s reliance on one or more of these matters was erroneous and its ultimate decision vitiated due to legal unreasonableness in findings of fact, overlooking evidence and want of proper consideration.
e. The Tribunal in the course of considering one or more of these three matters conflated its function of evaluating and making findings with respect to the evidence as a whole with its function of identifying misleading conduct for the purposes of PIC 4020. In addition, the Tribunal failed to apply the words “in a material particular” in PIC 4020.
Parties’ submissions
In their written submissions the applicants submit that the basis for the Tribunal’s ultimate conclusion that the applicants did not satisfy PIC 4020 was its view that Mr Mondal’s evidence was “inconsistent and unpersuasive”, and was not accurate; and that Mr Mondal was not a “reliable and accurate source of information in regards to the applicant’s work experience”.[52] The applicants submit the Tribunal formed this view by virtue of three matters:[53] it found disingenuous Mr Mondal’s claim that no one from the Restaurant had spoken to the Department, or was visited by the Department; Mr Mondal had claimed he identified the applicant, whereas the Tribunal was satisfied he did not do so; and Mr Mondal had been inconsistent as to when he owned the Restaurant.
[52] Submissions for the Applicant[s], [17]
[53] Submissions for the Applicant[s], [18]
The applicants submit that in relation to all of the these three matters, the Tribunal’s reasons suffer from a failure to identify with precision the information said to be misleading; the Tribunal failed to engage with “intention” under Trivedi v Minister for Immigration and Border Protection;[54] and the Tribunal’s conclusion that Mr Mondal did not have “sufficient knowledge” of the applicant does not sit readily with a finding that Mr Mondal intended to mislead. The applicants then set out more detailed submissions in relation to each of the three matters on which the Tribunal is said to have relied for not accepting Mr Mondal’s evidence:
(a)As to the first matter on which the Tribunal relied, the applicants submit the Tribunal’s finding that it was disingenuous for Mr Mondal to claim that no one from the Restaurant had spoken to the Department, or was visited by the Department on 24 March 2011, did not reflect Mr Mondal’s claims. The applicants submit Mr Mondal claimed no one had visited the Restaurant and spoke to people there on 24 March 2011, because he had gone to the Department on that day; and that Mr Mondal did not know who the purported owner was to whom the Department had spoken on 23 March 2011, and that his staff members and cooks had not divulged to Mr Mondal that they had spoken to anyone from the Department. In those circumstances, this amounted to the Tribunal’s “overlooking the content of Mr Mondal’s evidence, failing properly to consider it and making an unreasonable finding of fact”.[55]
(b)As to the second matter, the applicants submit it is incorrect that Mr Mondal gave no explanation for his failure to identify the applicant’s photo. Mr Mondal stated he has many staff members and multiple shops; and that some people do not look like they do in photographs as they do in real life. Further, the Tribunal found Mr Mondal’s evidence to be misleading only because it preferred the evidence of the Department. That, however, did not justify a finding that the evidence the Tribunal did not accept was misleading, particularly where, as the applicants submit is the case, the evidence the Tribunal did not accept was based on the best of Mr Mondal’s recollection. In those circumstances, the Tribunal “overlooked the content of Mr Mondal’s evidence, failed properly to consider it and made an unreasonable finding of fact”. Further, the Tribunal “conflated rejection of evidence in its fact finding function with identifying misleading conduct under PIC 4020, which is illogical and contrary to the statutory provision”.[56]
(c)As to the third matter, the applicants submit that the Tribunal ultimately found that Mr Mondal “may have been the owner of the restaurant from 2008 to 2009”, which means any inconsistency as to date outside 2008 and 2009 is not relevant so that, even if Mr Mondal had been misleading, he would not have been so “in a material particular”.[57] Further, the Tribunal had been illogical and misapplied PIC 4020 by eliding the distinction between evaluating evidence and identifying misleading conduct;[58] and that identifying two items of evidence as inconsistent does not necessarily mean that one or both is or are false or misleading.[59]
[54] Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
[55] Submissions for the Applicant[s], [33]
[56] Submissions for the Applicant[s], [38]
[57] Submissions for the Applicant[s], [40]
[58] Submissions for the Applicant[s], [41]
[59] Submissions for the Applicant[s], [42]
The applicants, by their counsel, repeated the substance of these submissions in oral address.
In his written submissions the Minister submits that, on “a holistic review of the Tribunal’s decision”, the Tribunal approached its task in an orthodox manner, taking into account the available evidence. In particular, the Tribunal examined the discrepancies and inconsistencies in Mr Mondal’s evidence.[60] The Minister further submitted that, in truth, the applicants’ case is a challenge to the merits of the Tribunal’s findings of fact; and the applicants cannot show that any of the facts the Tribunal made were irrational or otherwise not reasonably open to it.[61] The Minister then addressed each of the Tribunal’s findings “impugned” by the applicants.
[60] First Respondent’s Outline of Submissions, [22]
[61] First Respondent’s Outline of Submissions, [23]
Determination
The ground on which the applicants rely is directed to the Tribunal’s findings in relation to statements contained in documents that had purportedly been made by Mr Mondal; and the applicants’ submissions appear to be premised on the assumption that the information the Tribunal considered to be misleading for the purpose of determining whether the applicant satisfied PIC 4020(1) was information contained in a number of documents that had been purportedly made by Mr Mondal. That, however, does not accurately identify the information in relation to which the Tribunal was required to be satisfied there was no evidence that it was false or misleading in a material particular and, therefore, whether the applicant had satisfied PIC 4020(1).
The information that was directly relevant to the Tribunal determining whether the applicant met PIC 4020(1) was the information the applicant purportedly provided to TRA for an assessment that the applicant performed at least 900 hours of relevant work experience at the Restaurant; and that information (Relevant Information) was contained in the purported 30 November 2009 Mondal letter. The relevant question, therefore, the Tribunal was required to consider when determining whether the applicant met PIC 4020(1) is whether there was “no evidence” that the Relevant Information was false or misleading in a material particular.
The applicants do not submit there was “no evidence” that the Relevant Information was false or misleading in a material particular; nor do the applicants submit that the Tribunal failed to find there was no such evidence, or that it was not reasonably open to find that there was no such evidence. That is not surprising, because there was evidence which, if accepted, would have been sufficiently probative to lead to the conclusion that the Relevant Information was false or misleading in a material particular. That evidence consists of the statements contained in the OLSV Document, and the letters dated 11 August 2015 and 11 August 2016 the Department sent to the applicant. The Tribunal expressly made a finding in relation to one of the statements contained in those documents, namely, that Mr Mondal, at his interview with the Departmental officers on 24 March 2011, failed to identify the applicant as a person who had worked at the Restaurant. It is open to infer, and I find, that the Tribunal accepted as true the entire account recorded in those documents. In particular, it is open to infer, and I find, that the Tribunal accepted that on 23 March 2011 Departmental officers attended the Restaurant and had a conversation with the Apparent Owner who conveyed to the officers the information recorded in the OLSV Document, and that they interviewed Mr Mondal at the Department’s office on 24 March 2011, and Mr Mondal failed to identify the applicant as a person who had worked at the Restaurant.
That, of course, did not render irrelevant the statements contained in the purported 5 September 2015 Mondal letter and the purported 6 September 2016 Mondal declaration; but it is important to be clear about how such statements were potentially relevant. They were relevant to the Tribunal’s assessment of whether the statements contained in the OLSV Document, and the letters dated 11 August 2015 and 11 August 2016 the Department sent to the applicant were probative of the facts they each stated. The applicants, however, have not submitted that, had the Tribunal not made the illogical or unreasonable findings the applicants contend the Tribunal made in relation to Mr Mondal’s evidence, there would have been some realistic possibility that the Tribunal could have found that the statements made in the OLSV Document, and the letters dated 11 August 2015 and 11 August 2016 the Department sent to the applicant, were not probative; that is, they did not constitute any evidence that information the applicant had provided was false or misleading. Stated in the language of materiality,[62] the applicants have not addressed the question whether the Tribunal’s having irrationally or unreasonably found that: (a) the evidence Mr Mondal gave was disingenuous; (b) Mr Mondal gave no explanation for his failure to identify the applicant; and (c) Mr Mondal gave inconsistent evidence about the times he owned the Restaurant, deprived the applicants of the possibility of the Tribunal finding that the OLSV Document, and the letters dated 11 August 2015 and 11 August 2016 the Department sent to the applicant did not constitute probative evidence that the Relevant Information was false or misleading in a material particular and, therefore, deprived the applicants of the possibility of a different outcome.
[62] Nathanson v Minister for Home Affairs [2022] HCA 26, at [1]
For these reasons alone, the applicants fail on the ground on which they rely. I will consider, however, the applicants’ submissions in relation to the three particular findings the applicants submit the Tribunal made unreasonably or irrationally.
Disingenuous finding
The disingenuous finding relates to what the Tribunal found were Mr Mondal’s claims that no one from the Restaurant spoke to the Department and that no person from the Department visited the Restaurant. It may be taken that the Tribunal intended to refer to the claims Mr Mondal made about this in both the purported 5 September 2015 Mondal letter, and in the purported 6 September 2016 Mondal declaration.
(a)In the purported 5 September 2015 Mondal letter, Mr Mondal claimed that neither he nor “my head chef . . . and other staff have received any call or visit from immigration officer regarding” the applicant’s work experience. That claim was made in response to the Department’s letter dated 11 August 2015 in which it was (incorrectly) said that on 24 March 2011 (rather than on 23 March 2011) Department staff conducted an investigation of the Restaurant by speaking to the Apparent Owner of the Restaurant. Mr Mondal’s response, however, could not reasonably be read as asserting anything other than a claim that on no occasion, including on 23 or 24 March 2011, did anyone from the Department contact Mr Mondal or his staff about the applicant’s work experience. Thus, the response could on no account be considered to be an accurate response to the Department’s letter dated 11 August 2015, assuming the OLSV Document correctly recorded the Departmental officer’s activities on 23 and 24 March 2011.
(b)In the purported 6 September 2016 Mondal declaration Mr Mondal stated that his staff members and cooks “have divulged” they had not received a phone call from the Department, and that Mr Mondal did not receive a call or visit from the Department on 24 March 2011, and that is because Mr Mondal visited the Department on 24 March 2011. The purported 6 September 2016 Mondal declaration was made in response to the Department’s letter dated 11 August 2016, where the Department stated that on 23 March 2011 Departmental officers talked to the Apparent Owner of the Restaurant, and on 24 March 2011 the “previous owner”, Mr Mondal, attended the Department’s office. The Department’s letter dated 11 August 2016, however, did not claim Mr Mondal received a call or visit from the Department on 24 March 2011; and the purported 6 September 2016 Mondal declaration ignores the statement the Department made in its letter dated 11 August 2016 that Departmental officers spoke with the Apparent Owner of the Restaurant on 23 March 2011.
I therefore do not accept the applicants’ submission that Mr Mondal did not claim that no one at the Restaurant had spoken to the Department, or the Tribunal overlooked the content of the various claims Mr Mondal made in the purported 5 September 2015 Mondal letter, and in the purported 6 September 2016 Mondal declaration about the Department’s investigation of the applicant’s work experience with the Restaurant, or that it failed to consider or properly consider those claims, or that the Tribunal made any unreasonable finding about those claims; and I do not accept the claim Mr Mondal made in the purported 6 September 2016 Mondal declaration that he attended the Department’s office on 24 March 2011 “is completely accurate”, given Mr Mondal ignored what the Department’s 11 August 2016 letter stated occurred on 23 March 2011.
Further, it was reasonably open to the Tribunal to find that the statements made in the purported 5 September 2015 Mondal letter, and in the purported 6 September 2016 Mondal declaration, were disingenuous, not only because the Tribunal accepted as true the statement recorded in the OLSV Document, but also because of the nature of the claims Mr Mondal made in the purported 5 September 2015 Mondal letter, and in the purported 6 September 2016 Mondal declaration about the Department’s investigations in relation to the work experience of the applicant with the Restaurant. The claims ranged from a denial that the Departmental officers had any contact with Mr Mondal or other persons associated with the Restaurant, to Mr Mondal’s acknowledging he had spoken with the Department on 24 March 2011 but ignoring the Department’s communications with the Apparent Owner on 23 March 2011.
This part of the applicants’ claims, therefore, fails.
Finding that no explanation given for not identifying applicant
The applicants make two submissions. The first is the Tribunal was “simply incorrect” in finding Mr Mondal had given no explanation for not identifying the applicant. The applicants submit Mr Mondal did give an explanation.
Mr Mondal’s explanation is given in the purported 6 September 2016 Mondal declaration where Mr Mondal claims he did identify the applicant. That suggests that the Tribunal’s finding about the absence of explanation is directed to some other item of evidence; and that suggestion is confirmed by the passage in which the finding is made; it is made in paragraph 40 of the Tribunal’s reasons where the Tribunal accepts the Department’s account of what occurred on 24 March 2011. The Tribunal there finds there is no explanation why, as recorded by the OLSV Document, Mr Mondal was not able to identify the applicant, given Mr Mondal had claimed he was involved in the management of the Restaurant, and that he knew the applicant.
In any event, even though Mr Mondal gave the explanation in the purported 6 September 2016 Mondal declaration where Mr Mondal nevertheless claimed he did identify the applicant, the Tribunal considered that explanation for Mr Mondal’s not having recognised the applicant on 24 March 2011, as recorded on the OLSV Document. The Tribunal found that if the Tribunal were to accept that Mr Mondal was involved in the running and management of the Restaurant on a daily level, Mr Mondal ought to have had a clear recollection of the applicant. In other words, the Tribunal did not accept as an explanation for Mr Mondal’s not having recognised the applicant Mr Mondal’s being busy, given Mr Mondal’s claims that he was engaged in the management of the Restaurant and he knew the applicant.
The second submission the applicants make is that the Tribunal treated as misleading Mr Mondal’s claims to have recognised the applicant only because it had accepted evidence that was inconsistent with it. The Tribunal did make a finding that Mr Mondal’s evidence was misleading. But that is a finding that was made in relation to Mr Mondal’s evidence viewed as a whole. The Tribunal did not so find only because it preferred evidence on one issue that was inconsistent to Mr Mondal’s evidence on that issue. The Tribunal relied on the matters I identify in paragraph 32 of these reasons. In any event, although not conventional, the term “misleading” may accurately be used to characterise evidence the Tribunal did not accept. To mislead simply means to lead one into error; [63] and evidence the Tribunal did not accept as accurate would be misleading because the Tribunal relying on unreliable evidence would lead it into error.
[63] Campbell v Backoffice Investments Pty Ltd [2009] HCA 25, at [25]
This part of the applicants’ claims, therefore, also fails.
Findings of inconsistent dates for owning Restaurant
There are a number of points that may be made about this part of the applicants’ case. First, the Tribunal did not find that Mr Mondal “may have been the owner of the restaurant from 2008 to 2009”. The Tribunal simply assumed that Mr Mondal may have been the owner from 2008 to 2009 to explore why Mr Mondal, on the Department’s account, was unable to recognise the applicant when he was interviewed by the Departmental officers on 24 March 2011. The Tribunal reasoned that if, as Mr Mondal claimed, he was actively managing the Restaurant, and he knew the applicant, he ought to have recognised, but he did not recognise, the applicant when the Departmental officers interviewed Mr Mondal on 24 March 2011. This reasoning did not commit the Tribunal to any finding that Mr Mondal was managing the Restaurant in 2008 and 2009. It simply meant that the Tribunal could with a greater confidence find that the applicant did not in fact work at the Restaurant as claimed in the purported 30 November 2009 Mondal letter, and that the Relevant Information, therefore, was false and misleading in a material particular.
Second, PIC 4020(1) did not require the Tribunal to find that inconsistent statements Mr Mondal may have made about when he owned the Restaurant had to be false or misleading in a material particular. As I have already noted, the information PIC 4020(1) requires be false or misleading is information provided in relation to an application for the grant of a visa. In the case before me, that information is what I have described as the “Relevant Information”, being the information about the nature and extent of the work the applicant performed in the Restaurant as described in the purported 30 November 2009 Mondal letter. The question the Tribunal was required to determine was whether there was “no evidence” that the Relevant Information was false or misleading in a material particular. It was reasonably open to the Tribunal to find, and the applicants have not submitted otherwise, that the information contained in the OLSV Document recording what the Apparent Owner told Departmental officers during their visit to the restaurant on 23 March 2011, and what Mr Mondal told the Departmental officers at his meeting at the Department’s office on 24 March 2011, constituted probative evidence that the Relevant Information was false or misleading in a material particular; and, for that reason, the Tribunal could not be satisfied there was no evidence the applicant had provided false or misleading information in relation to his application for the grant of a Skilled visa.
Third, whether Mr Mondal made inconsistent statements about when he owned the Restaurant was potentially relevant to whether the information contained in the OLSV Document constituted “probative evidence”; and it was potentially relevant either directly, to the extent Mr Mondal stated he was not the owner of the Restaurant at the time the applicant had claimed to TRA that he had worked there, or indirectly by showing that the extent of Mr Mondal’s inconsistent statements justify a finding that Mr Mondal is not a witness of credit. It is the case that the Tribunal did rely on inconsistent statements Mr Mondal made about the time he owned the Restaurant. But it relied on those inconsistent statements, together with other inconsistencies the Tribunal identify, to support the finding that Mr Mondal’s evidence in general is not reliable. It was reasonably open to the Tribunal to so find.
This part of the applicants’ claims, therefore, also fails.
disposition and costs
The applicants have not succeeded on the ground of application on which they rely. I will therefore order that the application be dismissed.
The parties agree that costs should follow the event, and the costs should be set in the amount provided for by Part 2 of Schedule 2 to the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth). That amount is $7,853. I therefore will also order that the applicants pay the Minister’s costs set in the amount of $7,853.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 14 September 2022
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