Brar v MIAC
[2012] FMCA 519
•31 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRAR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 519 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a skilled residence visa – TRA skills assessment found to be a bogus document because based upon false employment record – whether the Tribunal showed pre-judgement giving rise to an apprehension of bias considered – Tribunal proceeded on the basis that there was a large class of false claims and the issue was whether the applicant belonged to that class – no opportunity for the applicant to challenge the Tribunal’s assumption – whether the failure to lawfully specify TRA as an assessing authority at the relevant time invalidated the decision considered. |
| Migration Act 1958 (Cth), ss.97, 101, 103, 107, 109, 359A, 360, 368 Migration Regulations 1994 (Cth) |
| Batra v Minister for Immigration & Anor [2012] FMCA 544 Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Zhao v Minister for Immigration [2000] FCA 1235 |
| Applicant: | MANJINDER SINGH BRAR |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 559 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 15 June 2012 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Young |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue, removing the record of the decision of the Migration Review Tribunal made on 7 March 2011 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Tribunal to redetermine the review application before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 559 of 2011
| MANJINDER SINGH BRAR |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This matter is before the Court for a second time[1] in consequence of the Minister’s successful appeal against my earlier decision[2]. The background facts and circumstances to the proceedings are detailed in my earlier judgment and in the judgment of the Full Federal Court. In essence, these proceedings challenge a decision of the Migration Review Tribunal (“the Tribunal”) to affirm a decision of a delegate of the Minister to cancel Mr Brar’s Skilled Residence – Sponsored visa on the basis that he had obtained the visa through the use of a bogus document.
[1] See Brar v Minister for Immigration & Anor [2011] FMCA 435
[2] See Minister for Immigration v Brar [2012] FCAFC 30
The following brief statement of background facts is derived from the submissions of the parties and the earlier court judgments. Mr Brar is a citizen of India[3]. He applied for the visa on 24 May 2008[4]. He was granted the visa on 31 March 2009[5]. On 30 June 2010 the delegate notified Mr Brar that he was considering cancelling the visa pursuant to s.107 of the Migration Act 1958 (Cth) (“the Migration Act”)[6]. The delegate cancelled the visa pursuant to s.109 of the Migration Act on 12 October 2010[7]. Mr Brar applied to the Tribunal for review on 19 October 2010[8]. On 19 November 2010 the Tribunal wrote to Mr Brar pursuant to s.359A of the Migration Act[9]. The Tribunal held a hearing on 7 March 2011[10], and made its decision the same day.
[3] court book (CB) 2
[4] CB 1-58
[5] CB 59.4
[6] CB 59-70
[7] CB 148-162
[8] CB 163-170
[9] CB 178-181
[10] CB 203-205
The basis of the delegate’s decision was that Mr Brar had falsely claimed 900 hours unpaid work experience at Dom’s Family Bistro and Pizza Restaurant in Thomastown, Melbourne from December 2006 to December 2007[11] in his successful application to Trades Recognition Australia (“TRA”) for assessment of his skills as a cook[12]. The delegate relied upon information that Dom’s owner had been paid for false reference letters for international students, and that no international students completed work experience at Dom’s[13]. Before the Tribunal Mr Brar claimed that he had in fact worked 900 unpaid hours at Dom’s, and led evidence from a housemate that he had driven Mr Brar to and from Dom’s on several occasions. The Tribunal rejected this evidence, noting that it had not been provided to the delegate, and rejected Mr Brar’s claim that to do so had slipped his mind. The Tribunal also noted that Thomastown was a long distance from West Footscray where Mr Brar was living at the time he claimed to have been working at Dom’s, and rejected his claim that he had come across Dom’s by chance and had spontaneously entered it and asked for work experience. The Tribunal relied upon the same information as the delegate to find that Dom’s had fabricated work references for international students for money, and found that Mr Brar did not work at Dom’s and that the TRA skills assessment was therefore a “bogus document” within s.97 of the Migration Act, and so Mr Brar had breached s.103 of the Migration Act by providing it in his visa application[14]. As a result, the cancellation power in s.109 of the Migration Act was enlivened, and the Tribunal determined in its discretion to cancel the visa[15].
[11] CB 53-56
[12] CB 39-40
[13] CB 155.6-157.2, 158.2
[14] See generally CB 218-219
[15] CB 219-221
The judicial review application
These proceedings began with a show cause application filed on 28 March 2011. An amended application was filed on 18 May 2011. That application was the subject of my earlier judgment. That amended application contains 10 grounds:
1. The second Respondent made a jurisdictional error in that there was a reasonable apprehension of bias by reason of:
(a) The second Respondent readily accepted information given in an interview from an unnamed individual who was on his own admission perpetrating fabricated work references and involved in fraud while treating sworn evidence from the applicant and his witness with scepticism and overzealous scrutiny.
(b) The form and content of the s.359A notice set out in ground 3 below.
2. In the alternative to 1 above, the Second Respondent made jurisdictional error by adopting an inappropriate onus on the applicant and witness for him stating that the credibility of everyone associated with the application would be subject to scrutiny (while plainly not adopting such scrutiny in relation to information and inferences from information given by an immigration fraudster).
3. The second Respondent made jurisdictional error by failing to comply with the requirements of s.359A of the Migration Act 1958.
a) The notice did not set out clear particulars of information as required but treated or included conclusions on matters which at the point of the inquiry the Second Respondent was not entitled to make conclusions as if it were information.
b) The Second Respondent did not comply with its statutory obligations under s.359A(i)(a), (b) or (c).
4. The second Respondent made jurisdictional error by treating errors in the s.107 notice in relation to particulars as being capable of being waived by the Second Respondent on the basis of a general purposive approach to incorrect particulars in [the] s.107 notice.
5. The second Respondent failed to comply with s.[360] of the Migration Act in that the Second Respondent made only passing reference of the “central allegation” of whether the applicant had worked for Dom’s as he claimed.
6. The Second Respondent made jurisdictional error by demonstrating in the s.359A letter and at hearing a reasonable apprehension of bias in that the Second Respondent pre-judged issues of whether the applicant had been employed at Dom’s and whether he had sought out the services of a corrupt individual to manufacture a work reference.
7. The Second Respondent made findings of fact that the applicant had sought out the services of a corrupt individual to manufacture a work reference:
(a) in breach of s.[360] and the principles of procedural fairness
(b) where there was no evidence to support such finding
8. The Second Respondent made jurisdictional error by findings that TRA skill assessment document had been presented to an authorised system where there was no evidence that the online system was an automated system authorised in writing for the purposes of s.103.
9. The Second Respondent failed to have regard to the contribution made by the applicant in employment not merely as a “mitigating factor” but as a matter required to be taken into consideration under r2.41(K) of the Migration Regulations.
10. The Second Respondent failed to apply Reg.2.41 of the Regulations where it found no evidence of certain matters under paragraphs (f), (g) and (j) of Reg. 2.41 and failed to apply Reg. 2.41 by indicating in respect of each paragraph whether the factor was positive, neutral or negative in the decision making process.
Grounds 3 and 8 have been dealt with conclusively in the judgment of the Full Federal Court. The matter has been returned to this Court for the purpose of dealing with the remaining grounds.
At the re-hearing of this matter on 15 June 2012 I permitted Mr Brar to rely upon a further amended application annexed to his written submissions filed on 6 June 2012. The further amended application adds three additional grounds:
11. The notice issued in purported reference to s.107 of [t]he Migration Act was invalid in that it:
a) represented incorrectly that Trade[s] Recognition Australia was a relevant assessing authority for the purpose of consideration of the visa applied for by the applicant
b) represented incorrectly that the eligibility of the applicant to apply for the visa was conditional on a successful result from TRA
c) failed to advise the applicant that TRA was not a relevant assessing authority at the time of the application and consideration of the application for a visa.
12.The Second Respondent made jurisdictional error at [CB]218[31] by treating the s.107 notice as particulars is a false claim in the visa application as to employment whereas the statement as to non-compliances in the section 107 notice particularised that information provided to TRA was false.
13. Further or in the alternative, in relation to the alleged non-compliance with s.101(b), the s.107 notice was invalid by reason that the truth or otherwise of information provided to TRA was incapable of amounting to non-compliance with s.101(b).
Grounds 9 and 10 in the amended and further amended application were not pressed.
I have before me as evidence the court book filed on 9 May 2011 and the affidavit of Renee Quinn made on 4 July 2011, to which is annexed a transcript of the Tribunal hearing conducted on 7 March 2011.
The parties made written and oral submissions in relation to the grounds of review requiring determination by the Court.
Consideration
Ground 1 – Is the Tribunal decision vitiated by an apprehension of bias?
Ground 1 claims the Tribunal exhibited apprehended bias. Such an allegation is serious and must be “firmly established”: Re JRL; Ex parte CJL[16]. For the Tribunal to have exhibited apprehended bias the Court would need to be satisfied that a fair minded observer might apprehend that the Tribunal was not impartial[17]. However the inquisitorial nature of the Tribunal’s proceedings must be taken into account, such that the Tribunal is necessarily required to test an applicant’s evidence, often vigorously[18]. The fact that the Tribunal may have formed a preliminary view of the applicant’s or a witness’ credit during the hearing is no evidence of bias[19]. Nor is the hypothetical observer entitled to make “snap judgments” any more than the Tribunal[20].
[16] (1986) 161 CLR 342 at 352 per Mason J, 359-360 per Wilson J, 371-372 per Dawson J
[17] Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 (HCA) at [27]-[28]
[18] Ex parte H at [29]-[30]
[19] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at [72], [186]
[20] Johnson v Johnson (2000) 201 CLR 488 at [13]. See generally Minister for Immigration v SZQHH [2012] FCAFC 45 at [37]-[42] per Rares and Jagot JJ
In my earlier judgment, as was noted by the Full Federal Court on appeal, I made some observations concerning the apprehension of pre‑judgement that might be said to arise from the terms of the Invitation to Comment issued by the Tribunal pursuant to s.359A of the Migration Act. I said in my earlier judgment that in relation to the bias issue, close attention would need to be given to the transcript of the Tribunal hearing. In view of the decision of the Full Federal Court in relation to Ground 3, I am now of the view that it would be inappropriate to place any particular significance on the terms of the s.359A invitation in relation to Ground 1 and the attention of the Court should be directed to the hearing conducted by the Tribunal.
Mr Brar strenuously contends that the transcript of the Tribunal hearing gives rise to an apprehension of bias. Mr Brar alleges that there is a reasonable apprehension of bias by reason of the treatment of him and his witness.
Mr Brar submits that the treatment of the witness in particular, was so gross and so flagrant, its unfairness was such as to be close, if not over, the demarcation line into actual bias. At question 81[21], the Tribunal member asked the witness if he knew why he was there. He was then asked if he understood the significance of the oath he had just taken. Without evidence having been taken, he was then cross-examined as to whether he understood the meaning of the word “perjury” and understood the sanctions in Australia for perjury.
[21] Transcript (“T”), page 12
The transcript supports the contention that the Tribunal was surprised by the attendance of the witness to support Mr Brar’s case, as it had been given no notice of the attendance of the witness.
The Tribunal stated at [35][22] of its reasons that it found the witness an evasive and untrustworthy witness who gave faltering and clumsily constructed evidence. I find no support in the transcript for that conclusion. The witness gave short and direct answers to the questions put to him. The Tribunal went on to say that it gave no credence whatever to this evidence.
[22] CB 218-219
There is a question whether the witness was overborne by the combative approach by the Tribunal from the outset.
At pages 12-17 of the transcript, the witness attempted to answer the Tribunal’s questions but the exchange supports a conclusion that nothing that the witness could say was likely to change the Tribunal’s mind. The witness[23] stated that he had never gone into the pizza restaurant with Mr Brar. The member pressed the point by stating that surely the witness at some stage went into the restaurant if only to order a pizza. The witness conceded that he had once suggested that they get a pizza to take home. At Q106[24] the Tribunal member put a loaded question which, unsurprisingly, did not receive any reply:
TRIBUNAL MEMBER
Q106O.K. But normally you didn’t actually sort of see him work, you kind of dropped him off and he walked away and then in the evening you sit there and wait around and he’ll come out and kind of, yeah. So, and these were occasion on which your, your shifts sort of coincided. I mean, you finished work at Carlton and drove out to pick him up, did you?
[23] T, page 16
[24] T, page 16
WITNESS
(NO AUDIBLE REPLY)
Prior to the witness being called, the Tribunal member had dealt with minor matters without putting the central allegation that Mr Brar had provided a bogus document. At question 2[25] the Tribunal member, after saying that “as a matter of law, as a matter of fairness and common decency I’m about to offer you a hearing to ventilate my concerns and to invite you to make any comments or throw up any evidence that you think might be relevant…” stated that he seemed to specialise in cases where the behaviour of previous immigration agents and solicitors was impugned. At questions 78-80[26] the Tribunal stated apparently gratuitously that the brother of the person who owned the restaurant had disappeared and had been involved, or alleged to have been involved, in similar activities to the owner of Dom’s Restaurant.
[25] T, pages 1-2
[26] T, pages 11-12
The Tribunal did not apparently expect Mr Brar to deal with these matters. The Tribunal appears to have entertained no about that it was dealing with a major fraud and that anyone associated with the restaurant was tainted by that fraud. It was only after the witness had given evidence that the Tribunal dealt at all with what it described as the “central allegation”.
At Q115[27], the Tribunal addressed the central issue in the briefest manner. The presiding member stated:
The central allegation remember quite simply is, and let’s repeat it, it was all in the 359A letter, but do you recall that it was whether you did or did not work at Dom’s and therefore by implication that the TRA positive skills assessment was fraudulently obtained. It’s called a bogus document under the Act and so on. So do you have anything to say about that bit before we go on?
[27] T, page 18
In his answer at Q117[28], Mr Brar stated how difficult it was for him to deal with the allegation that information had been given by an informant. He stated that he did not know the person who had made the allegation nor what connection he had with Dom’s Restaurant. He asked the informant’s name. The Tribunal member responded at Q118[29] that he assumed that was a rhetorical question.
[28] T, pages 18-19
[29] T, page 19
Mr Brar was stating that it was extremely difficult for him to deal with an allegation which was from an unnamed individual and where he had no knowledge of whether that person worked at Dom’s or what the basis of his alleged knowledge was. The Tribunal member was wrong to simply dismiss this on the basis of a statement that he assumed that all of that was rhetorical.
The allegations against Mr Brar were serious. It was incumbent upon the Tribunal to raise the issues of concern it had with him and his witness[30]. There is no reason to infer apprehended bias simply because the Tribunal has asked difficult questions. Nor can one infer apprehended bias simply because the witness’ evidence was subsequently disbelieved by the Tribunal. It was necessary for the Tribunal to decide whether it believed Mr Brar and his witness, and make findings accordingly[31]. There is no doubt that the Tribunal came to the hearing with a preliminary view adverse to Mr Brar. That was why the hearing invitation had been issued. That does not support an apprehension of bias either. However, Mr Brar was entitled to a fair opportunity to attempt to change the Tribunal’s mind. In my view, Mr Brar was not given that opportunity.
[30] cf SZBEL v Minister for Immigration (2006) 228 CLR 152
[31] Minister for Immigration v SGLB (2004) 207 ALR 12 at [44] per Gummow and Hayne JJ
In my view, by the apparently unquestioning acceptance of general information from an informant, even before hearing from Mr Brar and his witness, by treating as rhetorical questions from Mr Brar directed to the reliability of the information from the informant, and by treating from the outset evidence provided in support of Mr Brar’s case by his witness as very probably false, the Tribunal indicated pre-judgement. A fair minded observer, aware of all the relevant circumstances, would understand that the Tribunal was in possession of information that there was a class of persons of significant number who had falsely claimed to have worked at Dom’s Restaurant. The Tribunal appeared to limit its inquiry to the question of whether Mr Singh was able to exclude himself from that class of persons. However, Mr Brar was entitled to challenge the proposition that the class of persons established in the information obtained by the Tribunal really existed. Mr Singh was entitled to challenge the information which the Tribunal relied upon to establish that class. By assuming that the information available to the Tribunal from the informant was reliable the Tribunal did not afford Mr Brar that opportunity and pre-judged that issue. This supports a finding that the Tribunal’s decision is vitiated by a reasonable apprehension of bias and Mr Brar should receive the relief he seeks.
Ground 2 – Did the Tribunal impose on Mr Brar an inappropriate onus?
This ground is said to flow from Ground 1. Mr Brar contends that the Tribunal accepted without question information provided by the informant that no international students had worked at Dom’s.
While it is open for a Tribunal to accept information which has not been given before it and reject the sworn evidence of an applicant and witness who have given evidence before the Tribunal, the nature of the jurisdictional task requires the Tribunal to consider the evidence before it.
The basis of the Tribunal’s findings is at [34] of its reasons[32]. It stated that it had “seen” evidence that in the course of an interview with departmental investigators in November 2009, an individual who was highly placed in the provision of cookery training to international students, admitted to receiving cash payments from numerous visa applicants for fabricating employment references on their behalf and paying the owners of Dom’s and other businesses between $300.00 and $400.00 for their signatures on each such document. It was further stated that hundreds of false work references were found at the residence of this individual who confirmed that no international students had worked at these businesses.
[32] CB 218
That evidence was not included in the court book. Something was apparently available to the delegate and the Tribunal but neither Mr Brar, nor his legal advisers, nor this Court have been given the opportunity to scrutinise it.
The statement of the Tribunal at [34] is different to the statement of the delegate at [9][33]. The delegate stated that the person who had given the information was a mediator. There is no reference to any work references being found at the premises or residence of that individual. There is also no reference in the decision of the delegate to that individual receiving cash payments from visa applicants for fabricating employment references on their behalf, nor of paying the owners of Dom’s for false references.
[33] CB 155
In considering whether to accept the claims of an informant against sworn evidence of two people, the Tribunal must consider the quality and nature of the evidence allegedly in an interview with departmental investigators. The Tribunal must state what the basis of the evidence is and whether in the face of the denials of the applicant and the witness it accepts that evidence. The Tribunal performed no such task. What it did was to state its consideration of the nature of the information at [34][34] and then to treat this evidence as if it was true. It then went on to consider the evidence of the applicant and the witness against evidence which it already regarded as true.
[34] CB 218
The Tribunal had to set out its findings on material questions of fact and refer to the evidence on which those findings were made (s.368). While s.353 gives the Tribunal a broad discretion to receive information, it had to decide disputes as to the facts. The Tribunal simply took it as a given that work references from Dom’s generally were false and the task of Mr Brar was to convince the Tribunal that his work reference was not “also false”[35].
[35] [35] at CB 218
At [35][36] the Tribunal reinforced the pre-judgement which attended its consideration of the evidence at the hearing. It stated that it did not accept that Mr Brar, a resident of West Footscray, just happened upon Dom’s, which was one of a small number of similar businesses that was widely known to be heavily involved in the provision of false work references for international students.
[36] CB 218
This is alleged by Mr Brar to be a statement completely without evidence. I disagree. The information from the informant may well have supported a conclusion that Dom’s was widely known to be heavily involved in the provision of false work references. The difficulty with the way the Tribunal approached its jurisdictional task was rather to consider it from the basis that the summation of the informant’s claims must be true, and to assume that notwithstanding his denials, Mr Brar knew (because everybody knew) that Dom’s was one of a small number of businesses widely known to be heavily involved in the provision of false work references for international students.
Mr Brar contends that, contrary to the statement of the Tribunal that it approached the matter from a standpoint similar to the Briginshaw standard, it approached the matter on the basis that Mr Brar had to persuade the Tribunal that somehow he was not personally involved in providing bogus documents, notwithstanding that Dom’s was heavily involved (upon the basis of a fact supported only by the claims of the informant) in the provision of false work references for international students.
The difficulties in the Tribunal’s reasoning, however, while they support the apprehension of bias dealt with in Ground 1, do not support the contention in Ground 2. The Tribunal correctly stated that there was no onus on Mr Brar, and that it was appropriate to bear in mind the gravity of the consequences of cancellation[37]. It did so[38]. The Tribunal’s statement to Mr Brar and his witness at the hearing that the credibility of everyone associated with the application would be subject to scrutiny[39] does not indicate an inappropriate onus, but simply a statement of the gravity of the Tribunal’s concern. Plainly Mr Brar’s credibility was in issue given the circumstances, and it was proper that this be made explicitly clear to him. I reject the contention that the Tribunal imposed an onus on Mr Brar[40].
[37] CB 213 [9]
[38] CB 221 [55]
[39] CB 216 [22]
[40] see similarly Zhao v Minister for Immigration [2000] FCA 1235 (FC) at [32]-[34]
Mr Brar’s submissions on this ground appear also to assert that the Tribunal “assumed” that the allegations in its s.359A letter were true without regard to Mr Brar’s explanation. The Tribunal was faced with a conflict between information available to it (apparently from the informant) which supported an inference that Mr Brar had never worked at Dom’s and Mr Brar’s own evidence, and that of his witness, that he had worked there. The Tribunal was required to decide between evidence and the inference by s.368(1)(c) of the Migration Act[41]. Plainly, the Tribunal gave no credence to Mr Brar’s protestations of innocence but it does not follow that the Tribunal placed an onus on Mr Brar when it explicitly states the contrary. The Court cannot review the merits of the Tribunal’s decision, and there is no error of law in the Tribunal making a wrong finding of fact or engaging in unsound reasoning[42]. This ground fails.
[41] SGLB at [44]
[42] see Minister for Immigration v SZNPG (2010) 115 ALD 303 (FCAFC) at [20] and cases there cited
Ground 5 – Did the Tribunal breach s.360 of the Migration Act?
This ground overlaps with Grounds 1 and 2.
In response to the Tribunal’s s.359A letter, the representative of Mr Brar[43] stated that Mr Brar looked forward to the opportunity to respond at the hearing. It is unfortunate and regrettable that he was not during the course of that hearing given a fair opportunity to deal with the allegations against him because of the Tribunal’s pre-judgement.
[43] at CB 188
It does not necessarily follow, however, that that pre-judgement means the Tribunal did not comply with s.360 of the Migration Act. The requirements of procedural fairness under the general law, and the requirements of the section do not necessarily coincide. The statutory obligation was to provide a real hearing opportunity for Mr Brar to address the issues of concern to the Tribunal[44]. Mr Brar claims that the Tribunal made only “passing reference” to whether he had worked at Dom’s at all. In fact the transcript indicates that this matter was put to him, albeit briefly[45], and had also been raised in the s.359A letter which was itself discussed at the hearing although again, only briefly and lightly. Mr Brar’s opportunity to address the central issue before the Tribunal was limited to the following exchange[46]:
[44] See Chey v Minister for Immigration [2007] FCA 871 at [20]-[27]
[45] Question 115, T, page 18
[46] T, pages 18-20
Q114 Mmm. Yeah. Right. O.K. Well, that covers, pretty much covers the questions I wanted to ask you about, remember I described there being two sort of steps, two phases, two, two, two issues if you like, or sets of issues to be considered. Before we move onto the second part is there anything else you want to say about the issue of whether grounds exist to cancel the visa? That’s, yeah, basically other things alleged by the delegate, other things that he or she, I think it was a she, alleged are they true. Do you have anything to say about that?
A …..
Q115 The central allegation remember quite simply is, and let’s repeat it, it was all in the 359A letter, but do you recall that it was whether you did or did not work at Dom’s and therefore by implication that the TRA positive skills assessment was fraudulently obtained. It’s called a bogus document under the Act and so on. So do you have anything to say about that bit before we go on?
A At that time I just was shocked, you know, how you can believe that ….. don’t know his name ….. go through, like court ….. overseas students ….. work there. I worded there honestly.
Q116 Mmm.
A How, how, how this immigration can believe that, I show that experience two years back, as a result I got my permanent residency.
Q117 Mmm.
A And this guy’s saying, I don’t know what his name, whether he work in Dom’s, I don’t know any idea ….. saying, you know, all overseas students didn’t work there. That’s, that’s not good. I worked there, as a result I got my permanent residency, as a result I’m working ….. working four or five different restaurants. If I am the ….. my permanent residence, I can drive taxi, I can do security, no, that my profession. I’m in this ….. I’m 26 years, I’m a sous chef right now. As a part of that ..... also include ….. every time I’m going ….. and maybe in two or three years I become maybe a head chef ….. I’m not sure why immigration person, that guy, you know, I was there, I work always, I’m an asset to this country, I pay taxes, I go there and work there, I learn there. I pay that ….. as a volunteer. And this guy’s saying no one worked there, I don’t know who’s that guy, what his name. Did he come …..
Q118 I assume that’s a rhetorical question. But as I said earlier, I am listening to you. O.K.
A Yeah. So I don’t know what they will do with this. I worked there, I worked hard there, I worked ….. from me because they know I can work, I can ….. They use me. Doesn’t matter if for benefit of me as a result I got my PR …..
Q119 Mmm.
A I don’t know what they do with the other overseas students. This doesn’t link with my status. I’m working as a chef right now. I work always as a chef, Australian best school, I work hard, go full-time there, go there voluntary work there and go home.
Q120 Mmm. And the basis on which you found yourself working there - - -
A Yes.
Q120 - - - was that you were driving out to see a friend one night and - - -
A Yeah.
Q120 - - - just happened to stop.
A I’d been there, they already sold the property to someone else, the name of the property has been changed.
Q121 Yes, I know.
A …..
Q122 It’s, no, it’s, it’s one of those Domino’s or something like that.
A No, it’s Falcon ….. something.
Q123 Is it?
A Falcon, yeah.
Q124 O.K. I spoke to somebody …..
A ….. I talk to him, you know, I want to - - -
Q125 Yeah.
A All staff has been changed. It’s like four years’ back, you know.
Q126 Yeah.
A ..... you know, to the TRA, you know ….. I got that Indian work experience from India. I ….. and I was, I was, if I lie, I can show my Indian experience and I can easily get my PR residence.
Q127 And why didn’t - - -
A But I was honest.
Q128 And why didn’t you?
A Because I was working there. Why should I show my previous experience? I will show my current experience because that’s the latest experience and this is in Australia. I’m working ….. show that experience. Why should I show my previous experience?
Q129 I don’t know. I think it’s a rhetorical question too.
A If I’m the liar - - -
Q130 But mine was a real question.
A Yes.
Q131 Just why not, why didn’t you? Would it have been, was it, would it have been acceptable to TRA do you think?
A I have no idea, he didn’t inform me, but I got that letter so there was no issue.
The ground is not assisted by the extravagant description in Mr Brar’s submissions of the Tribunal hearing as a “farce”. The Tribunal did raise with Mr Brar the issues arising in relation to the decision under review[47]. Plainly, Mr Brar understood the allegation being made against him and attempted to counter it. He may not have been able to do so even if the Tribunal had not indicated pre-judgement.
[47] cf SZBEL v Minister for Immigration (2006) 228 CLR 152
It was however a flawed hearing. The presiding member pre-judged the issue of whether there was a major fraud involving international students at Dom’s. The Tribunal was unwilling to share any details of the information it was relying upon with Mr Brar. This left Mr Brar unable to attempt to answer the Tribunal’s concerns. All he could say was that, whatever fraud there may have been, he was not a part of it. The opportunity sought in the advisor’s response to the invitation to comment was never provided. For the hearing to be truly useful to Mr Brar, it needed to be. In my view, the Tribunal fell into the same error identified in Chey[48] at [31]. The information about the alleged fraud at Dom’s monopolised the Tribunal’s attention as an established fact and Mr Brar had no opportunity to address that issue by evidence or argument. This constituted a breach of s.360 and a jurisdictional error.
Grounds 6 and 7 – Did the Tribunal otherwise give rise to an apprehension of bias or breach s.360 in relation to the issue of whether Mr Brar had been employed at Dom’s?
[48] op cit
There is some confusion in Mr Brar’s submissions as to whether these grounds are truly an assertion of bias and a breach of s.360 or whether they are allegations of factual findings based upon no evidence.
At [37][49] the Tribunal found that Mr Brar did not work at Dom’s in any capacity, paid or otherwise, during the period claimed in the purported work reference which was fraudulent and was obtained from an intermediary in exchange for money paid by Mr Brar for that purpose.
[49] CB 219
Mr Brar contends that there was no evidence to support the finding that Mr Brar paid money for the work reference, nor was it in any way raised by the Tribunal at the hearing.
At [72] in its decision, the Full Federal Court stated that the s.359A letter was not a statement by the Tribunal that it had direct information that Mr Brar had obtained the work reference letter from the intermediary.
The Tribunal had no direct evidence that Mr Brar had obtained a work reference from anybody, or that he had paid for it. The contention by Mr Brar appears to be that if the Tribunal was minded to make such a finding it was incumbent upon it to raise the matter with Mr Brar at the hearing. It did not do so expressly.
Ground 6 claims that in its s.359A letter and at the hearing the Tribunal displayed apprehended bias by pre-judging the issue. The s.359A letter indicated that the Tribunal had not made up its mind about the information in it[50]. The Tribunal demonstrated pre-judgement at the hearing but that is already dealt with under Ground 1. It is unnecessary to deal further with that issue in these grounds.
[50] CB 178.4
Ground 7 complains about the Tribunal’s finding at [37][51] that Mr Brar had not worked at Dom’s and had paid money for the work reference. The Tribunal had already put the gist of this to Mr Brar in its s.359A letter, absent the conclusion that Mr Brar paid for the work reference. It did not at the hearing have to set out every detail of its possible final conclusions, and in any case this was clearly a matter where the Tribunal had sufficiently indicated to Mr Brar that everything he said was at issue, so there can be no breach of s.360 in that respect[52]. The suggestion that there was no evidence for the Tribunal’s conclusion is wrong: given the information that Dom’s had provided false work references to international students for money, and Mr Brar was an international student who had used a work reference from Dom’s, the Tribunal’s conclusion was an available inference. This ground fails.
Grounds 11-13 - Does the Court’s decision in Singh[53] support a contention that the Tribunal fell into error in relying upon the skills assessment obtained from Trades Recognition Australia (TRA)?
[51] CB 219
[52] SZBEL at [47]-[48]
[53] Singh v Minister for Immigration & Anor [2012] FMCA 145
In Singh, the applicant had obtained a successful skills assessment for the occupation of cook from TRA. His application for a 485 visa was refused upon the basis that his Skills Assessment Application submitted to TRA was false or misleading in a material particular.
I held in that case that TRA had not been validly specified as a relevant assessing authority under the Migration Regulations 1994 (Cth) (“the Migration Regulations”).
While Singh was not a cancellation case, it is still relevant because of the terms of the s.107 notice in this case. Further, the particulars of the alleged contraventions of ss.101(b) and 103 relate in the former case to information provided to TRA and in the latter case to presentation of a document from TRA.
The particular finding of the Tribunal in this case was that the applicant failed to comply with s.103 of the Migration Act in the way described in the s.107 notice.
The particularised failure to comply with s.103 of the Migration Act was in giving a bogus TRA skills assessment to an officer of the Department.
The statement by the Tribunal at [37][54] that the TRA skills assessment was a bogus document within the meaning of s.97(c) of the Migration Act is disputed. Mr Brar submits, on the basis of the decision in Singh, that TRA was not a relevant authority pursuant to regulation 880.221 and regulation 2.27B[55].
[54] CB 219
[55] which are both set out at CB 61 and 62
Section 101(b) provides that in filling out his or her application form, an applicant must do so in a way that no incorrect answers are given. The allegation of non-compliance in relation to the s.107 notice[56] is that the information provided to TRA in relation to work experience was false or misleading in a material particular.
[56] CB 63
At [31] the Tribunal stated that the non-compliance identified and particularised in the notice in relation to s.101 of the Migration Act was in falsely claiming in the application that he had been employed at Dom’s between 21 December 2006 and 28 December 2007. Mr Brar contends that this is not correct. The particulars at CB 62 and 63 are based upon incorrect information being provided to TRA in relation to the 900 hours work experience. Mr Brar contends that this allegation as particularised is incapable (irrespective of the status TRA as a relevant assessing authority) of being non-compliance with s.101 (b) in any event.
As noted above, the issue in relation to s.103 in the s.107 notice was an allegation as particularised that the applicant had presented the positive skills assessment from TRA to an officer of the department and that in giving the bogus TRA skills assessment to an officer of the Department, the applicant had breached s.103.
Section 103 relevantly provides that a non-citizen must not give a bogus document to an officer or to an authorised system. A bogus document includes a document which was obtained because of a false or misleading statement.
The s.107 notice was based upon the assertion that Mr Brar had to provide the Department with an assessment of his skills from a relevant authority and that TRA was the relevant authority. It is stated[57] that Mr Brar’s “eligibility to apply for the visa was conditional on the successful result from TRA.” This was however, incorrect at the time of the Tribunal decision.
[57] CB 61.7
For the reasons stated in Singh, at the time the s.107 notice was issued and at the time of the Tribunal’s decision TRA was not a relevant assessing authority in place for the relevant occupation. This was because no approval had been given by either of the relevant Ministers pursuant to regulation 2.26B (1A) of the Migration Regulations. I stated in Singh at [27] that TRA had to be approved in writing by the Education Minister or the Employment Minister as the relevant assessing authority for the relevant occupation.
At [29] in Singh, the Minister conceded that TRA had not been validly specified as the relevant authority for the occupation pursuant to regulation 2.26B (1) of the Migration Regulations at the time of the Tribunal’s decision. This was because no approval had been given by either of the relevant Ministers.
At [40] in Singh, I stated that TRA had now been specified for the purpose of regulation 2.26B by a further instrument dated 28 September 2011, which was expressed to apply to visa applications made prior to 1 July 2010.
In the present case, the date of the Tribunal decision was 7 March 2011, prior to the relevant instrument.
At [61] in Brar, the Full Federal Court stated that the s.107 notice must be read in light of the purpose of the statutory scheme which was to ensure that the visa holder had notice of the alleged non-compliance and an opportunity to dispute the allegations and to respond to them. While the principle issue was the finding of a fraudulently obtained work reference from Dom’s Restaurant, it was the provision of this work reference to TRA and the obtaining of the skills assessment from TRA and presentation of it to the Department which was the allegation of non-compliance for the purpose of s.103.
For all of the above reasons Mr Brar submits that there was an invalid s.107 notice or alternatively jurisdictional error in relation to the findings of breaches, consistently with the reasons dealt with by the Court in Singh.
The s.107 notice was based upon a representation that TRA was an assessing authority for the particular skilled occupation nominated by the applicant. TRA was not such a relevant assessing authority at the time and this is said to affect the validity of the s.107 notice. Had that representation not been made and the applicant had been advised that TRA was not a relevant assessing authority, quite different considerations would have applied in relation to the exercise of discretion.
The Minister submits that the claim that the s.107 notice[58] was invalid, or the Tribunal committed a jurisdictional error, because the TRA was not designated as a relevant assessing authority is unmeritorious. In this case, the Tribunal found that the TRA skills assessment was a bogus document within the meaning of s.97 because it had been obtained through the provision of false work references. Section 97(c) relevantly provides that a "bogus document" is a document that "was obtained because of a false or misleading statement, whether or not made knowingly". The central issue in this case was the accuracy, or otherwise, of the work reference letters from Dom’s. The s.107 notice gave adequate particulars of this, such that Mr Brar and his advisers would not have been in any misapprehension as to the occasion on which it was said that he failed to comply with s.103 by giving a bogus document to an officer when making his visa application[59].
[58] CB 59-70
[59] Minister for Immigration v Brar at [61]
The Minister notes that while the s.107 notice in light of Singh may be in error in stating[60] that “[y]our eligibility to apply for the visa was conditional on the successful result from Trades Recognition Australia (TRA)”, not every error in a s.107 notice will result in its invalidity[61]. Here any error was, in the Minister’s submission, minor and inconsequential having regard to the fact that the relevant allegation was that Mr Brar had put a “bogus document”, being the skills assessment obtained from TRA, to an officer in breach of s.103, and that this was clearly put in the s.107 notice[62]. The Minister submits that a document obtained from TRA because of the provision of false and misleading information to the TRA remains a “bogus document” under s.97 whether or not TRA was at the time validly designated as a relevant assessing authority under regulation 2.26B(1). Section 97 does not contain any statement or implication to the contrary. Accordingly, the Minister submits that it cannot be said that the s.107 notice was invalid, or that the Tribunal erred [37][63] in finding that the TRA skills assessment was a “bogus document”.
[60] CB 61.7
[61] Minister for Immigration v Brar at [56]-[61]
[62] at CB 63.6
[63] CB 219
Counsel for the applicant properly conceded that it is possible for a visa holder or a visa applicant to breach s.103 of the Migration Act by giving a bogus document even if it is not relevant to any applicable visa criteria. The Minister concedes that the decision in this case was made by the Tribunal during the period when there was no lawful instrument specifying TRA as an assessing authority[64].
[64] ie before the rectifying instrument referred to in Singh was made
The Tribunal stated at [45] of its reasons[65]:
The applicant has suggested that he could have met the requirement by drawing upon his claimed Indian work experience, but instead chose to acquire Australian work experience, despite not being paid and having to travel very substantial distances. He has provided no evidence to support that claim, about which the Tribunal has serious doubts (vide par.36 above). The Tribunal is satisfied that the positive TRA assessment would not have been issued had the work experience claim been known to be false, and that, without that accreditation, the applicant would not have been granted the visa.
[65] CB 220
As a matter of fact, the Tribunal’s statement is almost certainly correct. In my view, it does not matter that, at the time of the Tribunal’s decision, TRA was not lawfully specified as an assessing authority and that, at that time, the applicable visa criteria did not include the TRA assessment[66]. The important thing is that both Mr Brar and the Minister’s Department proceeded on the basis that a TRA assessment was necessary and Mr Brar allegedly provided false or misleading information to TRA in order to obtain that assessment. The allegations in the s.107 notice were thought to be material at the time the notice was issued and the notice is not invalid simply because they were included. It would, hypothetically, have been open to Mr Brar to respond by pointing out that the TRA assessment was irrelevant because TRA had not been lawfully specified as an assessing authority.
[66] See Singh at [65]-[66]
Further, while the Tribunal was probably in error in proceeding on the basis that the TRA assessment was a necessary element in Mr Brar obtaining his visa at the time it was obtained, that was, in my view, an error within jurisdiction. This is because, consistently with the applicant’s concession referred to at [69] above[67], it would have been open to the Tribunal to treat that assessment as a “bogus document” even if the Tribunal had concluded that the assessment was not relevant to an applicable visa criterion. I note that this conclusion is consistent with the decision of FM Riley in Batra v Minister for Immigration & Anor[68].
[67] cf Singh at [67]-[68]
[68] [2012] FMCA 544 at [51] and [58]
It is not necessary in the circumstances to consider whether, in the light of my decision in Singh, the visa purportedly granted to Mr Brar was validly granted, whether the Tribunal had jurisdiction to review a purported cancellation of a visa that may not have been validly granted and whether the rectifying instruments identified in Singh at [69] could have the effect of validating an otherwise invalid decision to grant or cancel the visa.
Conclusion
In view of my finding on apprehended bias, I will order that Mr Brar receive relief in the form of the constitutional writs of certiorari and mandamus.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 31 July 2012
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