Brar v MIAC
[2011] FMCA 435
•28 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRAR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 435 |
| MIGRATION – Review of Migration Review Tribunal decision – cancellation of a sponsored work visa – applicant allegedly supplying a bogus document in support of his visa application – notice of possible cancellation of the visa incorrectly asserting that the applicant had provided the bogus document to an officer of the Department when in fact it had been provided online – Tribunal inviting comment on information that was in reality a supposition or inference based upon other information – jurisdictional error established. |
| Migration Act 1958 (Cth), ss.5, 97, 101, 103, 107, 109, 359A, 360 Migration Regulations 1994 (Cth) |
| Minister for Immigration v Chamnam You [2008] FCA 241 Tien v Minister for Immigration [1998] FCA 1552; (1998) 89 FCR 80 Zhao v Minister for Immigration [2000] FCA 1235 Zhou v Minister for Immigration [2004] FCA 1078; (2004) 139 FCR 60 Zhong v Minister for Immigration (2008) 171 FCR 444 |
| 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: | 8 June 2011 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr J R Young |
| Solicitors for the Applicant: | Shamser Thapa & Associates |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The Court declares that the notice of incorrect application issued pursuant to s.107 of the Migration Act 1958 (Cth) to the applicant contained a false particular of possible non compliance in that the notice wrongly asserted that the applicant had provided a bogus document to an “officer” as defined in s.5 of the Migration Act.
The Court declares that the notice issued pursuant to s.107 did not enliven the power purportedly exercised under s.109 of the Migration Act 1958 (Cth) to cancel the applicant’s visa.
The first respondent is restrained from relying upon the decision of the delegate made on 12 October 2010 to cancel the applicant’s visa.
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.
| 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 is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). The decision was made on 7 March 2011. The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s (Mr Brar) subclass 886 (Skilled- Sponsored) visa.
The following statement of background facts is derived from the submissions of the parties.
Mr Brar is a citizen of India (court book “CB” 2). He applied for the visa on 24 May 2008: CB 1-58. He was granted the visa on 31 March 2009: CB 59.4. 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): CB 59-70. The delegate cancelled the visa pursuant to s.109 of the Migration Act on 12 October 2010: CB 148-162. Mr Brar applied to the Tribunal for review on 19 October 2010: CB 163-170. On 19 November 2010 the Tribunal wrote to Mr Brar pursuant to s.359A of the Migration Act: CB 178-181. The Tribunal held a hearing on 7 March 2011 (CB 203-205) which Mr Brar attended. The Tribunal made its decision the same day.
The visa was cancelled by the delegate (CB 148-152) upon the basis of alleged non-compliance with ss.101(b) and 103 of the Migration Act. 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 (“Dom’s”) in Thomastown, Melbourne from December 2006 to December 2007 (CB 53-56) in his successful application to Trades Recognition Australia (TRA) for assessment of his skills as a cook (CB 39-40). The delegate preferred 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: CB 155.6-157.2, 158.2. The delegate concluded that Mr Brar had obtained a favourable TRA assessment by false statement about his employment with Dom’s and then forwarded this bogus document to the Department.
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 preferred information 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 (see generally CB 218-219). As a result, the cancellation power in s.109 of the Migration Act was purportedly enlivened, and the Tribunal determined in its discretion to affirm the cancellation of the visa: CB 219-221.
The evidence and submissions
I have before me as evidence the court book filed on 9 May 2011 and a transcript of the hearing conducted by the Tribunal on 7 March 2011. The transcript was furnished at the trial of this matter on 8 June 2011 but was not at that time verified (although annexed to an affidavit by the solicitor for the applicant). The transcript was verified by the affidavit of Renee Quinn, the managing director of APT transcriptions, made on 4 July 2011 and filed on 21 July 2011. For reasons which will become apparent it was not necessary for me to rely upon the transcript.
These proceedings began with a show cause application filed on 28 March 2011. Mr Brar now relies upon an amended application filed on 18 May 2011. The grounds in that application are:
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.425 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.425 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.
Mr Brar contends that he was not given a “meaningful” opportunity to respond to the adverse information put to him pursuant to s.359A of the Migration Act. He further contends there was a failure to provide clear particulars in relation to the actual information being considered by the Tribunal. Mr Brar further contends that the s.359A letter and the manner in which the Tribunal conducted its hearing establishes a reasonable apprehension of bias. Further, Mr Brar contends that a notice issued pursuant to s.107 of the Migration Act was incorrect and that it was not open to the Tribunal to correct it. Finally, Mr Brar contends that the Tribunal ignored its own factual findings or sought to deny findings of fact it had made in reaching its conclusions.
The Minister contends that the Tribunal was entitled to draw adverse inferences from the information available to it and that in doing so, it did not give rise to an apprehension of bias. He contends that the Tribunal’s reasons did not disclose any application by the Tribunal of an inappropriate onus but simply a fair statement of what the real issues were. The Minister contends that the s.359A letter made the particulars of the information provided very clear. The Minister contends that there is no error by the Tribunal in including in a s.359A letter inferences drawn from information. The Minister notes in relation to ground 4 that the issue of whether the s.107 notice gave proper particulars of possible non compliance so as to enliven the Tribunal’s jurisdiction is a matter for the Court[1]. The Minister contends that there was no breach of s.360 of the Migration Act[2] as the content of the s.359A letter was discussed with Mr Brar at the hearing. The Minister further denies that any apprehension of bias by pre-judgement has been established and joins issue with the remaining grounds in the amended application.
[1] Zhong v Minister for Immigration (2008) 171 FCR 444 per Lander J at [78]-[82]
[2] The amended application refers to s.425, but it should have referred to s.360
Consideration
Mr Brar asserts that the Tribunal fell into jurisdictional error by treating errors in the s.107 notice in relation to particulars as being capable of being waived by it on the basis of a general purposive approach to incorrect particulars in the notice.
Section 107 provides:
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non-compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non-compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance--shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non-compliance:
(A) give reasons for the non-compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response--when that notice is given; or
(ii) if the holder gives the Minister a written response within that period--when the response is given; or
(iii) otherwise--at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder's obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister's decision on whether there was non-compliance by the holder--to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa--the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise--14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
The delegate did not advert to any error in the notice issued. The Tribunal did advert to an error and dealt with it in the following way at [38] (CB 219):
The Tribunal acknowledges that the s.107 notice inaccurately described the applicant’s breach of s.103 as involving the provision of a bogus document “to an officer of the Department”, whereas it was in fact presented to an authorised system, having been lodged online. However, the Tribunal does not consider that this minor, technical imprecision on the part of the delegate prevented the applicant from knowing or answering the case against him, or that the s.107 notice should therefore be declared invalid. Whilst the courts have properly and understandably stressed the need for breach allegations to be soundly particularised in s.107 notices, their approach in gauging compliance with that precept has always been purposive rather than prescriptive. The Tribunal emulates that approach in dealing with the present matter.
The Tribunal found at [30] (CB 218) that the Minister’s delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.
The issue of jurisdiction in relation to a s.107 notice was considered by Lander J in Zhong v Minister for Immigration at [78]-[82] where his Honour said:
The appellant also argued that the notice failed to particularise the visa holder’s possible non-compliance as required by s107(1)(a).
If the Minister or the Minister’s delegate has reached the statutory state of mind to which I have referred, then any notice which is given must in all other respects comply with s 107. That means that the notice must give particulars of the possible non-compliance required in s 107(1)(a) and include in the notice all of the other matters referred to in the paragraphs to s 107(1).
In my opinion, this notice did not particularise the possible non-compliance. It was not sufficient to state that the appellant might have breached s 101 of the Act. More was necessary. If both paragraphs of s 101 were to be relied on, then the notice needed to give particulars of the facts and circumstances which gave rise to the possible breach of each of the paragraphs. It is not enough to generically claim that the visa holder has breached a section of the Act without giving particulars of the facts and circumstances which are said to give rise to the possible breach of the particular section.
If I am wrong about s 107 never being engaged and the delegate was entitled to give the notice which was given, the notice in my opinion failed to comply with s 107 in that it did not particularise the possible non-compliance. Because particulars of the non-compliance were not given, it meant that the appellant could not give a written response to the notice disputing there was non-compliance and showing there was compliance as provided for in s 107(1)(b). The giving of a notice which complies with s 107 of the Act is a statutory precondition to the exercise of the Minister’s or delegate’s power to cancel the visa: cf. Tien v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1552; (1998) 89 FCR 80; Zhou v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1078; (2004) 139 FCR 60.
In my opinion, for that second reason, the notice given did not comply with s 107. In my opinion, the decision to cancel the visa must be quashed.
In the present case, the notice given purportedly pursuant to s.107 is reproduced at CB 59-65. Relevantly, the notice states (at CB 63):
Section 103 – Evidence of non-compliance
The department finds that the work reference letter from Dom’s Family Bistro & Pizza was fraudulently obtained. You then provided the fraudulent work reference to TRA for your pre-migration skills assessment. The skills assessment was obtained through false and misleading statements and therefore is considered to be a bogus document within the meaning of section 97 of the Act.
You then presented the positive skills assessment from TRA to an officer of the department who was performing a function under the Act (that function being assessing the client’s visa application).
In giving the bogus TRA skills assessment, to an officer of the department, you have failed to comply with section 103. (emphasis added)
As was acknowledged by the Tribunal the assertion that Mr Brar had given incorrect information to an officer of the Department was incorrect because the information had been provided to an online system.
Section 103 of the Migration Act provides:
A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented or provided.
The words “officer”, “authorised system” and “Tribunal” are defined terms in s.5 of the Migration Act. Although I have no evidence on the point, I proceed on the basis that the online system used by Mr Brar was authorised in writing by the Minister or the Secretary for the purposes of s.103. I also proceed on the basis that the TRA assessment was capable of being a “bogus document” as defined in s.97 if it was obtained because of a false or misleading statement.
An “officer” is defined to mean:
(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or
(b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or
(c) a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or
(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or
(e) a member of the police force of an external Territory; or
(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or
(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.
An “authorised system” is defined as follows:
when used in a provision of this Act, means an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision.
It is plain, in my view, that there is a significant difference between an “officer” as defined and an “authorised system” as defined. That difference is not less important than the difference between the Minister and a tribunal referred to in s.103. The prohibition in s.103 relates to the provision of a bogus document to, relevantly, either an “officer” or an “authorised system”. Hypothetically, a bogus document could be provided to both. I disagree with the Tribunal that the error in this case was “minor technical imprecision” on the part of the delegate. The Tribunal appears to have proceeded on the basis that the issue is whether any unfairness flowed from the error. That approach draws support from the decision of the Full Federal Court in Zhao v Minister for Immigration [2000] FCA 1235 at [22]-[30]. However at [31] the Full Court cautioned:
The notification procedure and the protection it affords would be illusory if it were open to the Minister to make a decision cancelling a visa on some ground other than that set out in the notification. However that did not happen in this case. The decision to cancel the visa as reflected in the decision record that Mr Kane issued on 8 October 1999 was based upon the grounds set out in the second dot point contained in the letter of 23 June which relied upon clause 457.223(7)(b) in the Second Schedule. The decision to cancel was therefore taken upon the basis of one of the grounds of which Mr Zhao had been notified.
In my view, and consistently with the decision of the Federal Court in Zhong, there is an issue whether Mr Brar was given proper particulars of the non compliance alleged. The notice is a trigger for the imposition of a significant detriment, namely the cancellation of a visa. If a notice is issued which does not comply with the requirements of s.107 it is not a valid notice. If notice is given which complies with the requirements of s.107 but which contains particulars of a non compliance ground which are materially false or misleading, the notice, while it can be lawfully issued, cannot, in my view, support a visa cancellation based on the false or misleading particulars. However, there is nothing to prevent a s.107 notice asserting more than one ground of non compliance, or asserting non compliance based on alternative particulars which, if accurate, could enliven the cancellation power.
I find that the notice provided to Mr Brar was false in a material particular in that it asserted he had given a bogus document to an “officer” as defined when he had not done so. The notice was validly issued as the requirements of s.107 were met and the particulars were sufficiently clear for Mr Brar to respond but because the ground of non compliance was incorrectly framed, it could not support the cancellation decision of the delegate. It was not open to the Tribunal to gloss over the error and effectively re-frame the breach asserted against Mr Brar. While the Tribunal can no doubt review purported as well as valid decisions, the question of whether a notice issued purportedly under s.107 complies with that section is a jurisdictional question for the Court, as is conceded by the Minister. Further, the Tribunal cannot affirm a cancellation decision on a ground other than that set out in the notice. Neither could the delegate have done so. If Mr Brar had pointed out the error to the delegate, a fresh notice would have been required as only one ground of non compliance was alleged against him. He pointed out the error to the Tribunal which lacked jurisdiction to correct it. In affirming the purported cancellation decision the Tribunal committed a jurisdictional error and Mr Brar is entitled to relief in the form of the constitutional writ of certiorari and an injunction. I will also make declarations.
If I am wrong in the foregoing analysis, I also find that the Tribunal breached s.359A of the Migration Act which provides:
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies--by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
In the present case, the Tribunal sent a letter to Mr Brar dated 19 November 2010 which is reproduced at CB 178-180. The letter is headed “Invitation to Comment on or Respond to Information and to Provide Information – Mr Manjinder Singh Brar”. The letter is in two parts: the first part is an invitation to comment on or respond to information and is purportedly issued pursuant to s.359A. The latter part of the letter was an invitation to provide information pursuant to s.359(2) of the Migration Act and is not presently relevant.
The invitation to comment on or to respond to information pursuant to s.359A of the Migration Act provided the following particulars of information (CB 178):
You are invited to comment on the particulars of information that would, subject to any comments you may offer, be the reason for part of the reason for affirming the decision under review, namely:
(a) that you were not employed as a cook or in any capacity from 21 December 2006 to 28 December 2007 or at any other time at Dom’s Family Bistro and Pizza (‘Dom’s’), contrary to the claims made in a purported work reference submitted in support of your application for a skills assessment by Trades Recognition Australia (TRA);
(b)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 and $400 for their signatures on each such document. Hundreds of false work references were found at the residence of this individual, who confirmed that no international students had worked at these businesses;
(c) that the abovementioned purported work reference procured at your request by the intermediary and signed by the owner of Dom’s, which falsely asserted that you had completed over 900 hours of supervised relevant work experience at that establishment, was knowingly submitted by your to Trades Recognition Australia (TRA), from which you duly received a favourable skills assessment;
(d) that knowing that the favourable TRA skills assessment had been obtained fraudulently on the basis of a non-genuine work reference and non-existent work experience, you submitted the TRA assessment, a bogus document within the meaning of s.97(c) of the Act, to the Department in support of your subclass 886 visa application.
The obligation on the Tribunal under s.359A(1)(a) was to give clear particulars of any information that the Tribunal considered would be the reason, or part of the reason for affirming the decision that was under review. The Tribunal was also required to ensure, as far as is reasonably practicable, that Mr Brar understood why the information is relevant to the review and the consequences of its being relied upon in affirming the decision. The vice in the present case is that the only information conveyed in the letter is that contained in particular (b). The purported information in particulars (a), (c) and (d) was not information at all but, rather, the Tribunal’s own thought processes based on inferences derived from the information then available to the Tribunal. The only relevantly adverse information the Tribunal had at the time the letter was issued was the information referred to in particular (b). The Tribunal had no information that Mr Brar was a member of the class of persons provided with false work references by the owner of Dom’s. Neither did the Tribunal have any information that Mr Brar had not worked at Dom’s as he asserted apart from the general assertion of the informant that no international students had worked at Dom’s. The Tribunal simply reasoned that because the owner of Dom’s had been involved in the large scale fabrication of work references, and that an informant had said that no international students had worked at Dom’s, then Mr Brar’s work references were probably also fabricated and that he had given a bogus document in support of his visa application.
In my view, the letter provided to Mr Brar by the Tribunal created an entirely false impression that the Tribunal had information directly linking him to the fraud of others. Far from providing clear particulars of the information held by the Tribunal the letter provided false and misleading particulars. In order to comply with s.359A, the Tribunal needed to provide the particulars of the information available to it, which were set out in particular (b) and then explain why that information was significant, which would presumably have involved discussing the inferences available that Mr Brar had been a party to the fraud and that he had made a false statement to the TRA, rendering the TRA assessment bogus: that is, the reasoning set out in particulars (a), (c) and (d) of the letter. In presenting the letter in the terms it did, the Tribunal conflated its obligation pursuant to s.359A(1)(a) with its obligation pursuant to s.359A(1)(b). This was not just a technical error. The letter was seriously misleading and in conflating its obligations, the Tribunal committed a further jurisdictional error.
I have considered the possibility that the Tribunal, by including particulars (a), (c) and (d) in the letter, was not putting its own views to Mr Brar but was, rather, reciting what had already been found by the delegate. I have discounted that possibility for several reasons. First, it would be circular to the point of absurdity for the Tribunal to put to an applicant the reasons for the decision under review as information that might be a reason for affirming the decision. Obviously the Tribunal, on review, must consider the matter afresh. Secondly, as the Tribunal would have been well aware, s.359A(4)(b) excludes from the purview of s.359A(1) information that the applicant gave to the Tribunal for the purpose of the application for review. That exclusion includes the delegate’s decision subject to review, at least where a copy is given to the Tribunal by the applicant: Minister for Immigration v Chamnam You [2008] FCA 241. Here, the applicant provided a copy of the delegate’s decision with his review application (CB 169).
It is unnecessary to deal with the remaining grounds advanced in the amended application, other than to say that because the Tribunal presented its own opinions as factual information in the s.359A letter, an appearance of pre-judgement arose, which would have required close examination of the transcript of the Tribunal hearing to determine whether the appearance of pre-judgement could be overcome. It appears that by the time the Tribunal made its decision, it understood at [35] (CB 218) the difference between the information available to it, and the inferences to be derived from that information. However, the Tribunal was highly critical of Mr Brar in its conclusions and appears to have decided that an example should be made of him. There is nothing wrong in the Tribunal making a robust decision but the Tribunal should be cautious not to permit a justifiable concern over maintenance of the integrity of the visa application process overwhelm the Tribunal’s duty to observe procedural fairness in its review process.
I will hear the parties as to costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 28 July 2011
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