Aulakh & Ors v Minister for Immigration & Anor
[2017] FCCA 544
•23 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AULAKH & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 544 |
| Catchwords: LEGAL UNREASONABLENESS – Whether Tribunal’s decision that visa applicant did not work as a hairdresser maintainable on the evidence – review of authorities – constitutional writs ordered. |
| Legislation: Migration Act 1958 (Cth), ss.348, 357A Migration Regulations 1994 (Cth), cl.886.225 sch.2 |
| Cases cited: AKD16 v Minister for Immigration & Anor [2016] FCCA 3026 |
| First Applicant: | MANINDER KAUR AULAKH |
| Second Applicant: | SATINDER SINGH |
| Third Applicant: | DIYA JAURA |
| Fourth Applicant: | GURWYN SINGH JAURA |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1572 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 3 February 2017 |
| Date of Last Submission: | 24 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 23 March 2017 |
REPRESENTATION
| Solicitors for the Applicants: | My Visa Lawyers Pty Ltd |
| Counsel for the Applicants: | Mr A J Byrne |
| Solicitors for the First Respondent: | Mr A Cunynghame of Sparke Helmore |
ORDERS
An order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 30 June 2014.
An order in the nature of a writ of mandamus issue directing the
second respondent to hear and determine the application for review according to law.
The first respondent pay the applicants’ costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1572 of 2014
| MANINDER KAUR AULAKH |
First Applicant
| SATINDER SINGH |
Second Applicant
| DIYA JAURA |
Third Applicant
| GURWYN SINGH JAURA |
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed 1 August 2014, the first applicant sought judicial review of the decision made on 30 June 2014 by the
Migration Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”)[1] pursuant to which the Tribunal affirmed a decision of the Minister’s delegate made 23 January 2014[2] not to grant the
first applicant a Skilled (Residence) (Class VB) visa (“the visa”).
[1] Court Book filed 20 November 2014 at pp.420-433.
[2] Court Book filed 20 November 2014 at pp.212-219.
The Tribunal considered that the first applicant did not satisfy the requirements of cl.886.225 of Sch.2 of the Migration
Regulations 1994 (Cth) (“the regulations”) because she did not meet the requirements of Public Interest Criterion 4020 (“PIC 4020”).The first applicant contended that the Tribunal’s decision was affected by jurisdictional error in three ways –
a)first, the first applicant said the Tribunal’s conclusion that the first applicant was not employed as a hairdresser at New Style Beauty Salon (“New Style”) was illogical and irrational;
b)second, the first applicant said the same conclusion by the Tribunal was the result of the Tribunal failing to ask appropriate questions, ignoring relevant material and relying on irrelevant material; and
c)third, the first applicant said the Tribunal failed to comply were ss.348 and 357A of the Migration Act 1958 (Cth) (“the Act”) in that the Tribunal failed to fully and fairly review the delegate’s decision.[3]
[3] Further amended application filed 10 February 2017.
Synopsis
For the reasons that follow, in my judgment the Tribunal fell into jurisdictional error for which constitutional writs must issue.
Relevant factual setting
By leave, on 10 February 2017 and after the two days over which I heard this case, the first applicant filed a further amended application that she pressed when seeking final relief in this proceeding.
In November 2006, while living in India, the first applicant applied for a Skilled – Independent (Migrant) (Class BN) subclass 136 visa.
In October 2007 that visa was refused.
Subsequently, the first applicant entered Australia on a student visa and in 2010 applied for a subclass 886 visa and supplied the Department of Immigration and Citizenship (as it was then) (“the Department”) with various documents including customer references, a work reference and a letter from Trades Recognition Australia Ltd (“TRA”).
On 7 May 2007 departmental officers made a site visit to New Style following which they prepared a site visit report.
In late 2013, the Department wrote to the first applicant[4] identifying a variety of issues on which the Department sought her comment following the site visit in May 2007, that is to say a significant number of years earlier. The first applicant replied on 19 December 2013.[5]
[4] Court Book filed 20 November 2014 at pp.162-167.
[5] Court Book filed 20 November 2014 at pp.183-206.
On 23 January 2014 the Minister’s delegate refused the first applicant’s visa application.
On 30 January 2014, the first applicant applied to the Tribunal for a merits review of the delegate’s decision.[6] The Tribunal conducted a hearing on
21 May 2014 and handed down its decision on 30 June 2014.[6] Court Book filed 20 November 2014 at pp.220-234.
Ground 1
Ground 1 of the further amended application filed 10 February 2017 had three components to it, as set out in the particulars –
a)as particular (a) the first applicant asserted that the Tribunal’s finding that the first applicant was not employed as a hairdresser was in conflict with the evidence obtained by departmental officers who were satisfied that the first applicant undertook duties at New Style including cutting, styling and straightening of hair, being duties ordinarily associated with those of a hairdresser;
b)as particular (b) the first applicant asserted that the evidence established that the first applicant was employed by New Style; and
c)as particular (c) the first applicant asserted that she did not give TRA false or misleading information nor did she give a bogus document to the Minister.[7]
[7] Further amended application filed 10 February 2017 at p.3.
Leaving aside the details of the particulars for a moment, the real gravamen of ground 1 was the first applicant’s complaint that it was illogical and irrational for the Tribunal to have concluded that the
first applicant was not employed as a hairdresser at New Style.
I agree. In my judgment it was illogical and irrational for the Tribunal to have so concluded. Let me explain why.
In support of its conclusion that the first applicant did not work at
New Style, the Tribunal catalogued a number of findings. Among them were –
a)the Tribunal’s finding at paragraph 22[8] of its reasons that three references given in favour of the first applicant in 2006 were not authentic;
[8] Court Book filed 20 November 2014 at p.425.
b)the Tribunal’s finding at paragraph 23[9] of its reasons that when listing her employment history over four years prior to her 2010 visa application, the first applicant failed to record her employment at New Style; and
[9] Court Book filed 20 November 2014 at pp.425-426.
c)
the Tribunal’s findings between paragraphs 26 and 37[10] of its reasons that the first applicant gave inconsistent evidence to the evidence of the husband and to the evidence of the owner of
[10] Court Book filed 20 November 2014 at pp.426-428.
New Style (Ms Bajaj) on such issues as –
i)the first applicant’s hours of work;
ii)the duration of lunch breaks;
iii)the date of the first applicant’s departure from New Style;
iv)the amount of time the first applicant spent providing hairdressing services at New Style;
v)the number of fellow workers at New Style;
vi)whether New Style was a unisex salon; and
vii)whether New Style kept an attendance register.
For a better understanding of the first applicant’s contentions about the legitimacy of the Tribunal’s findings in relation to the first applicant working at New Style, I carefully examined the transcript of the evidence before the Tribunal. Mr Byrne of counsel for the
first applicant submitted that the questions put to the first applicant by the Tribunal were “ambiguous, open-ended, double barrelled or were otherwise confusing”.[11] Mr Byrne also submitted that the
first applicant’s evidence was in fact consistent with the evidence on the same matter of the first applicant’s husband as well as the evidence of the business owner Ms Bajaj.
[11] Applicant’s Outline of Submissions dated 18 October 2016 at p.6.
On both issues I agree.
The first applicant told the Tribunal she normally worked between
10.00 a.m. and 5.00 p.m. from Monday to Friday. Her husband said she worked full-time and sometimes late into the evening, depending on the volume of work. Ms Bajaj said the salon operated from Monday to Saturday from 10.00 a.m. until 7.00 p.m. and that staff work mainly from 10.00 a.m. until 5.00 p.m. but possibly longer depending on the demands of business. So far as her specific tasks were concerned, the first applicant told the Tribunal she cut, coloured, styled, permed and re-bonded hair and she trained junior staff. Ms Bajaj said the
first applicant worked mainly as a hairdresser and that the first applicant was the senior employee who explained things to junior employees.
Ms Bajaj said New Style had beauty rooms and hairdressing rooms as well as facial rooms.
The Tribunal asked the first applicant about the number of staff members New Style employed in 2007. Bearing in mind the Tribunal’s hearing was conducted seven years later in 2014, the first applicant mentioned three or four hairdressers and two beauticians, although she said she did not really remember. Ms Bajaj said the number was around four to five but staff was constantly changing.
The Tribunal asked whether those other hairdressers were paid a salary, in response to which the first applicant said she never asked them.
Ms Bajaj said the staff were paid on a commission.
The first applicant said New Style kept a diary and a pad of paper but not a formal appointment book as the salon had walk-in clients.
Ms Bajaj said the Tribunal kept an appointment book that the business used for special occasions but that book was not used for every business day. The Tribunal asked how many clients the salon had each day. It also asked the first applicant to describe the physical layout of the salon, which she did. The first applicant said she left this salon because she married and travelled to Australia.
The first applicant was questioned closely about several references given in her favour. She told the Tribunal that Ms Bajaj told the first applicant what to write in the reference letter in Punjabi and the first applicant translated the words used by Ms Bajaj into English. The first applicant said Ms Bajaj signed the reference letter in the presence of the
first applicant without making changes to it. Ms Bajaj told the Tribunal she prepared the references in English and after the letters were typed, she signed them on the basis that the references were accurate.After lengthy questioning of Ms Bajaj in an open-question manner with questions prefaced by who, why, what, where and when, midway through its questioning the Tribunal adopted a different style of questioning by phrasing the question “you are reported to have said” a particular thing. The Tribunal member did not explain what she was embarking on when undertaking that style of questioning. If the Tribunal had an eye to procedural fairness, it should have, but failed to inform Ms Bajaj that the Tribunal wanted to pursue with Ms Bajaj a number of matters that had emerged from the evidence she had just given, which evidence stood at odds with information Ms Bajaj had earlier given to officers from the Australian High Commission who conducted an interview with her on 7 May 2007. Rather than doing that, the Tribunal member asked whether Ms Bajaj recalled a visit from two officers from the Australian High Commission in India on 7 May 2007, to which she answered affirmatively. Then the Tribunal asked whether Ms Bajaj recalled the conversation she had with them to which
Ms Bajaj said it was “so many years now”.[12] In other words, Ms Bajaj did not affirmatively say she recalled any such conversation, let alone not recalling the contents of any such conversation nor even whether a record was taken of that conversation and if so, whether she attested to the accuracy of such a record.
[12] Court Book filed 20 November 2014 at p.399.
I agree with Mr Byrne’s characterisation of that style of questioning as confusing. It was all the more confusing when Ms Bajaj was giving evidence through an interpreter. Suffice it to say the Tribunal did not ask Ms Bajaj whether she understood what was being done by that style of questioning. At no stage did the Tribunal informed Ms Bajaj the precise terms of the information she had allegedly previously given to the two Australian High Commission officers.
At all events, Ms Bajaj said New Style’s appointment book was used only on special occasions, not on everyday business.
Ms Bajaj appeared to take exception to a proposition put to her (using the phrase “you are reported to have said”)[13] that more beauty work was performed at the salon than was hairdressing. Ms Bajaj answered by stating that she had not given her previous answer in that way.
Ms Bajaj went on to dispute with the Tribunal a response allegedly earlier given to the effect that all New Style hairdressers performed more beauty work and hairdressing tasks.
[13] Court Book filed 20 November 2014 at p.400.
Ms Bajaj emphatically denied having previously answered the question put to her on some other occasion that all her staff worked four hours a day. She said “No. It is totally wrong”.[14] She then added “how the clients were getting their work done if the employees are working only for four hours?”[15] The Tribunal member then said it was possible if the workers all worked at different times. The applicant’s solicitor protested about that question from the Tribunal in view of the applicant’s denial of the proposition as put. The Tribunal member then moved on to a different topic.
[14] Ibid.
[15] Ibid.
The Tribunal then focused on the references. It will be recalled that the Tribunal was particularly critical of the applicant’s evidence, in large measure on account of the evidence concerning those references. After commencing the question with (what by then had become the norm) “You are also reported to have said”, the Tribunal member put to
Ms Bajaj that the reference letters were “furnished by the applicants and you (Ms Bajaj) only signed the letters”.[16] In answer, Ms Bajaj said she furnished the letters and provided them to the applicants after preparing the contents. The Tribunal member persisted, asking “You are also reported to have said that you were not fully aware of the contents of the work reference letters”[17] to which Ms Bajaj, in respect of that question chose not to use the interpreter, said “No. That’s wrong”.[18] Ms Bajaj said again that she prepared the reference letter.
Ms Bajaj did not agree with the proposition that the applicant prepared the letter in Punjabi. The precise question was as follows –
Did she prepare it in Punjabi and give it to you and then you did it in English or did you prepare it in Punjabi and give it to her and see – have translated into English?[19]
[16] Court Book filed 20 November 2014 at p.401.
[17] Ibid.
[18] Ibid.
[19] Ibid.
Ms Bajaj said she prepared it, read it carefully then signed it.
Aside from which version was true, if indeed it mattered at all, the question quoted immediately above was expressed very badly. It was a compound question of the less desirable category. I counted at least six propositions in that seemingly simple question. Ms Bajaj could not have answered it without explanation, either affirmatively or negatively, because whichever answer may have been given could not have assisted having regard to the unacceptably high number of concepts embedded in the question itself.
As it happened, Ms Bajaj answered, with an elaboration thereby making her answer meaningful and thereby overcoming the deficiencies in the question. That said, Ms Bajaj was firm in her evidence that she prepared the letters of reference whereas the applicant said Ms Bajaj wrote the letters in Punjabi or told the applicant what to say in the letter and the applicant translated it.
The Tribunal then called the applicant back to give further evidence. The Tribunal member said that several inconsistencies in the evidence before the Tribunal could have led the Tribunal to conclude that the reference letters contained false or misleading information. Specifically, the Tribunal member raised the following –
a)Ms Bajaj said in a report that she had four staff, all of whom worked four hours, whereas she told the Tribunal something different;
b)
the first applicant previously told Australian High Commission officers that 65% of the work was hairdressing and 35% of the work was beauty work, whereas in her evidence to the Tribunal the applicant said the ratio was 70% hairdressing and 30% beauty work yet Ms Bajaj said the ratio was 90% hairdressing and
10% beauty;
c)in the reference letter the author stated that the applicant undertook 11 specific tasks, nine of which related to hairdressing and two to beauty yet the letter did not indicate what percentage of the applicant’s work was hairdressing work and what percentage was beauty work;
d)the first applicant told the Tribunal she worked from 10.00 a.m. to 5.00 p.m. until she married and thereafter from 11.00 a.m. until
5.00 p.m. yet Ms Bajaj said the first applicant’s hours of work did not change over time;e)Ms Bajaj told the Tribunal two beauticians and two hairdressers worked at the salon whereas the applicant said three hairdressers worked at the salon;
f)in May 2007 the first applicant told investigators she was famous for bridal makeup in the area where the salon was located yet when asked the same question by the Tribunal the first applicant stated she was well known for her hairdressing skills, which the Tribunal said was an inconsistency;
g)
the letter of reference stated that the first applicant performed hairdressing services to men and women whereas the
first applicant’s husband told the Tribunal men were not permitted in the salon; and
h)the wording of the reference letters was almost identical.
In paragraph 48 of its reasons the Tribunal said it was not satisfied the first applicant was employed as a hairdresser at New Style.
In my view, that conclusion was erroneous. It was not supported by the evidence. Based on the evidence I have catalogued below, no reasonable Tribunal acting reasonably could have reached the conclusion that the Tribunal reached in paragraph 48 of its reasons.
In paragraphs 169 and following of my decision in AKD16 v Minister for Immigration & Anor[20] (“AKD16”), I set out a very detailed examination of the learning (to 24 November 2016, in any case) on legal unreasonableness. The High Court’s decision in Minister for Immigration and Citizenship v Li and Anor[21] remains the
locus classicuson point. Hence, any purported exercise of power will be invalid if it is so unreasonable that no reasonable repository of power could have exercised the impugned power or made the impugned decision in the manner that such power or decision was exercised or made. The list of authorities that have expressed the test in those terms is long, as I recorded in paragraph 175 of my decision in AKD16.
[20] [2016] FCCA 3026.
[21] (2013) 249 CLR 332.
On the facts of this case, in my judgment the conclusion that the
first applicant did not work at New Style, recorded at paragraph 48 of the Tribunal’s reasons, was so unreasonable that no reasonable repository of the power to make such a decision could have reached the decision that the Tribunal made in this case.
Ms Bajaj gave evidence that the first applicant worked at New Style. So did the first applicant herself. So did the first applicant’s husband. The phenomenon of the first applicant’s employment at New Style was not the subject of challenge or confrontation by the Tribunal. To the contrary, the Tribunal challenged the first applicant about peripheral matters such as the duration of the hours the first applicant worked or the proportion of work associated with hairdressing as opposed to makeup, or the layout of the salon, the remuneration received by colleagues or the number of fellow workers at the salon. At no stage did the Tribunal confront the applicant with the concept that the applicant had not worked at New Style at all.
When asked by the Tribunal whether the applicant worked for her,
Ms Bajaj said –
Yes. Yes. Definitely, she worked for me and she was one of the brilliant staff for me.[22]
[22] Court Book filed 20 November 2014 at p.393.
It seemed to me that the Tribunal member was suspicious from the start about the reference letters given in favour of the first applicant. Aspects of those reference letters dominated the Tribunal’s written reasons. In reality, the Tribunal did not accept as credible the first applicant’s version of events concerning her working at New Style. Adverse credit findings will not shield the Tribunal from scrutiny of its
decision-making processes, a matter pointed out in Minister for Immigration and Citizenship v SZRKT,[23] SZLGP v Minister for Immigration and Citizenship[24] (“SZLGP”) and other cases that I drew together in MZARD & Anor v Minister for Immigration & Anor.[25] Minor inconsistencies cannot support adverse credit findings, as Gordon J (then of the Federal Court prior to her Honour’s elevation to the High Court of Australia) said in SZLGP. To my way of thinking, the Tribunal formed an adverse view about the applicant based on the letters of reference and then catalogued an array of inconsistencies, mostly immaterial or inconsequential, then concluded as a fact that the applicant did not work at the salon with the consequence that the Tribunal said that false information had been provided to the Minister.
[23] (2013) 212 FCR 99.
[24] (2009) 181 FCR 113.
[25] [2017] FCCA 343 at [22].
That conclusion, expressed in paragraph 48 of the Tribunal’s reasons, cannot stand. The Tribunal fell into jurisdictional error. Constitutional writs must issue.
Ground 2
Under this ground, the first applicant contended that the Tribunal failed to ask appropriate questions and ignored relevant material and relied on irrelevant material in reaching an erroneous finding and reaching a mistaken conclusion. In particulars to ground 2, the applicant stated that as a result of the error in finding that the first applicant was not employed by New Style, the Tribunal also mistakenly found that documents provided by the first applicant were false, misleading and bogus.
In large measure, the facts that addressed ground 2 were common to the facts that addressed ground 1.
In my view, an abundance of evidence was before the Tribunal that demonstrated that not only did the first applicant work at New Style but that she worked there in the capacity as a hairdresser performing the tasks and duties ordinarily associated with those of a hairdresser. I agree that the Tribunal ignored relevant material in reaching the decision to affirm the delegate’s decision. The Tribunal ignored the evidence of Ms Bajaj, a witness whose evidence most tellingly spoke of the fact that the
first applicant not only worked at New Style but that the first applicant worked in that salon in the capacity as a hairdresser performing the tasks and functions ordinarily associated with those of a hairdresser.Ground 2 succeeded.
Ground 3
In view of my conclusions about grounds 1 and 2, strictly speaking it was not necessary for me to go to ground 3. Be that as it may, under ground 3 the first applicant asserted that the Tribunal failed in its statutory duty to fully and frankly review the delegate’s decision. In particulars to that ground, the first applicant asserted that the Tribunal failed in its obligations under ss.348 and 357A of the Act because, when conducting the hearing, the Tribunal expected the first applicant to recall facts over seven years in the past and the Tribunal failed to provide clear particulars of the information on which the Tribunal would rely as forming its reasons or part of its reasons for affirming the delegate’s decision.
In point of fact, the Tribunal did inform the first applicant of an array of issues that would be the reason or part of the reason for affirming the delegate’s decision. It did so between pages 49 and 53 of the transcript of the proceeding in the Tribunal on 21 May 2014. Whether those passages amounted to “clear particulars” was something else.
In any event, for other and different reasons, in my view the Tribunal conducted this hearing in a peculiar manner. There was no evidence on the transcript that the Tribunal made available to the first applicant the precise information obtained or supplied by the Australian High Commission officers. The Tribunal paraphrased the information on which those officers had allegedly reported, but at no stage was the precise information laid out for the examination of the first applicant or her solicitor. The first applicant and her solicitor had no basis for assessing whether the Tribunal’s paraphrasing of the information said to have been “reported”, as the Tribunal described it, was correct in fact.
The first applicant should have been able to verify whether the matters allegedly “reported” by the Australian High Commission officers was correctly captured in the Tribunal’s questioning. By being denied the document that the Tribunal was paraphrasing or the source of the information allegedly “reported”, the first applicant was denied the opportunity of verifying whether the Tribunal’s paraphrasing of the matters was accurate. In my view, the first applicant was thereby denied a significant forensic opportunity in this case.
While I accept that a proceeding before the Tribunal is inquisitorial, the proceeding must nevertheless be conducted fairly. Sections 348 and 357A of the Act make provisions to like effect.
In my view, in this case the Tribunal did not conduct a fair hearing.
Ground 3 has succeeded.
Constitutional writs must therefore issue.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 23 March 2017
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