Bajwa v Minister for Immigration

[2018] FCCA 3995

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAJWA v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3995

Catchwords:
MIGRATION – Application for judicial review – appeal of Administrative Appeals Tribunal – student visa – finding of fact – application granted.  

Legislation:

Migration Act 1958 (Cth).

Cases cited:
Jones v Dunkel (1959) 101 CLR 298
Nuhic v Rail and Road Excavations (1972) NSWLR 204

Applicant: GURPARTAP SINGH BAJWA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 826 of 2016

Judgment of: Judge Riethmuller

Hearing date: 17 September 2018

Date of Last Submission: 17 September 2018

Delivered at: Melbourne

Delivered on: 17 September 2018

REPRESENTATION

The Applicant appeared In Person

Counsel for the First Respondents: Mr Knowles

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. A writ of certiorari issue, quashing the decision of the Second Respondent date 4 April 2016.

2. A writ of mandamus issue directed to the Second Respondent requiring it to re-determine the application according to law.

3. The First Respondent pay the Applicant’s costs fixed in the sum of $550.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 826 of 2016

GURPARTAP SINGH BAJWA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) dated 4 April 2016. The decision affirmed a decision of a delegate of the Minister not to grant the applicant a student visa. 

2. The core issue in this case relates to whether or not information that had been provided to the effect that the applicant’s grandfather, Mr Jagjit Singh, had money in a bank account. Various documents and an affidavit were provided by the applicant, all referring to ‘Jagjit Singh’.  It does not seem to be disputed that the applicant has a grandfather called Jagjit Singh; the issue that arose was whether or not the financial documents in the name of Jagjit Singh related to the same person that is his grandfather. 

3. Following the provision of the documents, it appears that they were sent to a case officer of the department for consideration as to their veracity: see Court Book (‘CB’) p.55.  There is no response material in the Court Book setting out the results of any inquiries made either by the Australian mission in India, nor local officers of the department, as to why it is that the department may have formed the view that the Jagjit Singh referred to in the financial documents is not in fact the Jagjit Singh that is the applicant’s grandfather. 

4. Despite this, a letter was sent to the applicant on 15 September 2014 asking for his comment on adverse information that had been received.  That letter included the following relevant paragraphs (at CB p.63):

   Adverse information received

   The department has conducted checks to confirm the information that you provided in your application.  During this process we have received unfavourable information which does not support your application.

   Previously you provided financial documents in support of your student visa application.  The department has conducted integrity checks to confirm the documents you have provided.  The integrity checks conducted have suggested that the funds shown do not belong to your maternal grandfather as claimed by the financials belong to a different person with same name as JAGJIT SINGH.  Therefore, the identity of the sponsor and the actual account holder are different.

5. The applicant was sent a further letter on 13 January 2015 seeking similar comment, including in the letter the following relevant paragraphs:

   …

   On 05/09/2014 [an] integrity referral was completed by the Department in New Dehli regarding the genuineness of the documents and the information contained within.

   Based on interviews and document checks, the departmental referral has determined that your financial capacity and documentation provided is non-genuine based on the following.

   1) The deposit held in name of “Jagjit Singh” is not the actual grandfather of the applicant therefore you have provided false information pertaining to the identity of the sponsorships and the capacity to support your stay in Australia.

   …

   You may provide comment on the information that is considered to be false or misleading or the document that is considered to be bogus, and specify if you believe there are any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of any or all PIC 4020(1) and (2) to justify the granting of the visa.

6. The applicant does not appear to have responded to these letters. The delegate then made a decision in this case stating:

   …

   On 05/09/014 [an] integrity referral was completed by the Department in New Dehli regarding the genuineness of the documents and the information contained within.

   Based on interviews and document checks, the departmental referral has determined that your financial capacity and documentation provided is non-genuine based on the following:

   1. The deposit held in name of “Jagjit Singh” is not the actual grandfather of the applicant therefore you have provided false information pertaining to the identity of the sponsorship and the capacity to support your stay in Australia.

   …

   You were provided with 28 days to provide comment on the suspected ‘non-genuine’ information supplied to the Department.

   To date, no response to the invitation to comment has been received.

   Based on the evidence and information before me, I find that the applicant given a bogus document within the meaning of s 97 of the Act or information that is false or misleading in a material particular.  Accordingly, I am not satisfied that the applicant meets Public Interest Criterion (PIC) 4020, subclause 4020(1).

7. The delegate appears to have proceeded upon the assumption that the allegation as to the Jagjit Singh in the financial documents not being the applicant’s grandfather (which at this point is completely without any evidentiary foundation in any place in the Court book), was bolstered by the applicant’s failure to respond to the letters, making it sufficient to conclude that it was the applicant who had given a bogus document to the department. 

8. The applicant then sought a review with the Tribunal. The Tribunal wrote to the applicant on 15 March 2016 inviting him to comment on information in the letter, including the following passage:

   Invitation to provide information

   Following from the above, the Tribunal invites you under s.359(2) to provide the following information in writing:

   1. Information which demonstrates that you have not given, or caused to be given, a bogus document to the Minister, an officer, or the Tribunal during the review of a Part 5-reviewable decision, a relevant assessing authority or a Medical Officer of the Commonwealth in relation to the application for the visa or another visa you held in the 12 months before you applied for the visa;

9. Again, the applicant does not appear to have responded. As a result, the matter proceeded to a determination by the AAT on 4 April 2016. That determination was made without further hearing from the applicant, as is required under the Act when the applicant does not respond to an invitation to comment on material. 

10. In that decision, the AAT made relevant findings for the purpose of these proceedings at paragraph 16 to 21 as follow:

    16. The applicant provided a copy of the delegate's decision to the tribunal in which the delegate notes:

    a. That the applicant provided to the Department an affidavit of support and financial information for a "Jagjit Singh" who was described as the applicant's grandfather;

    b. Departmental investigations out of New Delhi revealed that "Jagjit Singh" was not the applicant's grandfather.

    17. A grandfather is an 'acceptable individual' in Schedule SA. Evidence of funds held by such an individual are capable of being given to satisfy cl.572.223(2)(a), and therefore relevant to whether that criterion is satisfied.

    18. The tribunal finds that the information given by the applicant to the Minister's delegate, an· officer of the Department, included information that "Jagjit Singh" was his grandfather.

    19. The tribunal finds on the evidence that "Jagjit Singh" is not in fact his grandfather and is not any other kind of acceptable individual noted in Schedule SA.

    20. The information given by the applicant is false and misleading because it represents "Jagjit Singh" as his grandfather, an acceptable individual, when this is not and has never been the case. The result is that the giving of evidence of funds held by "Jagjit Singh" was passed-off as being capable of satisfying cl.572.223(2)(a), when it was in fact not.

    21. For these reasons, the information given is false and misleading in a material particular because it was false and misleading at the time it was given and it was relevant to a criterion (cl.572.223(2)(a)) the Minister may consider with making a decision on the application, regardless of whether the decision is made because of the information: PIC 4020(5).

11. In short, this case turns on whether or not it was open to the Tribunal to make the positive finding of fact that the Jagjit Singh referred to in the financial documents was not the grandfather of the applicant, as they did at paragraph 19, a finding from which the balance of their reasons flows. 

12. This is a most unusual case. There is no evidentiary foundation in the Court book for the claim that the Jagjit Singh in the financial documents is not the grandfather of the applicant.  It was an allegation that began in the letter of the delegate and because it was not answered, it assumed by the delegate to show a bogus document and because it was not answered to the Tribunal it then became elevated to a basis for a finding of fact that the Jagjit Singh, so named, is not in fact the grandfather of the applicant. 

13. It does not appear to me that those findings were open on the basis of evidentiary material before the delegate or the Tribunal, as no evidentiary material appears in the Court book.  Counsel for the Minister sought to rely upon the lack of response by the applicant to the letters inviting him to provide comment and in addition to the fact that he had provided the delegate’s decision to the Tribunal when seeking the review.  It does not seem to me that in a case where one of the fundamental difficulties with the delegate’s decision is that it was without evidentiary basis, that the provision of that decision can then elevate the allegation to an evidentiary basis for a finding of fact, as made by the Tribunal in this case. 

14. I have turned my mind to whether or not the failure of the applicant to respond to the letters provides a basis for the Tribunal to draw the strong inference that it did at paragraph 19 of its reasons.  It appears to be an inference of the style and commonly referred to as flowing from the rule in Jones v Dunkel (1959) 101 CLR 298 at 320. The rule in Jones v Dunkel allows an inference to be drawn where evidence is not provided by a person who one would ordinarily expect to have that evidence available to them; but importantly it is an inference that is drawn when there is some evidence of facts and circumstances, not merely a bare allegation: see, for example, Nuhic v Rail and Road Excavations [1972] NSWLR 204 at 221.

15. In this case, in the absence of any evidentiary basis for the allegation, it does not appear to me that it was legally reasonable to draw an inference sufficient to found a finding of fact, as drawn by the Tribunal, merely from the failure of the applicant to respond to the letters. If there had been some modicum of evidence, albeit slight, that may have been sufficient in the absence of a clear response from the applicant, but that just doesn’t seem to be available in this case. 

16. Whilst the applicant has listed a number of grounds and given brief written submissions, it is clear that even from a layperson’s perspective, the core problem remains the same. He says that he provided evidence that Jagjit Singh was his grandfather. He doesn’t understand why they would say otherwise. Counsel for the Minister was in the invidious position that on the material in the Court book, aside from assuming that somebody had inquired into it and spoken to the delegate, as appears to be an inference from the delegate’s letter, he was unable to point to the evidence or reasons for the allegations against the applicant. 

17. In these circumstances, I have decided that the applicant has made out his claim and that the constitutional writs should issue quashing the decision of the Tribunal and directing that the matter be heard and determined according to law.  If there is in fact evidence of these matters against the applicant, then it should be squarely considered in order to make the types of findings that are required in a case of this type. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:

Date: 17 April 2019