Brar v Minister for Immigration

[2016] FCCA 1168

FEDERAL CIRCUIT COURT OF AUSTRALIA

BRAR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1168

Catchwords:
MIGRATION – Application to review decision of Migration Review Tribunal (now the Administrative Appeals Tribunal) – whether Tribunal erred in considering whether to cancel visa on the basis of non-compliance with s.103 of the Migration Act 1958 (Cth) – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.97, 101, 103, 107, 108, 109, 359A

Migration Regulations 1994 (Cth), reg.2.41

Cases cited:
Brar v Minister for Immigration and Citizenship & Anor [2011] FMCA 435
Brar v Minister for Immigration and Citizenship & Anor [2012] FMCA 519
Minister for Immigration and Citizenship v Brar & Anor (2012) 201 FCR 240; [2012] FCAFC 30
Minister for Immigration and Citizenship v Khadgi & Anor (2010) 190 FCR 248; [2010] FCAFC 145
Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural Affairs v McDade (2001) 109 FCR 137; [2001] FCA 457
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Saleem v Migration Review Tribunal [2004] FCA 234
Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235

Applicant: MANJINDER SINGH BRAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2502 of 2013

Judgment of: Judge Barnes

Hearing date: 20 July 2015

Delivered at: Sydney

Delivered on: 17 May 2016

REPRESENTATION

Counsel for the Applicant: Mr JR Young

Solicitors for the Applicant: G&S Law Group

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2502 of 2013

MANJINDER SINGH BRAR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Migration Review Tribunal (now the Administrative Appeals Tribunal) dated 10 September 2013 affirming a decision of a delegate of the First Respondent to cancel the Applicant’s Subclass 886 (skilled-sponsored) visa. 

2. The Applicant is a citizen of India who came to Australia in 2006.  He applied for a Skilled (Residence) (Class VB) visa on 24 May 2008.  In support of that application he provided the Department of Immigration with various documents, including a positive skills assessment for the occupation of “cook” issued by Trades Recognition Australia (TRA).  The Applicant was granted the visa on 31 March 2009. 

3. Relevantly, the evidence provided to TRA as part of the application to obtain a skills assessment included a work reference under the name of Dom’s Family Bistro and Pizza (Dom’s) which stated that Mr Brar had undertaken more than 900 hours of unpaid work as a cook at Dom’s. 

4. Following a departmental investigation (into the provision of false work reference letters) the Department issued the Applicant with a Notice of Intention to Consider Cancellation (NOICC) on 30 June 2010.  The Applicant responded on 19 July 2010. 

5. An amended NOICC was sent to the Applicant’s representative on 13 August 2010 and a further amended third notice was sent via email on 20 August 2010 with an accompanying letter referring to incorrect references in the first two notices, advising that those notices were no longer valid and that the NOICC dated 20 August 2010 was issued in replacement.  The Applicant was given the opportunity, through his adviser, to make a further submission in response.  According to the delegate, the Applicant’s adviser responded that his client had nothing further to add to the response of 19 July 2010.

6. On 12 October 2010 a delegate of the First Respondent cancelled Mr Brar’s visa.  He sought review and on 7 March 2011 the Tribunal affirmed the delegate’s decision.  He sought judicial review.  On 28 July 2011 Driver FM (as he then was) found, inter alia, that the NOICC did not enliven the cancellation power in s.109 of the Migration Act 1958 (Cth) (the Act) (Brar v Minister for Immigration and Citizenship [2011] FMCA 435). An appeal was allowed by the Full Court of the Federal Court on 21 March 2012 (see Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240; [2012] FCAFC 30). The proceedings were remitted to the Federal Magistrates Court for determination of other grounds of review. On 31 July 2012 Driver FM remitted the matter to the Tribunal for redetermination (see Brar v Minister for Immigration and Citizenship & Anor [2012] FMCA 519). It is that re-determination that is the subject of these proceedings.

7. I note that the matter proceeded on the basis that the relevant NOICC was the NOICC of 30 June 2010. The Tribunal, while aware of the second and third notices, observed that the earlier proceedings before the Federal Magistrates Court and the Federal Court in relation to the first Tribunal decision had been conducted by both the Applicant and the Department on the basis that the relevant notice for the purposes of s.107 of the Migration Act 1958 (Cth) (the Act) was the NOICC issued on 30 June 2010. Given this, and the rejection by the Full Court of the Applicant’s submissions in relation to the alleged invalidity of the s.107 notice of 30 June 2010, the Tribunal proceeded on the basis that the relevant s.107 notice was the notice issued on 30 June 2010. No issue has been taken with that approach in these proceedings.

8. In the NOICC dated 30 June 2010 the view was expressed that Mr Brar had not complied with ss.101(b) and 103 of the Migration Act. In essence, it was asserted that it was suspected that he had provided incorrect information to TRA in relation to his claimed 900 hours of work experience, consisting of a work experience reference letter on Dom’s letterhead which had also been submitted to the Department in connection with the visa application.

9. Section 103 of the Act was set out in the NOICC. It provides that:

   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. 

10. At the relevant time, s.97 of the Migration Act (which was also set out in the NOICC) contained the definition of bogus document. It was as follows:

    In relation to a person, means a document that the Minister reasonably suspects is a document that: 

    (a) purports to have been, but was not, issued in respect of the person; or

    (b) is counterfeit or has been altered by a person who does not have authority to do so; or

    (c) was obtained because of a false or misleading statement, whether or not made knowingly.

11. Under the heading “Section 103 – Evidence of Non-Compliance” the notice dated 30 June 2010 stated: 

    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.

12. The NOICC gave Mr Brar the opportunity to “comment on the possible non-compliance and to give a written response why [his] visa should not be cancelled”. 

13. Mr Brar provided a response dated 19 July 2010.  His adviser claimed that Mr Brar had no knowledge as to the provision of non-genuine workplace references from Dom’s.  The Applicant claimed that he did in fact work in Dom’s for a period of voluntary work experience (generally three days a week) between December 2006 and December 2007 before going on to work in another restaurant (the Café Greco).  He provided other supporting documentation.

14. On 12 October 2010 the Department notified the Applicant of the cancellation of his visa under s.109 of the Act on the basis that he had not complied with ss.101(b) and 103 and the delegate had decided to exercise her discretion to cancel the visa.

15. As indicated, the Applicant sought review by the Tribunal.  The first Tribunal decision is not in the Courtbook.  Nor is it in evidence before the court, but the history (as set out above) is described in the Tribunal decision of 10 September 2013 and also appears from material in the present Courtbook, the decision of the Full Court of the Federal Court in Brar as well as the subsequent Federal Magistrates Court decision in Brar. 

16. After the matter was remitted to the Tribunal in 2012, the Applicant attended a Tribunal hearing on 4 April 2013.  He and three other witnesses gave evidence.  The only evidence before the court of what occurred in the hearing is the Tribunal’s account in its reasons for decision. 

17. After the hearing, the Tribunal sought information from the current owner of Dom’s.  The Tribunal also issued a summons to the Department to produce documents or records that led to the delegate’s finding that the Applicant’s work reference may have been fraudulently issued to him or that confirmed that his work reference was found in possession of a named person (referred to for present purposes as “Mr A”) or that his work reference was similar in content and format to any other false work references found in the possession of Mr A.  The Department provided various documents.  The Tribunal also confirmed with the Department that the copy of the “Dom’s” work reference the Applicant provided to the Department was identical in content (although different in format) to a work reference from Dom’s which contained the Applicant’s name and was found in the possession of Mr A. That reference was submitted in evidence in a prosecution of Mr A arising out of the earlier departmental investigation in relation to his admitted involvement in the production and sale of fraudulent work reference letters used in support of visa skills and assessment applications. These matters were subsequently put to the Applicant in a s.359A letter.

The Tribunal Decision

1. The Tribunal detailed the Applicant’s claims and the evidence before it, including about the fraudulent work references, investigations and the Applicant’s admissions. It referred generally to information and submissions provided by the Applicant at various times and his response of 14 August 2013 to its detailed s.359A letter, including his statutory declaration and a supporting letter from his former migration agent. It set out the Applicant’s claims that he did undertake work experience at Dom’s and had not provided or been involved in the provision of a false work experience certificate.

2. The Tribunal found first that it was satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the NOICC issued under s.107 complied with the statutory requirements. This aspect of its reasoning is not the subject of the challenge in the present proceedings.

3. Under the heading “Non compliance” the Tribunal stated:

   51. The Tribunal must first decide whether there was non-compliance by the applicant in the way described in the s.107 notice.  The non-compliance identified and particularised in that notice can be summarised as non-compliance with:

   a. s.101 of the Act, by providing incorrect information in his application that he had been employed at Dom’s between 21 December 2006 and 28 December 2007;  and

   b. s.103 of the Act, by providing to an officer of the Department who was performing a function under the Act a bogus document, being a positive TRA skills assessment that was obtained because of false or misleading statements.

   52. In assessing the alleged non-compliance, the central issue in this matter is whether the applicant genuinely performed in excess of 900 hours of volunteer work as a cook at Dom’s as claimed by the applicant and recorded in his relevant work reference from Dom’s.

4. The Tribunal acknowledged that there were a number of positive aspects to the Applicant’s evidence as to his work experience at Dom’s between December 2006 and 2007.  It had regard to the fact that he had prior cooking qualifications and employment experience from India, had completed relevant cooking qualifications in Australia and had worked as a chef at Café Greco and then at another restaurant from March 2008 onwards.  The Tribunal accepted the evidence of a former manager at Café Greco that he had carried out a reference check with the owner of Dom’s prior to recommending Mr Brar for employment at Café Greco in March 2008. 

5. The Tribunal referred to the inquiries it had made of the current owner of Dom’s as to the date he took ownership of the restaurant, the days the restaurant was open at that time and whether he retained any staff from the time of the previous owner. It recorded that the current owner had advised that he did not take over Dom’s until October 2012, that he did not know the name of the previous owner, and that he understood that the place had been closed for about a year before he took over. The Tribunal found that this evidence was of no assistance one way or the other as to whether, after receiving a s.107 notice the Applicant went to Dom’s in July 2010 as he claimed. On the other hand, it recognised that this evidence was of potential assistance to the Applicant’s case in that the restaurant owner confirmed (consistent with Mr Brar’s evidence) that he did not retain any staff from the time of the previous ownership of Dom’s.

6. The Tribunal had regard to the Applicant’s submissions about the difficulty of providing further evidence as to his work history at Dom’s given the passage of time and his status as a volunteer worker.  It also took into account his oral evidence about his familiarity with Dom’s as well as that of his witnesses.

7. However the Tribunal continued:

   56. Nevertheless, for the reasons that follow, the Tribunal reasonably suspects that the applicant’s skills assessment is a bogus document, on the basis that the Tribunal reasonably suspects that the applicant obtained this skills assessment because of false statements regarding his employment at Dom’s, including his work reference. 

8. The Tribunal discussed in some detail the departmental investigation of Mr A.  It recorded that, as set out in the decision of the delegate, the Department had evidence from Mr A that the work reference letters from Dom’s were false, that the owners of that business had been paid for each work reference falsely created and that no international student had completed work experience at Dom’s. 

9. The Tribunal referred to documents provided to it in response to the summons for evidence issued to the Department, particulars of which had been put to the Applicant under s.359A of the Act. This evidence was said to include an Agreed Statement of Facts filed in the prosecution of Mr A in relation to the creation of false documents, including false work references, and the making of a false statutory declaration.

10. The Tribunal had regard to the fact that the Agreed Statement of Facts contained information which included the fact that the charges against Mr A arose out of a detailed departmental investigation commencing in mid-2009 which led to seizure of certain computer equipment of Mr A containing false documents from a number of businesses; that the Department had obtained statements from several employers nominated in the seized work references who stated that none of the persons nominated had completed 900 hours of work experience at their businesses and that many of those persons had not attended the businesses at all or had only attended a few days.  Some of the employers confirmed that they had been paid by Mr A.  In addition, the Department had obtained statements from some of the visa applicants who had confirmed that they had never worked at their nominated business or that they did so for a short time only, that they did not complete 900 hours of work experience and that they had paid Mr A for the false documents. 

11. The Tribunal also referred to a taped record of an interview conducted by departmental investigators with Mr A in which Mr A made admissions in relation to his involvement in producing hundreds of fraudulent work references and other documents which were sold to visa applicants and agents to be used by international students, including creating false work reference letters submitted to TRA.  It had regard to the fact that Mr A had indicated that while he had advised visa applicants to attend the nominated workplace and obtain some level of experience, he did not monitor their activities and was aware that people did not actually attend the location detailed on the work reference letter.  Mr A also admitted that he had offered money to relevant employers to agree to verify work references and that he had then produced the false work references for signature by the owners. 

12. Mr A was said to have acknowledged the assistance of several migration agents (including the Applicant’s former migration agent) and to have indicated that from his recollection and observations during visits to the businesses, none of the visa applicants in question had completed the full 900 hours with any employer mentioned in his statement (including, relevantly, Dom’s).  Mr A was said to have included the owner of Dom’s at the time of Mr Brar’s claimed work experience as an employer who had participated in his fraud operation. 

13. The Tribunal also had regard to a letter from the Applicant’s former migration agent of 29 July 2013, in which the agent claimed the Applicant had provided all the documents submitted as part of his skills assessment application.  It found that this was not sufficient to outweigh the Tribunal’s credibility concerns in this matter and the other evidence before it. 

14. The Tribunal continued:

    62. Additionally, as noted above, as part of the Department’s investigation a search warrant was executed on Mr [A’s] premises which uncovered a large body of falsified work references and associated documents used as part of his operation.  The Tribunal has been advised by the Department that its investigators located a copy of a work reference from Dom’s in the applicant’s name which was in Mr [A’s] possession.  This work reference was subsequently submitted in evidence in Mr [A’s] court case.  In response to a further request from the Tribunal for clarification, the Department subsequently confirmed that this work reference was identical in content (although different in format) to the work reference which the applicant provided to the Department in the present matter.  As such, contrary to the submissions of the applicant’s agent that there is no direct evidence linking the applicant to Mr [A] or his operations, the Tribunal considers that this evidence does provide a direct link between the applicant and the activities of Mr [A].  Whilst the Tribunal acknowledges the applicant’s denial of any knowledge or association with Mr [A], this has not been sufficient to outweigh the Tribunal’s credibility concerns in this matter and other evidence before the Tribunal.

15. In addition, the Tribunal had regard to the fact that the Department had made unsuccessful attempts to verify the Applicant’s work reference, as explained in the delegate’s decision.  It recorded that information on the departmental file showed that, despite repeated attempts to contact the relevant owner of Dom’s, the owner had not returned the Department’s calls and had appeared reluctant to contact the Department to verify the relevant work reference letters.  The Tribunal had difficulty accepting as plausible that the previous owner of Dom’s would provide a detailed work reference stating that the Applicant had worked on a volunteer basis for approximately 900 hours over a 12 month period, but would then be so uncooperative in verifying to the Department that the Applicant’s employment claims were genuine.

1. The Tribunal had additional concerns with the Applicant’s credibility arising from his oral evidence at the 2013 hearing.  It acknowledged that the hearing had been held more than five and a half years after the time the Applicant had “finished working at Dom’s” and that the Applicant was familiar with a number of details relating to Dom’s, such as its location, layout, and the surrounding area.  However the Tribunal treated this evidence with “some caution”, given that Mr A had given evidence to the Department that he encouraged students to familiarise themselves with the relevant business premises.  Furthermore, it found that when probed for further details, the Applicant’s evidence had at times been “evasive and/or lacking in believability”.  For example, the Tribunal found that the Applicant’s evidence in relation to Dom’s opening hours and days (which it set out) was evasive. 

2. In addition, the Tribunal had difficulty accepting as believable the Applicant’s explanation as to how he obtained his position at Dom’s.   He had claimed that he happened to have his resume with him at a time when, while visiting a friend in Thomastown, he passed Dom’s and decided to stop in and inquire about a position.  The Tribunal had regard to the fact that Dom’s was located a considerable distance from the Applicant’s then residence; that it was in a largely industrial area; that the Applicant had confirmed he did not distribute his resume to any other restaurants in the area or in other comparable or nearby areas; and that while he referred to distributing his resume in Lygon Street and Prahran, these places were both a considerable distance from Dom’s location in Thomastown.  The Tribunal also noted that while at the hearing the Applicant had indicated he would provide contact details of his friend who lived in Thomastown, he had not done so. 

3. The Tribunal found that the Applicant’s former flatmate (who had given evidence of sharing a car with the Applicant and sometimes transporting the Applicant to and from his work at Dom’s) had been generally vague when pressed for specifics.  While the Tribunal appreciated that there had been a significant passage of time since the relevant events, it found that the evidence of this witness did not outweigh its significant concerns with the Applicant’s credibility.

4. The Tribunal accepted that, as attested to by the former manager and owner of Café Greco, the Applicant had commenced employment at Café Greco in March 2008 and that the then manager had carried out a referee check with the then owner of Dom’s.  However it found that the evidence relating to the document fraud perpetuated by Mr A made it clear that business owners involved in the fraud were required to verify employment claims when such verification was sought.  It was of the view that the owner of Dom’s might have felt obligated to verify the Applicant’s employment experience.  Having regard to its other concerns, the Tribunal found that this evidence was not sufficient to outweigh its significant concerns with the Applicant’s credibility and the other evidence before it. 

5. The Tribunal acknowledged the Applicant’s submissions that the fact that he had been able to impress the Café Greco manager with his cooking demonstration of Italian recipes (despite not having experience in Italian cooking in India) and to work skilfully as a cook at Café Greco immediately after completing his studies supported his claim that he had undertaken volunteer work experience at Dom’s.  However, in combination with its other concerns, the Tribunal did not find this argument convincing.  It observed that the Applicant had previously completed two certificate courses and a diploma course in hospitality and that his transcripts displayed a broad array of subjects relevant to the skills of a cook.  He had also completed a 22 week industrial training course with a hotel in India and had previous cooking experience (albeit in Indian food) in an Indian hotel.  It found that even if the Applicant lacked specific cooking experience in an Italian restaurant, he had a sufficiently broad range of training and skills as to have made him capable of completing a successful cooking demonstration and to be suitable for employment by Café Greco as a cook. 

6. In paragraph 71 of its reasoning, under the heading “Findings on non-compliance”, the Tribunal stated:

   The Tribunal observes that the wording of s.97 stipulates that a document is taken to be a bogus document where the Minister reasonably suspects that, relevantly, it was obtained because of a false or misleading statement. The Tribunal appreciates that, taken separately, the above adverse information and concerns might not be sufficient to lead the Tribunal to find that the applicant’s skills assessment is a bogus document. However, when viewed in combination, the Tribunal is satisfied that there is evidence before it of sufficiently probative value as to lead the Tribunal to reasonably suspect that the applicant’s skills assessment was obtained because of a false statement as to his employment experience at Dom’s. As such, the Tribunal finds that the applicant’s TRA skills assessment is a bogus document within the meaning of s.97 of the Act.

7. The Tribunal was satisfied that the Applicant gave the TRA skills assessment to an officer performing a function or purpose under the Act in breach of s.103 of the Act. It found that as part of his visa application the Applicant had provided or caused his migration agent to provide a copy of the TRA skills assessment to the Department.

8. The Tribunal found that as there was non-compliance with s.103 “in the way described” in the s.107 notice, it was unnecessary to consider whether Mr Brar had also failed to comply with s.101 in the way described in the s.107 notice.

9. The Tribunal then considered the exercise of the discretion as to whether to cancel the visa pursuant to s.109 of the Act. In so doing it had regard to the prescribed circumstances for the purposes of s.109(1)(c) of the Act as set out in reg.2.41 of the Migration Regulations 1994 (Cth) (the Regulations).

10. Regulation 2.41 is as follows:

    Whether to cancel visa--incorrect information or bogus document (Act, s 109(1)(c))

    For the purposes of paragraph 109(1)(c) of the Act, the following circumstances are prescribed:

    (a) the correct information;

    (b) the content of the genuine document (if any);

    (c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;

    (d) the circumstances in which the non-compliance occurred;

    (e) the present circumstances of the visa holder;

    (f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

    (g) any other instances of non-compliance by the visa holder known to the Minister;

    (h) the time that has elapsed since the non-compliance;

    (j) any breaches of the law since the non-compliance and the seriousness of those breaches;

    (k) any contribution made by the holder to the community.

11. The Tribunal recorded that matters raised by the Applicant in response to the s.107 notice and before it were discussed in the context of the prescribed circumstances and other considerations.

12. Under the heading “The correct information” (which was expressed in terms of the prescribed circumstance referred to in reg.2.41(a)) the Tribunal stated:

    77. For the reasons set out above, the Tribunal finds that the correct information is that the applicant did not complete any volunteer work experience at Dom’s and that his skills assessment is a bogus document on the basis that it was obtained because of a false statement as to his employment experience at Dom’s.  To the extent that the applicant gave oral evidence to the contrary on these matters, for the reasons above, the Tribunal has not accepted that evidence.

13. The Tribunal found that there was no genuine document of relevance to the matter and hence that the factor in reg.2.41(b) had no application.

14. Under a heading expressed in terms of reg.2.41(c) the Tribunal referred to the fact that at the hearing it had been submitted that the Applicant had sufficient overseas work experience to have obtained a positive skills assessment from TRA and the fact that his evidence was that he had undertaken volunteer experience simply to get cooking experience in Australia, rather than to meet the 900 hours of volunteer work experience necessary to get the skills assessment.

15. The Tribunal acknowledged that it might have been open to the Applicant to have obtained a skills assessment through other means, such as by relying on his overseas work experience, but was of the view that if the correct information (namely, that he had provided a bogus skills assessment on the basis of alleged work experience that he had not undertaken) had been known to the Department, this would likely have led to the refusal of his visa application under cl.886.224(d) in Schedule 2 to the Migration Regulations.

16. The Tribunal also found, in the alternative, that even if it were to accept that the Applicant might still have been granted the visa notwithstanding his provision of a bogus document “this was not sufficient, either singularly or in combination with other factors to alter the Tribunal’s decision to exercise its discretion to cancel the applicant’s visa”. 

17. In relation to the circumstances in which the non-compliance occurred (see reg.2.41(d)), the Tribunal noted that at the hearing the Applicant had had nothing to say about this factor, except to reiterate his claim that his work experience was all genuine. It recorded that, for the reasons given, it had not accepted that evidence and had found that the skills assessment was a bogus document.

18. The Tribunal also considered the present circumstances of the visa holder (see reg.2.41(e)) including the fact he had been in Australia for approximately seven years working as a cook/chef and had good references from Australian employers. The Tribunal accepted the evidence before it relating to the Applicant’s employment experience as a cook/chef since approximately March 2008 and acknowledged that there was a current skills shortage in this field. The Tribunal was prepared to accept that a further skills assessment would be successful and took this into account in the Applicant’s favour, but found that it was:

    …not sufficient, either singularly or in combination with other factors, to alter the Tribunal’s decision to exercise its discretion to cancel the applicant’s visa.

19. The Tribunal referred to the absence of matters of relevance in relation to the factors listed in regs.2.41(f), (g) and (j). It acknowledged that it had been approximately five years and three months since the relevant non-compliance (see reg.2.41(h)). It stated that it had taken into account the Applicant’s submissions (which it summarised) about his contribution to the community (see reg.2.41(k)). However, the Tribunal found that:

    … these matters are not sufficient, either singularly or in combination with other factors, to alter the Tribunal’s decision to exercise its discretion to cancel the applicant’s visa.

20. The Tribunal also referred to the need to have regard to certain matters as a matter of government policy, but noted that when these factors had been raised at the hearing, the Applicant had indicated that he had nothing further to add. 

21. Under the heading “Findings” the Tribunal stated:

    93. Having regard to all of the evidence before it, both separately and cumulatively, and noting each of the mandatory factors set out and discussed above, the Tribunal is satisfied that the non-compliance in this matter was serious.  Notwithstanding the various claims made by the applicant, including in respect of his current circumstances, the Tribunal is satisfied that his visa should be cancelled.

22. The Tribunal affirmed the decision to cancel the Applicant’s Subclass 886 visa. 

These Proceedings

1. The Applicant sought review by application filed in this court on 15 October 2013.  There were seven grounds in the application.  In written submissions counsel for the Applicant indicated that ground 6 was not pressed and made submissions in relation to each of the other grounds.  However at the hearing counsel for the Applicant also informed the court that grounds 4 and 7 were not pressed, but that the arguments in the written submissions in relation to ground 4 were relied on in support of ground 3.  This leaves for consideration grounds 1, 2, 3 and 5.

Grounds 1 and 2

1. The first ground is that the Tribunal made a jurisdictional error in that it constructively failed to exercise its jurisdiction.  The particulars to this ground are as follows:

   (a)  The jurisdictional question for the [Tribunal] was whether there was non-compliance by the applicant in the way described in the s.107 notice.

   (b)  The [Tribunal] did not have regard to the s.107 notice in finding that the applicant was non-compliant with section 103 in the way described in the s.107 notice.

   (c)  The jurisdictional question was not whether the [Tribunal] reasonably suspected that the applicant’s skills assessment was a bogus document.

   (d)  The jurisdictional question required the [Tribunal] to determine whether it accepted in whole or in part evidence by or on behalf of the applicant.

   (e)  The jurisdictional question for the [Tribunal] was not whether there was probative evidence to lead the [Tribunal] to reasonably suspect that the applicant’s skills assessment was obtained because of a fake [sic] statement as to his employment experience.

2. The Applicant submitted that grounds 1 and 2 went together.  They were addressed in that fashion.  Ground 2 is that the Tribunal made a jurisdictional error by making error(s) of law.  The particulars to this ground are as follows:

   (a) As to the significance of the words “reasonably suspects” in s97 in relation to the standard satisfaction required of the [Tribunal] under s109.

   (b) As to section 97 itself in that the construction of section 97 adopted by the [Tribunal]was that the issue raised is whether the Minister reasonably suspects that a document is a bogus document.

3. The Applicant suggested that the critical issue before the Tribunal concerned whether there had been non-compliance by the Applicant “in the way described” in the NOICC and referred to the following remarks of the Full Court of the Federal Court in Brar at [45]:

   The Minister’s power to cancel a visa under s 109 only arises if the Minister decides under s 108 that there has been non-compliance by the holder of the visa. By reason of s 108 the Minister’s inquiry is limited to the question of whether there was non-compliance in the way described in the notice. In other words, it would be beyond the Minister’s power to inquire into whether there was non-compliance in a way not described in the notice. In this way the giving of a notice under s 107 becomes a key step in the process which may lead to the cancellation of a visa under s 109 and performs the function of providing the procedural fairness identified in s 107 to the holder of the visa. If the notice under s 107 does not describe the non-compliance, or if the Minister decides that there has been non-compliance in a way not described in the notice, then the Minister has exceeded the power given in s 108 and s 109.

4. It was acknowledged that in Brar at [61] the Full Court of the Federal Court had observed that some departures from statements made in a s.107 notice (which were minor and insignificant in the context of the facts of the case and did not go to the substance of the allegations of non-compliance) would not deprive the decision-maker of jurisdiction under ss.108 and 109 of the Act. The Applicant submitted, however, that subject to this caveat, the NOICC was the basis of the decision-maker’s jurisdiction and that the Tribunal was not entitled to ignore the NOICC. It was submitted that in this case the Tribunal had ignored the NOICC and instead had had regard to what it considered to be the “central” issue of whether the Applicant had performed over 900 hours of voluntary work as a cook at Dom’s.

5. The Applicant contended that the Tribunal had not had regard to the s.107 notice in finding that the Applicant was non-compliant with s.103 of the Act in the way described in the s.107 notice.

6. The Applicant submitted that the NOICC made a number of allegations in what was said to be the critical part of the notice under the heading “Section 103 – Evidence of non-compliance”.  This part of the NOICC was as follows:

   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. 

7. It was submitted that the “finding” in the NOICC that the work reference letter from Dom’s was fraudulently obtained was plainly an allegation (or finding) against persons, including the Applicant, of fraud.  The allegation that the Applicant then provided the “fraudulent work reference” to TRA for his skills assessment was said to involve the usual meaning of “fraudulent” as something that was deliberately dishonest.  The NOICC also stated that the skills assessment “was obtained through false and misleading statements” and that it was therefore considered to be a bogus document within the meaning of s.97 of the Act. It was submitted that the NOICC did not rely on any notion that the skills assessment was “reasonably suspected” to have been obtained because of a false or misleading statement, but rather referred to actual fraud. 

8. The Applicant acknowledged that as a matter of law giving or causing a document to be given to an officer of the Department that the Minister reasonably suspected was obtained because of a false or misleading statement, whether or not made knowingly, would constitute non-compliance with s.103. However it was submitted that in this instance the NOICC allegation under s.103 went further – in that it went to matters anterior to this stage and also plainly involved an allegation that the Applicant was in fact involved in fraud. The NOICC was said to contain a finding that the work reference letter from Dom’s was (in fact) fraudulently obtained. It stated that the TRA skills assessment was (in fact) obtained through false and misleading statements. The Applicant submitted that the NOICC did not rely upon any notion that the document was “reasonably suspected” of having been obtained because of a false or misleading statement, as distinct from the notion that the skills assessment was in fact obtained through false and misleading statements.

9. The Applicant submitted however that in contrast to the approach taken in the NOICC, the Tribunal had simply noted various pieces of evidence for and against the Applicant’s case and commented about certain aspects, without making any clear findings as to whether or not the work reference letter was fraudulently obtained or the skills assessment was obtained through false and misleading statements. It was contended that in proceeding in this manner the Tribunal had failed to consider whether there was non-compliance with s.103 “in the way described in the s.107 notice”.

10. It was pointed out that in paragraph 62 (which was part of the Tribunal’s consideration of information relating to the departmental investigation of Mr A), after expressing the view that the evidence provided a direct link between the Applicant and Mr A’s activities, the Tribunal had continued:

    … Whilst the Tribunal acknowledges the applicant’s denial of any knowledge or association with [Mr A], this has not been sufficient to outweigh the Tribunal’s credibility concerns in this matter and other evidence before the Tribunal.

1. After addressing other matters relevant to the Applicant’s evidence, the Tribunal went on to make findings on non-compliance expressed in terms of reasonable suspicion.  Relevantly, the Tribunal stated at paragraph 71:

   The Tribunal observes that the wording of s.97 stipulates that a document is taken to be a bogus document where the Minister reasonably suspects that, relevantly, it was obtained because of a false or misleading statement. The Tribunal appreciates that, taken separately, the above adverse information and concerns might not be sufficient to lead the Tribunal to find that the applicant’s skill assessment is a bogus document. However, when viewed in combination, the Tribunal is satisfied that there is evidence before it of sufficiently probative value as to lead the Tribunal to reasonably suspect that the applicant’s skills assessment was obtained because of a false statement as to his employment experience at Dom’s. As such, the Tribunal finds that the applicant’s TRA skills assessment is a bogus document within the meaning of s.97 of the Act.

2. The Applicant acknowledged that the Tribunal had correctly stated the effect of s.97 of the Act in paragraph 71 of its reasons in its “Findings on non-compliance”, but submitted that this was not the correct starting point in determining whether there was non-compliance “in the way stated” in the NOICC. Rather, the starting point was said to be the approach taken in the NOICC. It was submitted that the Tribunal had moved from consideration of whether there had been non-compliance in the way described in the NOICC to the different question of whether a finding could be made that the Applicant’s TRA skills assessment was a bogus document under s.97 of the Act because it was reasonably suspected to have been obtained because of a false statement as to his employment experience at Dom’s. It was suggested that the Tribunal had erred in avoiding resolving the issues of whether it rejected the Applicant’s evidence outright and whether it was satisfied that the skills assessment was in fact obtained through false and misleading statements (as to the Applicant’s employment experience at Dom’s) as alleged in the NOICC.

3. The Applicant also submitted that the case put forward by him before the Tribunal had involved an attack on the Mr A information (at least insofar as it applied to him) and that while the Tribunal did not have to find generally that the Mr A information was true or untrue, it had to make a finding about its application to this particular Applicant in the face of his sworn evidence that he worked at Dom’s for the requisite 900 hours, the evidence of his witnesses and the supporting letter from his migration agent, particularly given the need to address the issue of whether the work reference was fraudulently obtained as stated in the NOICC. 

4. The Applicant acknowledged that the Tribunal’s conclusion (for the reasons it set out) that there was non-compliance with s.103 by the Applicant “in the way described” in the s.107 notice, but submitted that this could not be regarded as a free-standing finding about the NOICC and that insofar as it directed attention back to the reasons in paragraph 71 of the Tribunal decision (set out at [38] and [66] above) that part of the reasons did not adequately have regard to the notice.

5. Counsel for the Applicant confirmed that in essence it was submitted that it was necessary for the Tribunal to make a finding in relation to fraud consistent with the language of the NOICC, because it was constrained by the NOICC and had to make findings in accordance with the allegations in the notice and not in some other way, even if that was a way which would be available generally under the Act.

6. In particular it was submitted that in this case it was not open to the Tribunal to reach a conclusion based on a reasonable suspicion that the skills assessment was obtained because of a false or misleading statement because in describing the evidence of non-compliance the NOICC had not used the language of reasonable suspicion or based the allegation of non-compliance on reasonable suspicion. 

7. In relation to ground 2 the Applicant submitted that provisions of the Act such as s.97 and the use of concepts such as “reasonably suspects” did not give the Minister or the Tribunal a “roving commission” to make findings in accordance with those sections, as it was limited to making findings under ss.108 and 109 of the Act and, in particular, by the requirement in s.108 that it decide whether there was non-compliance by the visa holder “in the way described” in the s.107 notice. It was again submitted that in this case, as drafted, the notice under s.107 required a positive state of satisfaction or finding that a visa holder had engaged in particular conduct (rather than merely relying on the concept of reasonable suspicion) and that the NOICC left no room for the operation of the concept of reasonable suspicion in relation to the alleged non-compliance with s.103.

8. In any event, the Applicant submitted that the notion of reasonable suspicion could not be satisfied by the Tribunal merely identifying evidence which was probative, without making any attempt to make findings about such evidence. It was submitted that the Tribunal had failed to carry out its jurisdictional task pursuant to ss.108 and 109 which required it to first decide whether there had been non-compliance in the way described in the NOICC and then, if there had been, to decide whether to cancel the visa.

9. The First Respondent contended that, as the Tribunal noted in its reasons, the non-compliance identified and particularised in the NOICC relevantly involved an alleged non-compliance with s.103 of the Act and that the Applicant was said to have failed to have complied with s.103 because he had provided the Department with a bogus document, being a positive skills assessment. It was submitted that the Tribunal had considered whether there was non-compliance in this respect and had concluded that there was, and that it had not fallen into error in the manner contended for in grounds 1 or 2 in the application.

10. In particular, the First Respondent pointed out that the NOICC had set out s.103 and the definition of bogus document in s.97 and had made a clear allegation of a failure to comply with s.103 of the Act. It was said to have identified with sufficient specificity the relevant bogus document such as to put the Applicant on notice that what was alleged was that the TRA skills assessment was a bogus document within the s.97 definition. It was also submitted that in the part of the notice describing evidence of non-compliance the Tribunal did not have to refer to the requirement of “reasonable suspicion” in circumstances where that requirement was built into the definition of bogus document which had already been referred to in the s.107 notice.

11. It was contended that the obligation on the Tribunal was to consider whether there was a bogus document in the form of a TRA skills assessment provided to the Department and that in this context the Tribunal had correctly considered whether there was non-compliance by the visa holder in the way described in the notice as required by s.108 and as considered by the Full Court of the Federal Court in Brar at [61]. It was pointed out that the Tribunal made the requisite finding in terms of reasonable suspicion.

12. The First Respondent also submitted that the Tribunal engaged in an orthodox train of reasoning, in that it assessed the evidence which ultimately led it to the conclusion that the Applicant had provided a document which was a bogus document (considered from the s.97 perspective of reasonable suspicion) and that hence there was non-compliance with s.103 in the way described in the s.107 notice.

Consideration

1. It is necessary to have regard to the statutory cancellation regime under the Migration Act as it stood at the relevant time. Subdivision C of Division 3 of Part 2 of the Act imposed obligations on non-citizens; including to provide correct information in visa applications and passenger cards; not to provide bogus documents; and to notify the Department of any incorrect information of which they became aware and of any relevant changes in circumstances.

2. Section 109(1) of the Act empowered the Minister to cancel a visa if the visa holder had failed to comply with s.101, s.102, s.103, s.104, s.105 or s.107(2) of the Act. It was as follows:

   The Minister, after:

   (a) deciding under section 108 that there was non-compliance by the holder of a visa; and

   (b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

   (c) having regard to any prescribed circumstances;

   may cancel the visa.

3. In this case, the only obligations in issue were those in s.103 of the Act, which provided:

   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.

4. While there was also an allegation of non-compliance with s.101 of the Act in the NOICC (on the basis of incorrect information in the visa application) the Tribunal’s decision was based only on its finding of non-compliance with s.103 of the Act.

5. As indicated, at the relevant time “bogus document” was defined in s.97 of the Act as follows:

   In relation to a person, means a document that the Minister reasonably suspects is a document that:

   …

   (c) was obtained because of a false or misleading statement, whether or not made knowingly.

6. Section 107 of the Act relevantly provided:

   (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) gives 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

   …

   (2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement. 

7. Under s.108 of the Act, the Minister was to:

   …

   (a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

   (b) decide whether there was non-compliance by the visa holder in the way described in the notice.

8. Section 109(1) then came into play. It relevantly provided:

   (1) The Minister, after:

   (a) deciding under section 108 that there was non-compliance by the holder of a visa; and

   (b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b);  and

   (c) having regard to any prescribed circumstances;

   may cancel the visa.

9. Prescribed circumstances for the purposes of s.109(1) were to be found in reg.2.41 of the Migration Regulations as set out at [42] above.

10. While in specified circumstances the Minister must cancel a visa (see s.109(2)) in this case the discretionary power to cancel a visa under s.109(1) of the Act was in issue.

11. As the Tribunal recognised, on review it may exercise all the powers and discretions conferred by the Migration Act on the primary decision-maker for the purposes of the decision under review. In exercising its power of review in respect of a visa that had been cancelled under s.109, the Tribunal must decide whether there was non-compliance for the purposes of s.108(b) of the Act (see Saleem v Migration Review Tribunal [2004] FCA 234 at [22], and the Full Court decision in Brar).

12. In Brar the Full Court of the Federal Court considered, inter alia, whether the particular NOICC in issue in these proceedings engaged the power in s.109 of the Act. While the basis for the Applicant’s challenges to the s.107 notice differed from those he now pursues in relation to the second Tribunal decision (see Brar at [42]) the Full Court’s consideration of the cancellation provisions and, in particular, the scope of the inquiry under s.108(b) as to “whether there was non-compliance in the way described in the [s.107] notice” is of assistance. 

13. As pointed out in Brar at [54], in Minister for Immigration and Multicultural Affairs v McDade (2001) 109 FCR 137; [2001] FCA 457 at [34], the Full Court of the Federal Court noted that the decision for the Minister under s.108 was not whether there “was non-compliance by the visa holder with, for example, s.101 but whether there was non-compliance by the visa holder in the way described in the notice”. The same reasoning would apply in relation to an alleged non-compliance with s.103 of the Act. The giving of a notice which complies with s.107 is a statutory precondition to the exercise of the power to cancel a visa under s.109 (see Zhong v Minister for Immigration and Citizenship (2008) 171 FCR 444; [2008] FCA 507 at [81] and Brar at [54]).

14. As the Applicant submitted, the nature of the s.108(b) inquiry was explained in Brar at [45] as follows:

    The Minister’s power to cancel a visa under s 109 only arises if the Minister decides under s 108 that there has been non-compliance by the holder of the visa.  By reason of s 108 the Minister’s inquiry is limited to the question of whether there was a non-compliance in the way described in the notice.  In other words, it would be beyond the Minister’s power to inquire into whether there was non-compliance in a way not described in the notice.  In this way, the giving of a notice under s 107 becomes a key step in the process which may lead to the cancellation of a visa under s 109, and performs the function of providing the procedural fairness identified in s 107 to the holder of the visa.  If the notice under s 107 does not describe the non-compliance, or if the Minister decides that there has been non-compliance in a way not described in the notice, then the Minister has exceeded the power given in s 108 and s 109.

15. In Brar the Full Court found (at [55]) that the NOICC in issue in these proceedings “on the face of it” set out the matters it was required to contain by reason of s.107. Notably, the Full Court also pointed out in Brar at [56] that a s.107 notice was not a criminal charge or a pleading in a civil action, although it must contain, among other things, particulars of the possible non-compliance (as stated in s.107(1)(a) of the Act), and that the decision-maker under s.108 must decide whether there has been non-compliance in the way described in the notice.

16. Their Honours referred with approval to the approach taken by the Full Court in Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 in relation to the requirement of “particulars” in a notice under s.119 and the cancellation provision in s.116 of the Act. While s.119 was in different terms to s.107, the Court in Brar found of assistance the remarks in Zhao at [25]-[26] as follows:

    Section 119 requires particulars of the grounds relied upon to be included in the notice.  The level of particularity is not specified.  It must serve the statutory purpose.  That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. 

    …

    The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism.  The overall purpose to be served by s119 is procedural fairness and it is that which informs the construction and application of the section (emphasis added).

17. Unlike s.119, which relates to cancellation in various circumstances specified in s.116, s.107 does not require the notice to include “particulars of the grounds” or of “the information… because of which the grounds [for cancelling the visa] appear to exist”.  This reflects the different context of cancellation of a visa for non-compliance with specified sections of the Act.  However the scope of the notion of “particulars of the possible non-compliance” in s.107 of the Act should, similarly, serve the statutory purpose of fairly informing the visa holder (when read in conjunction with any supporting information) of the basis on which cancellation is being considered (or, more precisely, to use the language of s.107, the basis on which the Minister “considers” that the visa holder “did not comply with section 101, 102, 103, 104 or 105” or with s.107(2) of the Act).

18. Moreover, in Brar the Full Court drew an analogy between the approach taken by the High Court in Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; [2009] HCA 37 and the approach to be taken to the construction and application of a s.107 notice. In SZIZO the High Court had rejected a contention that provisions dealing with methods of notification in ss.441A and 441G of the Act were inviolable restraints conditioning the Tribunal’s jurisdiction to conduct and decide a review. Rather, they were said to be procedural steps designed to ensure that an applicant was able to properly advance his or her case. The Court indicated that a failure to comply with such provisions would require consideration of whether, in the events that occurred, the applicant was denied natural justice (at [36]). The Court in Brar suggested a similar approach should be taken in relation to ss.107, 108 and 109 of the Migration Act, particularly as the phrase in s.107(1)(a) “particulars of the possible non-compliance” could “only be given meaningful content by reference to the facts of a particular case” (Brar at [60]).

19. The Federal Court went on to state in Brar at [61]:

    In our opinion, it was not Parliament’s intention that all departures from the statements made in a notice under s 107 deprive the decision-maker of jurisdiction under ss 108 and 109 to making findings of non-compliance by the visa holder in the way described in the notice. The phrase “in the way described in the notice” must be read in light of the purpose of the statutory scheme which is to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and to respond to them. A departure which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegations of non-compliance does not deprive the decision-maker of jurisdiction under ss 108 and 109…

20. In Brar, the Full Court was considering the significance of the fact that the s.107 notice asserted that Mr Brar had given a bogus document to an “officer” as defined (rather than to an authorised system as was said to have occurred). Their Honours were of the view that such a departure from the statement in the s.107 notice was minor or insignificant in the context of the facts of the particular case and did not go to the substance of the allegations of non-compliance such as to deprive the Tribunal of jurisdiction. In reaching this conclusion, their Honours had regard to the fact that the phrase “in the way described in the notice” must be read in light of the purpose of the statutory scheme “to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and to respond to them” (at [61]). 

1. Significantly, in that context the Court continued at [61] (in relation to the same NOICC as is in issue in this case) that:

   The central issue in terms of the allegations of non-compliance was the accuracy or otherwise of the work reference letter from Dom’s and adequate particulars of the allegations with respect to that issue were given in the notice under s 107.  Furthermore, the notice clearly referred to the date upon which the [visa applicant] lodged his application and the address to which it was sent… The [applicant] and his advisers would not have been under any misapprehension as to the occasion upon which it was said that he had failed to comply with s 103 of the Act (emphasis added). 

2. In these proceedings ground one asserts in essence that the Tribunal failed to address whether there was non-compliance by the visa holder “in the way described in the [s.107] notice” as required under s.108(b). It is important to bear in mind that the s.107 notice is not the point at which the Minister or the Tribunal makes a final decision about actual non-compliance. This is reflected in the fact that the notice must give “particulars of the possible non-compliance” (emphasis added).  Such particulars are required to identify the basis on which the Minister considers the visa holder did not comply with one or more of the specified section of the Act.  However they do not have to be considered in isolation.  As the Full Court stated in Brar, the particulars should (together with any supporting information) inform the visa holder of the basis on which cancellation is being considered in such a manner as to meet the procedural fairness purpose of s.107.

3. In this case, the relevant possible non-compliances were set out at the start of the s.107 notice, which advised that the delegate of the Minister considered that the Applicant did not comply with ss.101(b) and 103 of the Migration Act (reflecting the language of s.107(1) of the Act). Relevantly, both ss.101 and 103 were set out in the “particulars” part of the NOICC, as was the s.97 definition of bogus document. In addition, immediately under the heading “particulars of the possible non-compliance” (again reflecting the language of s.107(1)) the delegate made it clear that the consideration that there had been non-compliance with ss.101 and 103 was “on the material presently before” her. 

4. Importantly, the NOICC went on to clarify that what was in issue was a “possible” non-compliance in stating:

   The reasons why I suspect you have not complied with sections 101(b) and 103 of the Act, are as follows:

5. The notice then described certain information before the delegate.  It referred to the visa application of 24 May 2008; the authorisation of a particular migration agent; inclusion in that application form of information as to a skills assessment for the nominated occupation of cook provided by TRA on 6 February 2008; and the claims in the visa application about the Applicant’s employment in the occupation of cook with Dom’s from 21 December 2006 to 28 December 2007.  It also referred to the further evidentiary documents lodged by the Applicant, including a work reference letter from Dom’s which the NOICC described as certifying that Mr Brar had been working at Dom’s from 21 December 2006 to 28 December 2007 in the position of cook and had undertaken unpaid work experience as a cook and contributed more than 900 hours to the restaurant. 

6. The NOICC also referred to a work reference of 23 April 2008 from Café Greco which certified Mr Brar’s employment as a chef from March 2008.  Reference was also made to the points for his skills claimed by the Applicant and the score he was given.  It was explained that his eligibility to apply for the visa was conditional on the successful result from TRA which was based on evidence provided to TRA in relation to his educational qualifications and the 900 hours of relevant work experience.

7. The NOICC set out the requirement in the visa criteria for a skills assessment. This was said to be required under cl.880.221 in Schedule 2 to the Migration Regulations. It appears that this was a reference to the incorrect provision, but that it was corrected in subsequent s.107 notices. No issue is taken in these proceedings in that respect.

8. Then, under the headings “Section 101(b) – Evidence of non-compliance” and “Section 103 – Evidence of non-compliance”, the NOICC addressed the evidence before the delegate.  In support of his contentions in relation to grounds 1 and 2 the Applicant referred to the part of the description of “evidence” that appeared under the second of these headings: “Section 103 – Evidence of non-compliance”. However, it is clear that what was said in that part of the NOICC followed on from and should be read in light of the discussion of evidence in relation to s.101(b) of the Act (which relevantly provides that no incorrect answers can be given in a visa application form). These parts of the NOICC stated:

   Section 101(b) – Evidence of non-compliance

   On 11 November 2009, the following contrary information came to the attention of the department.  During an interview conducted between department investigators and a mediator (sic), it was stated that the work reference letters from Dom’s Family Bistro were false and that the owners of the business had been paid for each reference letter falsely created.  The informant also claims that no international students had completed work experience at Dom’s Family Bistro.  The department attempted to contact the owners of the restaurant and left repeated messages however it appears the owners are reluctant to contact the department to verify the work references lodged with TRA.

   Based on the available evidence, it is suspected you provided incorrect information to TRA in relation to the 900 hours work experience.  The department has since obtained the work experience reference letter you provided to TRA.  The letter on Dom’s Family Bistro & Pizza letterhead is the same as the letter you submitted to the department in your visa application.  Your work reference letter from Café Greco which you submitted to the department in your visa application, was not provided to TRA for assessment.

   The department suspects the information provided to TRA in relation to your work experience at Dom’s Family Bistro & Pizza is false or misleading in a material particular. 

   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.

9. The Tribunal’s description of the evidence under the heading “Section 103 – Evidence of Non-Compliance” clearly follows on from what was stated before that heading, although it is the case that the delegate stated that “the department finds” that the work reference letter from Dom’s “was fraudulently obtained”, that Mr Brar then provided “the fraudulent work reference” to TRA for the skills assessment and that the skills assessment “was obtained through false and misleading statements” and therefore that it was considered to be a bogus document within the meaning of s.97 of the Act. After referring to presentation of the skills assessment from TRA to an officer of the Department, the notice went on to state that, in giving the bogus TRA skills assessment to an officer of the Department “you have failed to comply with section 103”. 

10. However this must be read in the context of the earlier reference to s.103 and the test of reasonable suspicion, as well as the “suspicion” expressed in the notice as to whether the information the Applicant provided to TRA in relation to his work experience at Dom’s was incorrect and/or false or misleading (based on the evidence from an informant and the departmental inability to obtain verification of work references from the owners of Dom’s).

11. Moreover (and despite the manner in which the “evidence” under the heading s.103 was described), the NOICC reflected the purpose of such a notice in immediately thereafter, under the heading, “What you can do”, making clear to the Applicant that before a decision could be taken on whether to cancel his visa, the Act gave him the opportunity to comment on “the possible non-compliance” and to give a written response as to why his visa should not be cancelled. It explained that the response should provide reasons why the Applicant thought he had complied, or why he had not complied with ss.101(b) and 103 and also why he thought his visa should not be cancelled (even if he thought he had complied, as the delegate may disagree with him).

12. Critically (given the earlier reference to a “finding”) the NOICC explained that the decision on whether to cancel the visa had not yet been made. It pointed out that such a decision was a two-step process and that first the delegate would decide whether the visa holder had complied with ss.101(b) and 103 and that his written response on this aspect would be taken into account. It was then explained that if the delegate decided that he had complied, his visa would not be cancelled, but that if the delegate decided he did not comply, a decision would be made on whether to cancel his visa, taking into account his written response on that issue and the matters set out in reg.2.41. Other matters which had to be included in the NOICC under s.107 were also set out.

13. The essence of ground one, as explained by counsel for the Applicant, is a contention that in deciding whether there was non-compliance by the visa holder in the way described in the NOICC as provided for in s.108(b) of the Act, the Tribunal on review was under an obligation to consider and determine not whether there was a non-compliance with s.103 of the Act by reference to whether the skills assessment was a bogus document because it was reasonably suspected to have been obtained because of a false or misleading statement as to the Applicant’s employment experience at Dom, but rather whether the work reference letter from Dom’s was in fact “fraudulently obtained” and the skills assessment was in fact “obtained through false and misleading statements”.  It was submitted that because the evidence of non-compliance described under the heading “Section 103 – Evidence of Non-Compliance” and in the NOICC was expressed in terms of findings of fraud and false and misleading statements the Tribunal had to determine whether there was such fraud and false and misleading statements, rather than making a finding about a bogus document in terms of reasonable suspicion as provided in s.97 of the Act as this was said to be “the way [the non-compliance was] described in the notice” as required under s.108(b) of the Act.

14. However I am not persuaded that a proper reading of the s.107 notice confines the Tribunal in the manner contended for by the Applicant such that it was under an obligation to make a finding as to whether there was actual fraud and actual false or misleading statements in order to meet the requirements of s.109(1)(a) in light of s.108(b) of the Act.

15. The NOICC ought to be read as a whole and having regard to the purpose of the statutory scheme which, as pointed out in Brar, is to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and to respond to them. In this case, the s.107 notice referred to and set out the relevant statutory provisions (in particular ss.103 and 97). It identified what was alleged to be the relevant bogus document (the TRA assessment). It put the Applicant on notice of the allegation that the TRA assessment was a bogus document and of the evidence available at that time that supported the Department’s view that there was a “possible non-compliance” with s.103. In my view, seen in context, the fact that in describing the evidence the NOICC indicated a view on the evidence presently before the delegate that the Applicant had engaged in certain conduct, was not such as to preclude the Tribunal, as decision-maker, from finding that the skills assessment was a document that it reasonably suspected was obtained because of a false or misleading statement, whether or not made knowingly.

16. The s.107 notice made it clear that the alleged possible non-compliance with s.103 was the giving of a bogus document consisting of the TRA skills assessment, to an officer of the Department. The NOICC met its procedural fairness purpose. The test of reasonable suspicion was set out by reference to the definition of bogus document included in the notice. The “evidence” referred to in the notice was evidence that was before the Department at that stage that went to whether or not the Department was of the view that the definition of “bogus document” was satisfied.

17. As stated in Brar at [61]:

    The central issue in terms of the allegations of non-compliance was the accuracy or otherwise of the work reference letter from Dom’s and adequate particulars of the allegations with respect to that issue were given in the notice under s 107.  Furthermore, the notice clearly referred to the date upon which the [visa applicant] lodged his application and the address to which it was sent… The [applicant] and his advisers would not have been under any misapprehension as to the occasion upon which it was said that he had failed to comply with s 103 of the Act. 

18. There is a distinction between whether there was possible non-compliance with s.103 “in the way described” in the NOICC and the delegate’s view of “the evidence” at that stage that was relied on in support of the asserted non-compliance.  Clearly it would have been insufficient if the NOICC had simply identified the relevant section (s.103) without any clarification of what a bogus document was or of which document was said to have been the bogus document (see Saleem at [44]). The NOICC particularised a possible non-compliance with s.103. It identified the possible bogus document as the TRA skills assessment to the Department. It explained that the central issue was whether the work reference letter from Dom’s relied on to obtain the skills assessment was false or misleading.

19. It was open to the Tribunal to consider whether there had been non-compliance with s.103 by Mr Brar in the way described in the notice by addressing whether the Applicant’s skills assessment was a bogus document (notwithstanding that this assessment was made on a much wider range of evidence than had been referred to in the s.107 notice). In that context, the Tribunal considered, consistent with the s.107 notice, the evidence as to whether the Applicant genuinely performed in excess of 900 hours of volunteer work as a cook at Dom’s as he claimed and as recorded in the work reference from Dom’s relied on to obtain the TRA skills assessment. It was not necessary for the Tribunal to make a finding that it was satisfied that there had in fact been fraud, given that the definition of “bogus document” would be met in relation to a document that the Minister (or in this case the Tribunal) reasonably suspected was a document that was obtained because of a false or misleading statement, whether or not made knowingly. I note also that in its s.359A letter of 11 July 2013 the Tribunal made clear to the Applicant that it had not made up its mind about information put to him and that what was in issue was reasonable suspicion that he provided a bogus document (being the skills assessment) in breach of s.103 of the Act in the manner particularised in the s.107 notice.

20. In taking this view, I have borne in mind the remarks of the Full Court in Brar to the effect that the purpose of a s.107 notice is to ensure that the visa holder is on notice of the alleged non-compliance and has an opportunity to dispute the allegations and respond to them, but that it is not a form of pleading which may then be the subject of strict construction (Zhao at [26] and Brar at [57]).  As the Full Court pointed out in Brar (at [61]) in relation to the circumstances of this case, the “central issue” in terms of the allegation of non-compliance was the accuracy or otherwise of the work reference letter from Dom’s. According to the Federal Court, adequate particulars of the allegations with respect to that issue were given in the notice under s.107, so that the Applicant understood that it was asserted that there was a possible non-compliance with s.103, that the asserted bogus document was the TRA skills assessment, and the reason it was asserted that it was a bogus document was that it was based on the work reference letter from Dom’s in circumstances where it was alleged that that work reference was not accurate. The Tribunal considered whether there was a non-compliance with s.103 on this basis. In doing so it considered there was non-compliance in the way described in the s.107 notice as required by s.108(b). It has not been established that it constructively failed to exercise its jurisdiction.

21. The fact that the s.107 notice expressed the delegate’s view on the evidence before her that the work reference letter was “fraudulently obtained” and a “fraudulent work reference” and that there were, in fact, false and misleading statements is an indication of the delegate’s view of the strength of the “evidence” before the Department at that time. I am not persuaded that this confined the Tribunal in the manner contended for by the Applicant such that it was obliged to consider whether to reach the same conclusion as to actual fraud in relation to the evidence before it in considering whether there was non-compliance by the visa holder in the way described in the s.107 notice. Ground 1 is not made out.

22. As indicated, in relation to ground 2 the Applicant submitted that a s.107 notice could be framed in such a way as to require a positive state of satisfaction or finding by the decision-maker that the visa holder had engaged in particular conduct (or that a document was in fact fraudulent or based on false or misleading statements) rather than relying on the concept of reasonable suspicion. It was contended that in this case that was what had occurred and that the NOICC in relation to s.103 left no room for the operation of the concept of the Minister reasonably suspecting.

23. However, as the First Respondent submitted, s.109 affords the decision-maker the power to cancel a visa once satisfied under s.108 that there was non-compliance by the visa holder. While s.108 requires the decision-maker to first make a finding as to whether there was non-compliance in the way described in the NOICC, for the reasons set out above I am satisfied that this occurred in this case. The Tribunal concluded that the Applicant had provided a bogus document to the Department (being the form of non-compliance described in the NOICC) being a document that the Tribunal reasonably considered to have been obtained because of a false or misleading statement.

24. As ground 2 is premised on acceptance of the view espoused for by the Applicant in relation to the way in which the non-compliance was described in the s.107 notice and the manner in which that confined the Tribunal’s decision-making, it cannot succeed. It has not been established that the Tribunal erred as to the significance of the words “reasonably suspect” in s.97 in relation to the standard of satisfaction required of it under s.109 of the Act. What was necessary for the purposes of ss.108 and 109 was that the Tribunal consider (as it did) whether the Applicant had provided a bogus document to the Department, being a document that the Tribunal reasonably suspected had been obtained because of a false or misleading statement.

1. The Applicant’s contention that the concept of reasonable satisfaction could not be satisfied merely by pointing to probative evidence without any attempt to make findings about evidence, appears to anticipate Ground 3 and for reasons discussed below is not made out.

2. As pleaded, particular (b) to Ground 2 contended that the Tribunal made an error of law in considering that the issue before it under s.97 was whether it reasonably suspected that a document was a bogus document. Insofar as it was intended to be suggested that the Tribunal considered whether it reasonably suspected that there was a bogus document, this was not the nature of its finding. The Tribunal clearly understood that the reasonable suspicion referred to in the s.97 definition of bogus document related to whether the document in question was obtained because of a false or misleading statement. Thus it found that it “reasonably suspects that the applicant obtained this skills assessment because of false statements regarding his employment at Dom’s, including his work reference”. The Tribunal’s construction of s.97 and its view of the significance of the words “reasonably suspects” in relation to the standard of satisfaction required under s.109 has not been shown to involve any errors of law.

3. Ground two is not made out.

Ground 3

1. The third ground in the application is that the Tribunal made a jurisdictional error “by failing to make any relevant findings as to what evidence it accepted and what evidence it rejected”. 

2. The Applicant suggested that this ground was allied to grounds 1 and 2 in that it took issue with what was said to be the Tribunal’s failure to make overall findings of fact in relation to the evidence.  It was acknowledged that at paragraphs 57 to 62 of its decision, the Tribunal had referred to evidence concerning the departmental investigation of Mr A and to information in an agreed statement of facts filed in relation to the prosecution of Mr A.  However it was submitted that the Tribunal had erred in failing to make any findings as to the veracity of anything that may have been said by Mr A, either generally or in relation to the Applicant.  It was submitted that the Tribunal’s failure in this respect could be categorised as a jurisdictional error as amounting to a failure to conduct the review in the sense considered in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30.

3. The Applicant submitted that the critical paragraph in the Tribunal’s decision in relation to this aspect of the evidence was paragraph [62], which is as follows:

   Additionally, as noted above, as part of the Department’s investigation a search warrant was executed on Mr [A’s] premises which uncovered a large body of falsified work references and associated documents used as part of his operation.  The Tribunal has been advised by the Department that its investigators located a copy of a work reference from Dom’s in the applicant’s name which was in Mr [A’s] possession.  This work reference was subsequently submitted in evidence in Mr [A’s] court case.  In response to a further request from the Tribunal for clarification, the Department subsequently confirmed that this work reference was identical in content (although different in format) to the work reference which the applicant provided to the Department in the present matter.  As such, contrary to the submissions of the applicant’s agent that there is no direct evidence linking the applicant to Mr [A] or his operations, the Tribunal considers that this evidence does provide a direct link between the applicant and the activities of Mr [A].  Whilst the Tribunal acknowledges the applicant’s denial of any knowledge or association with Mr [A], this has not been sufficient to outweigh the Tribunal’s credibility concerns in this matter and other evidence before the Tribunal.

4. The Applicant submitted that the last sentence in paragraph 62 placed impermissible hurdles on his evidence in relation to Mr A, in assuming the credibility of everything that Mr A may have said that related to the Applicant.  Further, it was said to assume that there was unidentified evidence which caused the Tribunal concern in relation to the Applicant’s sworn denial of knowledge of or association with Mr A.

5. The Applicant submitted that the concluding sentence of this paragraph did not amount to a finding on the part of the Tribunal as to whether it accepted or rejected the evidence of the Applicant and the other witnesses he had called and the documents he had provided.  Nor was there said to be a finding by the Tribunal as to whether it accepted any information about or emanating from Mr A (in circumstances where Mr A was not a witness before the Tribunal and the “evidence” from him came from various documents in departmental records). 

6. It was submitted that the Tribunal’s approach of stating that the Applicant’s denial of knowledge or association with Mr A was not sufficient to outweigh its credibility concerns and the other evidence before it was not sufficient, as the Tribunal was under an obligation to make findings, in particular in relation to whether or not it accepted the evidence before it. 

7. The Applicant also submitted that paragraph [62] indicated that the Tribunal had incorrectly proceeded on the basis that it was relieved of the obligation to make findings, because effectively the onus was on the Applicant to satisfy it that he had no knowledge of or association with Mr A.  Such an approach was said to be misconceived.  It was pointed out that the Applicant had denied knowledge of or association with Mr A.  It was submitted that he was entitled to have that evidence considered or other contrary evidence put to him for response. 

8. Counsel for the Applicant contended that even if the Applicant did not succeed in establishing either or both of grounds 1 or 2, this ground was a separate ground which ought to succeed, because even if it was appropriate for the Tribunal to have regard to reasonable suspicion, it still had to consider the evidence before it in order to form an ultimate view in relation to such reasonable suspicion.  It was submitted that it was not open to the Tribunal to say that a reasonable suspicion existed without coming to a view as to whether sworn evidence before it was accepted.  It was acknowledged that in light of the information from and about Mr A, there was some probative material against the Applicant, but nonetheless contended that it was not sufficient for the Tribunal to proceed on the basis that in circumstances where there was such probative evidence, the Applicant could not win because the probative evidence established the existence of reasonable suspicion.  It was submitted that the Tribunal had to consider all of the evidence and make findings in relation to that put forward by the Applicant, instead of simply stating that there was evidence before it of sufficient probative value as to lead it to reasonably suspect that the Applicant’s skills assessment was obtained because of a false statement as to his employment experience at Dom’s.

9. Counsel for the Applicant advised that while ground 4 (which asserted a failure to comply with s.359A of the Act) was not pressed, the submissions in relation to ground 4 were now relied upon in support of ground 3. It was submitted that in circumstances where the Tribunal had put information to the Applicant under s.359A of the Act, had advised him that it was information in respect of which it had not made up its mind and the Applicant had responded (submitting that such information should not be accepted and providing a statutory declaration stating, among other things, that he had never met Mr A or approached anyone else to provide him with a fake certificate to gain entry into Australia), the Tribunal was obliged to make findings in relation to the Mr A information.

10. The Applicant contended that a person in his position would, on receipt of the s.359A letter, have considered that the Tribunal had not made up its mind in relation to any evidence concerning Mr A, either generally or in relation to the Tribunal decision. However in its reasons for decision the Tribunal was said to have treated everything stated by Mr A to be true, including the allegation that a migration agent to whom he had provided a letter was the migration agent the Applicant had used when applying for the visa in question.

11. It was pointed out that this migration agent had provided a statement that the Applicant had provided all of the documents required for skills assessment and his work experience document and submitted that this was, effectively, a denial of the evidence that Mr A had provided in this respect, and that the Tribunal had erred in failing to make a finding as to whether it accepted or rejected this evidence.

12. This was said to be contrary to s.368 of the Act, which requires the Tribunal to set out its reasons, its findings or material questions of fact and refer to the evidence on which those findings were based. It was suggested that, particularly where the Tribunal had indicated in a s.359A letter that it had not made its mind up about information and had given the Applicant an opportunity to comment and where such information was part of the decision, the Tribunal was under an obligation to make findings in relation to such information. It was also pointed out that the information before the Tribunal had vastly increased from the material before the delegate and that Mr A was identified as someone who was the subject of a prosecution. It was contended that in these circumstances the Tribunal had to make a finding in relation to the Mr A information such as to reveal an active intellectual process in relation to whether that information was accepted in contrast to the contrary evidence of the Applicant.

13. The First Respondent submitted that it was not correct to say that the Tribunal had failed to make relevant findings as to what evidence it accepted or rejected, as the Tribunal had plainly identified the evidence that it accepted and that which it did not. It was contended that it was important to identify exactly what the question was for the Tribunal, which was said to be whether a bogus document (in the sense defined in s.97 of the Act) in the form of the TRA assessment was given to a departmental officer. It was pointed out that this was the manner in which the Tribunal had expressed the issue for consideration in its reasons for decision, consistent with the s.101 notice in which the relevant non-compliance was particularised as non-compliance with s.103 of the Act by providing to an officer of the Department who was performing a function under the Act, a bogus document, being a positive TRA skills assessment, that the Tribunal reasonably suspected was obtained because of a false or misleading statement.

14. It was submitted that in outlining and considering the evidence of non-compliance before it, it was not necessary for the Tribunal to refer to the notion of reasonable suspicion, given that it was inherent in the already cited definition of bogus document and pointed out that the Tribunal had noted that the “central issue” for consideration in assessing the alleged non-compliance was whether the Applicant genuinely performed in excess of 900 hours of volunteer work as a cook at Dom’s as claimed by him and recorded in his work experience reference (see Brar at [61]). 

15. The First Respondent submitted that having framed the issue correctly, the Tribunal then correctly went on to consider whether it was satisfied that there was non-compliance in the way described in the s.107 notice and, in doing so, discussed the evidence before it insofar as was necessary in circumstances where it made its ultimate findings in terms of reasonable suspicion.

Consideration

1. As the First Respondent submitted, in its discussion of the evidence before it, the Tribunal did identify some evidence it accepted and some that it did not. For example, the Tribunal accepted the Applicant’s evidence about his prior cooking qualifications and employment experience from India, his completion of relevant cooking qualifications in Australia and his work as a chef at Café Greco from March 2008 and thereafter at another restaurant from March 2009. It also accepted the evidence of the former manager at Café Greco about his personal reference check with the owner of Dom’s. In addition, the Tribunal considered the evidence from the current owner of Dom’s. It found this evidence to be of no assistance one way or the other as to whether the Applicant went to Dom’s after receiving a s.107 notice as he had claimed, but that the owner’s confirmation that he had not retained any staff from the time of the former owner of the restaurant was of potential assistance to the Applicant. The Tribunal properly considered the weight to be given to such evidence, but found that it did not outweigh its significant concerns about the Applicant’s credibility.

2. In its consideration of the evidence about the departmental investigation of Mr A, the Tribunal considered the evidence obtained by the Department of relevance to the issue of whether the TRA skills assessment was a bogus document on the basis that the Tribunal reasonably suspected that it was obtained because of a false or misleading statement as to the Applicant’s work experience at Dom’s.  It had regard to the departmental advice that investigators had located a copy of a work reference from Dom’s in the Applicant’s name in Mr A’s possession which was subsequently submitted as evidence in his court case and, relevantly, was identical in content to the work reference the Applicant had provided to the Department.  It rejected the submission of the Applicant’s adviser that there was no direct evidence linking the Applicant to Mr A or his operations and “considered” (that is, concluded) that this evidence provided a direct link between the Applicant and the activities of Mr A.

3. In light of its finding about such a direct link, the Tribunal went on to acknowledge and consider the Applicant’s denial of any knowledge of or association with Mr A.  It found that such denial was not sufficient to outweigh its credibility concerns and the other evidence (that it had referred to) before it.  There is no necessary implication that there was other, undisclosed, evidence before the Tribunal. 

4. The Tribunal’s approach to the evidence about Mr A did not involve an acceptance that such evidence was necessarily determinative.  Rather it was assessed by the Tribunal, in light of all the other evidence, including its view of the Applicant’s credibility. 

5. The Tribunal also considered the Applicant’s oral evidence in the context of assessing his credibility, but found aspects of his evidence to be evasive, lacking in believability, or such that it was difficult to accept.

6. Having regard to the issue for determination, the Tribunal’s reasoning in relation to the evidence before it provided a basis for its conclusion in paragraph 71 which properly recognised that the wording of s.97 stipulated that a document was taken to be a bogus document where the Minister (or Tribunal) reasonably suspected that it was obtained because of a false or misleading statement. The Tribunal’s approach revealed an appreciation that, taken separately, the individual items of adverse information and the concerns it had outlined might not be sufficient to lead it to find that the Applicant’s skills assessment was a bogus document. This amounted to an acknowledgement that the individual items of information might not be sufficient to warrant a reasonable suspicion. Nonetheless, the Tribunal concluded that, viewed in combination, it was satisfied that there was evidence before it of sufficiently probative value to lead it to reasonably suspect that the Applicant’s skills assessment was obtained because of a false statement as to his employment experience at Dom’s.

7. In the context of considering whether there was non-compliance with s.103 of the Act the Tribunal made the requisite findings in relation to the evidence before it. It was not obliged to make concrete factual findings in relation to whether it accepted, or did not accept, all the aspects of the evidence in relation to Mr A, given that what was required was an evaluative process to determine whether the requirement of reasonable suspicion was satisfied. The information in relation to Mr A was evaluated and considered by the Tribunal in light of the Applicant’s evidence and credibility findings. Hence the findings that the Tribunal did make were entirely in accordance with the way in which the issue was framed for consideration under the Migration Act.

8. I have considered the Applicant’s contention that the fact that the Tribunal had not made up its mind about the Mr A information at the time of the s.359A letter supported the proposition that in order to comply with its review function it must make findings in respect of each of these matters. However, having regard to the issue for consideration by the Tribunal (in essence, whether there was reasonable suspicion within the terms of s.97), it was not necessary for it to do more than undertake the evaluative exercise which it carried out.

9. Ground 3 is not made out.

Ground 5

1. Ground 5 is that the Tribunal made a jurisdictional error by treating the discretion under s.109(1) and the prescribed circumstances in reg.2.41 as requiring it to cancel a visa on the basis of non-compliance unless there was a discretionary factor of “sufficient strength” to change a decision it had made without reference to the discretion required by law. 

2. Initially the Applicant addressed ground 5 in conjunction with ground 7 in the application (which was to the effect that the Tribunal erred by failing to consider what weight, if any, it would give to its findings that it was five years and three months since the relevant non-compliance, that there were no other breaches of the law by the Applicant and that he was a well-regarded chef in an area in which there was a skills shortage).  However at the end of oral submissions counsel for the Applicant indicated that he did not press ground 7, but confirmed that he maintained the arguments he had made in relation to ground 7 in relation to ground 5.  The issues he raised in this context extended beyond ground 5 as pleaded. 

3. It was submitted first that in considering the discretion whether to cancel the visa, while the Tribunal was obliged to have regard to the findings that it had made about non-compliance, what it had done in addressing the discretionary factors was to elevate to the status of “findings” matters on which it had not in fact made earlier findings. 

4. Counsel for the Applicant submitted that in this part of its reasons for decision the Tribunal was not making additional findings and that having regard to the approach of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, it was apparent that the Tribunal was stating what its previous findings had been.

5. Issue was taken with the fact that in considering “the correct information” (the factor in reg.2.41(a)), the Tribunal had stated that “for the reasons set out above” it “finds” that the correct information was that the Applicant did not complete any volunteer work experience at Dom’s.  It was submitted that the Tribunal had not in fact made such an earlier finding, but rather that it had gone no higher than to state that it reasonably “suspected” that the Applicant had obtained a document because of a false or misleading statement. 

6. Issue was also taken with the Tribunal’s statement in the same context that “to the extent that the Applicant gave oral evidence to the contrary on these matters, for the reasons above, the Tribunal has not accepted that evidence”.  This was said not to be a correct statement of the Tribunal’s prior findings, which were said to be no higher than to the effect that the Tribunal had concerns with the Applicant’s credibility.  The Tribunal was said to have found only that it was satisfied that there was evidence before it of sufficiently probative value as to lead it to reasonably suspect that the Applicant’s skills assessment was obtained because of a false or misleading statement.  It was submitted that the Tribunal had not reached a state of positive satisfaction that the Applicant had behaved fraudulently and that this had to be taken into account in the exercise of its discretion.  It was submitted that the Tribunal was not “entitled” to “slide in between the two” approaches of reasonable suspicion and satisfaction that there was fraud and that it had mischaracterised its earlier findings in circumstances where it was not making further findings. 

1. It was also contended that the finding that the Tribunal made in relation to the reg.2.41(b) factor that “having regard to the above, the Tribunal finds that there is no genuine document of relevance to this matter” should not and could not be put in such absolute terms, given the manner in which the earlier findings had been expressed. 

2. Issue was also taken with the Tribunal’s approach to what constituted “the correct information”. While the Tribunal had acknowledged (in the context of considering the likely effect on a decision to grant a visa of the correct information) that it might have been open to the Applicant to obtain a skills assessment by relying on his overseas work experience, nevertheless in discussing the reg.2.41(c) factor it considered that the correct information was that he had provided a bogus skills assessment on the basis of alleged work experience that he had not undertaken and that if this had been known to the Department it would likely have led to the refusal of his visa application. The Applicant submitted that the correct information was not that the Applicant had provided a bogus skills assessment and that the concept of the “correct information” extended to the fact that the Applicant might have applied to TRA for an assessment of his skills and have been granted a satisfactory skills assessment based on his overseas qualifications.  It was submitted that if the Applicant could have obtained the visa by providing the correct information, this was a relevant matter in relation to the exercise of the discretion.

3. In any event, it was pointed out that while the Tribunal went on to find, in the alternative, that even if it accepted that the Applicant might still have been granted the visa, notwithstanding his provision of a bogus document, it expressed its finding in this respect as a finding that this was not sufficient, either singularly or in combination with other factors, to “alter the Tribunal’s decision” to exercise its discretion to cancel the Applicant’s visa. The Applicant submitted that the Tribunal’s reference to altering its decision to exercise its discretion to cancel the Applicant’s visa was an entirely wrong approach. It was submitted that such an approach revealed that the Tribunal had predetermined to cancel the Applicant’s visa and then placed an onus on the Applicant to convince it to reverse its predetermined position. This was said not to be a proper exercise of discretion and to constitute jurisdictional error on the basis contended for in ground 5 because it was impermissible under s.109(1)(c) and reg.2.41.

4. The same language (considering whether relevant factors were such as to “alter the Tribunal’s decision to exercise its discretion to cancel the Applicant’s visa”) also appears in paragraphs [84] and [89] of the Tribunal reasons for decision.  The Applicant submitted that this also revealed such an incorrect construction of the statutory provisions in question. 

5. It was submitted that the words stated by the Tribunal in these parts of its decision could be read in no other way than that the Tribunal had made a decision to exercise its discretion to cancel the visa and that it was then for the Applicant to persuade it not to exercise the discretion to cancel the visa.

6. The Applicant submitted that it was not open to the decision-maker to reach a decision to cancel the visa after consideration of the factors in s.109(1)(a) only and for there then to be an obligation on the Applicant to persuade it to alter its decision.

7. The First Respondent submitted that ground 5 was not made out, as the Tribunal had correctly considered the prescribed circumstances, weighed them against the non-compliance by the Applicant and had given adequate reasons for the exercise of its discretion and that the other issues raised by the Applicant in relation to this part of the Tribunal decision did not establish jurisdictional error. 

8. Insofar as the nub of the Applicant’s complaint in ground 5 was that the Tribunal had found that there was non-compliance and (even if this was in a way described in the s.107 notice) had then proceeded on the basis that there was a presumption of cancellation, the First Respondent pointed out that under the heading “Consideration of discretion” the Tribunal had (correctly) indicated that as it had decided that there was non-compliance in the way described in the notice given to the Applicant under s.107 of the Act, it was necessary for it to consider whether the visa should be cancelled pursuant to s.109(1). It had then indicated that matters raised by the Applicant in response to the s.107 notice (see s.109(1)(b)) were considered in the context of the prescribed circumstances (see s.109(1)(c)) and other considerations. The Tribunal referred to the fact that the prescribed circumstances were set out in reg.2.41 and then set out its consideration of these matters. It was submitted that this approach was inconsistent with the suggestion that the Tribunal had already formed a view that the visa ought to be cancelled unless the Applicant could dissuade it from that view.

9. Counsel for the First Respondent also referred to the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v Khadgi & Anor (2010) 190 FCR 248; [2010] FCAFC 145 at [58] in which the Court made the point that:

   In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 41 (per Mason J).  The failure to give any weight to a factor to which a decision-maker is bound to have regard in circumstances where that factor is of great importance in the particular case may support an inference that the decision-maker did not have regard to that factor at all.

10. It was submitted that in a context in which there was a discretionary power that had to be exercised after taking into account relevant considerations, the weight to be given to such considerations was a matter for the decision-maker, so that while the prescribed circumstances in this case were mandatory matters to which regard must be had, the weight to be given to each factor was a matter for the Tribunal. It was submitted that the Tribunal had had regard to each of the prescribed matters in reg.2.41 and also to additional factors under departmental policy in circumstances where there was no suggestion that the prescriptive reg.2.41 factors were necessarily exhaustive.

11. The First Respondent submitted that it was apparent that the Tribunal’s consideration of these factors had then led it to the conclusion (at paragraph 93) that it was appropriate to cancel the visa and that it had not proceeded on the basis that there was a presumption that the visa ought to be cancelled unless the Applicant could draw attention to a particular factor or factors that pointed in the other direction. 

12. It was acknowledged that the Tribunal had referred to the notion of whether matters were “sufficient to alter its decision” to exercise its discretion to cancel the Applicant’s visa, but submitted that this expression was used in the context of weighing in the balance the various considerations and that, considered in context, such remarks did not suggest that the Tribunal had in fact foreclosed the possibility that the visa might not be cancelled, but rather reflected the Tribunal’s thinking, having regard to the evaluative exercise it was undertaking in balancing up the various considerations.

13. As to the other issues raised by the Applicant, the First Respondent submitted that in the context of the discretionary considerations “the correct information” was information that was in contrast to what the Tribunal considered to be the incorrect information (that the Applicant completed work experience at Dom’s).

14. As to the contention that the Tribunal incorrectly stated its prior findings, the First Respondent submitted that the earlier findings in terms of the requisite touchstone of reasonable suspicion did not preclude the possibility that the Tribunal could, as here, make findings in the context of considering the discretionary factors that went further than the earlier findings.  This was what it was said to have done. 

Consideration

1. Ground 5 is not made out.  It is the case that read in isolation the Tribunal’s statements that certain matters were not sufficient to alter its decision to exercise its discretion to cancel the visa might seem to suggest that the Tribunal had reached a predetermined view to cancel the visa.  However, when such remarks are considered in context of the decision as a whole (read in light of the remarks in Minister for Immigration and Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 271-272), I am not persuaded that the Tribunal fell into jurisdictional error on the basis contended for in ground 5. First, as the First Respondent submitted the Tribunal correctly set out the applicable law and the approach to be followed in considering whether to cancel a visa under s.109 of the Act (including, relevantly, the need to first decide whether there was non-compliance and then to consider whether the visa should be cancelled, having regard to the prescribed circumstances and other considerations and matters raised by the Applicant).

2. Moreover in each of the parts of the decision where the Tribunal referred to the concept of altering its decision it was considering matters that were potentially or actually favourable to the Applicant.  Thus, it stated that even if it were to accept (contrary to its view about the likely effect of the correct information), that the Applicant might have been granted the visa (on the basis of his overseas experience) despite his provision of a bogus document, this was “not sufficient, either singularly or in combination with other factors, to alter the Tribunal’s decision to exercise its discretion to cancel the applicant’s visa”.

3. While infelicitously expressed, in context this amounted to an expression of the weight to be given to such a factor.  It is not (considered in the context of the Tribunal’s assessment of the factors relevant to the exercise of its discretion) such as to indicate that the Tribunal had predetermined to cancel the visa based on the fact of non-compliance, leaving it for the Applicant to persuade it not to exercise its discretion to cancel the visa such as to amount to an incorrect construction of the statutory provisions in question. 

4. The Tribunal used the same form of words in considering an aspect of the present circumstances of the visa holder.  After accepting certain evidence favourable to the Applicant (in unexceptional language) it addressed the Applicant’s request for additional time to submit a further skills assessment.  It indicated that it was prepared to accept that such an application would be successful and that it “had taken this into account in the applicant’s favour”.  No issue is taken with this approach.  In that context, the subsequent reference to “this” not being sufficient to alter the Tribunal’s decision does not (for the reasons outlined above) establish error of the nature contended for in ground 5. 

5. The same may be said in relation to the Tribunal’s consideration of matters favourable to the Applicant relating to his contribution to the community (that he has a rare blood type and gives blood regularly, donates $40 a month to the Red Cross and donates clothes to charities).

6. Moreover, despite the reference to altering its decision, it is apparent from the decision as a whole that the Tribunal understood and carried out the task of considering whether to cancel the Applicant’s visa in accordance with s.109 of the Act as reflected in its ultimate findings as follows:

   93. Having regard to all of the evidence before it, both separately and cumulatively, and noting each of the mandatory factors set out and discussed above, the Tribunal is satisfied that the non-compliance in this matter was serious.  Notwithstanding the various claims made by the applicant, including in respect of his current circumstances, the Tribunal is satisfied that his visa should be cancelled.   

7. Nor do the other matters raised by the Applicant in the context of ground 5 establish jurisdictional error. Insofar as the Applicant took issue with the Tribunal’s consideration of the likely effect on the decision to grant the visa of the correct information or the genuine document (in paragraph 80 of its reasons for decision), as the First Respondent submitted, and as the Tribunal had earlier observed, the correct information was that the Applicant did not complete any volunteer work experience at Dom’s. It was not necessary for the Tribunal to posit some other factual scenario. Moreover, it went on in its consideration of the discretionary factors to take into account the Applicant’s work experience in India and the possibility he could obtain a skills assessment on that basis. However in the context of the reg.2.41(a) factor the relevant “correct information” was information that was in contrast to what the Tribunal considered to be incorrect information (which was that the Applicant had completed volunteer work experience at Dom’s).  The Tribunal had to consider in this context what would be the position if there was no evidence as to work experience, not whether there might be some other way in which the visa criterion could be met.  It correctly proceeded on this basis. 

8. Insofar as the Applicant took issue with the Tribunal’s statement that it “finds” that the correct information was that the Applicant did not complete any volunteer work experience at Dom’s and submitted that this put it much higher than the anterior factual findings made by the Tribunal, there was no error in the Tribunal’s approach. What it was required to do in the earlier part of its reasons was to determine whether there was a non-compliance with s.103 in circumstances where the touchstone in relation to the concept of a bogus document was that of a reasonable suspicion. It did so.

9. Having found such reasonable suspicion in the context of addressing non-compliance, it was open to the Tribunal to make another finding (as it did in paragraph 77) that for the same reasons that led it to the state of reasonable satisfaction it also found that the correct information was that the Applicant did not complete any volunteer work experience at Dom’s.  Such a finding does not reveal a misunderstanding of the Tribunal’s earlier factual findings.  Moreover in this part of its reasons the Tribunal, correctly, indicated that it had not “accepted” the Applicant’s contrary oral evidence. 

10. The Applicant also submitted that the Tribunal could not make a finding that “having regard to the above, the Tribunal finds that there is no genuine document of relevance to this matter” having regard to the manner in which its finding about non-compliance was expressed.  However the “no genuine document” finding was open to the Tribunal given the absence of any non-bogus skills assessment.  Such finding was distinct from the earlier findings about the basis on which the only skills assessment in evidence was found to be bogus.

11. These matters are not indicative of jurisdictional error on the basis contended for in ground 5 of the application.

12. As jurisdictional error has not been established the application must be dismissed.  

I certify that the preceding one hundred and eighty (180) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  17 May 2016