Chitrakar v Minister for Immigration

[2014] FCCA 2846

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHITRAKAR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2846

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal – whether Tribunal failed to have regard to relevant evidence – whether Tribunal’s decision was unreasonable – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.92, 93, 94, 95, 95A, 96, 368, 476

Migration Regulations 1994 (Cth), Schedule 2, Schedule 6B, Schedule 6C

Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577
SZNKO v Minister for Immigration and Citizenship [2013] FCA 123
SZRLQ v Minister for Immigration and Citizenship [2013] FCA 566
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

Applicant: PRAMOD CHITRAKAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2396 of 2013

Judgment of: Judge Nicholls

Hearing date: 22 July 2014

Date of Last Submission: 22 July 2014

Delivered at: Sydney

Delivered on: 5 December 2014

REPRESENTATION

Counsel for the Applicant: Mr J Young

Solicitors for the Applicant: G & S Law Group

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 4 October 2013 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $ 5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2396 of 2013

PRAMOD CHITRAKER

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 4 October 2013 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 9 September 2013 which affirmed the decision of the Minister’s delegate to refuse the grant of a Skilled (Residence) (Class VB) visa (“the visa”) to Mr Pramod Chitrakar (“the applicant”).

Before the Court

1. The evidence before the Court was as follows:

   1)The bundle of relevant documents filed by the Minister (“the Court Book” – “CB”).

   2)The affidavit of Pramod Chitrakar of 13 June 2014 annexing a transcript of the hearing before the Tribunal (“T”). No objection by the Minister (see further below).

Application Before the Court

1. The application before the Court contains the following grounds:

   “1. The Second Respondent made jurisdictional error by failing to have regard to relevant evidence submitted by the applicant.

   a. The Second Respondent failed to have regard to Forms 80 and 1221 submitted by the Applicant at the time of his application, which forms detailed the employment of the Applicant with Ash Information Technology Solutions (“Ash”).

   b. The Applicant gave evidence that the Department of Fair Trading informed the Applicant that Ash had collapsed.

   c. The Applicant provided detailed written material relating to his employment with Ash.

   2. The Second Respondent made jurisdictional error by making a decision that was unreasonable or capricious.

   Particulars

   a. The Second Respondent, at [18] and [20], stated that the applicant did not provide details of his relevant employment with Ash ‘on his application form’.

   b. The Applicant had answered the questions asked on the application form.

   c. At the time of submission of the application form, the Applicant submitted Forms 80 and 1221, providing details of his employment with Ash.

   d. In the context of the applicant providing relevant information at the time of the application, the attaching of significance by the Second Respondent exclusively to the application form itself and not the Forms 80 and 1221 submitted at the same time, was capricious and unreasonable.

   e. The Second Respondent made unsupported or stereotypical assumptions, not based on evidence nor having any regard to the facts of the case in assuming that Indian companies would not in any circumstances use Australian businesses to provide technology information services.

   f. The applicant repeats Grounds 3 and 4 below.

   3. The Second Respondent made jurisdictional error by misconstruing the evidence of the applicant on the subject of taxation and what he was told on that subject by Ash and the material submitted by the applicant from Ash.

   4. The Second Respondent made jurisdictional error in that it failed to consider whether the evidence of the witness Shrestha was corroborative of the evidence of the applicant, even if Shrestha did not know the name of the employer or the precise period of employment.”

Background

1. The applicant is a citizen of Nepal. He applied for the visa on 23 December 2011 (CB 1 to CB 14). The Minister’s delegate refused to grant the visa on 31 January 2013 (CB 50 to CB 76). The applicant applied for review to the Tribunal on 15 February 2013 (CB 77 to CB 112). He attended a hearing before the Tribunal on 27 August 2013 (CB 122).

2. The visa for which the applicant applied was a permanent visa available to eligible overseas students who have Australian qualifications or work experience in Australia. While the class of visa contained a number of sub-classes there is no dispute that the relevant subclass was a subclass 885 visa. The criteria for this visa were set out at Part 885 of Sch. 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

3. Clause 885.221 of the Regulations required that the applicant achieve a certain “qualifying score” assessed under s.92 to s.96 of the Act, as at the time of the Tribunal’s decision. The Tribunal was required to conduct a “points assessment” derived as against certain elements as set out at Sch. 6B to the Regulations. If the applicant did not meet the qualifying score as derived from Sch. 6B to the Regulations, the Tribunal was required to conduct another assessment as against the elements at Sch. 6C to the Regulations.

4. Ultimately, the Tribunal found that the applicant did not satisfy either of the relevant “pass” or “pool” marks as set out at Sch. 6B or Sch. 6C to the Regulations. The delegate’s decision was affirmed on the basis, therefore, that the applicant did not satisfy cl.885.221 of the Regulations which was a prescribed criterion for the grant of a subclass 885 visa.

Consideration

1. Before the Court the applicant submitted ([4] of the applicant’s submissions):

   “The critical issue before the MRT concerned the Applicant’s claim that he had been employed in Australia with ASH Information Technology solutions (‘ASH’) from January 2010 to April 2011 as a software and application programmer. Rejection of this claim was critical in Applicants failure before the MRT to satisfy the criteria for a subclause 885 Visa.”

2. The applicant’s claim in this regard was relevant to the Tribunal’s assessment of one of each of the elements in Sch. 6B to the Regulations (see Part 6B.5 – “Australian Employment Qualifications”) and Sch. 6C of the Regulations (see Part 6C.4 – “Australian Employment Experience Qualifications”). The Tribunal considered the first at [14] (at CB 158) and [18] (at CB 158) to [26] (at CB 160) and the second at [38] (at CB 162) of its decision record. Before the Court the applicant’s focus was on Sch. 6B to the Regulations.

3. Ground one asserts that the Tribunal fell into jurisdictional error because it failed to have regard to the relevant evidence submitted by the applicant in relation to this issue. This is particularised by the claim that the Tribunal failed to have regard to certain statements made by the applicant in two forms he submitted with his application for the visa, evidence given by the applicant, and written material, all of which referred to his employment with ASH Information Technology Solutions (“ASH”).

4. These were:

   1)At CB 11:

   “Applicant Australian work experience

   You may be eligible for points if you have been employed in Australia.

   Have you been employed in Australia in your nominated occupation or a closely related occupation for 12 out of the 48 Months immediately before lodging this application?

   Yes”

   [In relation to (1) above the applicant submitted that while other parts of his visa application form required or allowed for more than a “yes” or “no” answer, this was not was required or even allowed for in relation to this question.]

   2)“Form 80” – Personal Particulars for Character Assessment (at CB 28):

   “Give details of your employment history for the entire period since leaving school until now, including periods of unemployment:

   01/2010 – 04/2011 ‑ ASH INFORMATION TECH SOLUTIONS, TAREN POINT NSW AUSTRALIA – IT – SOFTWARE & APPLICATIONS PROGRAMMERS”

   3)“Form 1221” – Additional personal particulars information (CB 34):

   “Give details of your employment for the last 5 years

   From: 4/01/2010 to 6/04/2011

   Name of employer: ASH INFORMATION TECHNOLOGY SOLUTIONS”

5. In short, the applicant submitted that as part of the application process he answered relevant questions indicating that he had relevant work experience in Australia and then provided at least two pieces of relevant detail concerning his employment with ASH.

6. The applicant’s complaint is that in its decision record the Tribunal found that the applicant “…had provided no details of employment or the name of employer” ([14] at CB 158). The Tribunal then went on to say that “…the applicant claimed at the hearing that his employment in Australia was for a computer company, Ash, from January 2010 to mid April/May 2011” ([14] at CB 158).

7. At [18] (at CB 158 to CB 159) the Tribunal repeated the finding:

   “As stated above, the applicant has claimed to have been employed in his nominated skilled occupation or a closely related skilled occupation for Ash Information Technology Solutions. However, the applicant provided no details of this employment on the application form and did not provide any documents to the Department in relation to this employment… At the hearing, the applicant was asked about the different companies whom he claimed to have done work for whilst he was employed in Australia for the computer company…”

8. The Tribunal then stated ([20] at CB 159):

   “…The Tribunal also considers it adverse that the applicant did not provide any details of this employment on the application form and no supporting documents were provided to the Department…”

   [Emphasis added.]

9. The applicant submitted that the Tribunal rejected the applicant’s claim that he had been employed in Australia by ASH. His complaint was that the Tribunal considered it adverse to the applicant, in this consideration, that the applicant did not provide details of his employment in his application form, and (with reference to all of [14] at CB 158 and [18] at CB 158 to [20] at CB 159 to CB 160) that he had not, prior to the hearing, mentioned his employment with ASH. That is, that what the Tribunal found adverse to the applicant was that the first mention of ASH was before it at the hearing. The applicant understood the Tribunal to take the view that it was a “late” claim, and that was held to be a factor adverse to the applicant.

10. In essence, the applicant explained before the Court that the Tribunal drew an adverse inference from the omission of any mention of ASH in the visa application form. He further claimed that the Tribunal made no mention of the applicant’s reference to ASH in other forms provided to the delegate and then found adversely to the applicant by finding that his claim to have worked for ASH arose “late” or, for the first time, at the Tribunal hearing.

11. The applicant relied on Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (“SZSRS”) and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (“SZRKT”) to argue that the failure to refer to the other two forms in this context was a failure to consider important material relevant to the applicant’s case.

12. The Minister’s response was, in essence, first that the applicant’s reading of the Tribunal’s relevant reasoning was not a fair one in a number of ways (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

13. Second, even if the Tribunal did overlook what was in the two additional forms, no jurisdictional error is established because the Tribunal’s finding that the applicant did not work for ASH as a software and application programmer was not based on the information contained in those two forms.

14. The Minister’s first response directs attention to what the Tribunal actually said and found in relation to the matter of ASH. Further, that the Tribunal’s reasoning should be read fairly.

15. First, I agree with the Minister that the references at [14] (at CB 158) and [20] (at CB 159 to CB 160) to the applicant providing “no details” of his employment must be understood in the context in which this was said. That is, the Tribunal found that in his application form the applicant provided no details of employment in Australia or the name of his employer. That, as a statement of fact, is plainly correct when regard is had to the application form itself.

16. Second, and however, it must be noted that before the Court the applicant did not assert that he had provided any such details in the application form itself. His position was that these details regarding ASH were provided in two subsequent forms, which, in effect, should be read as being part of the process of the application for the visa before the delegate. That is, the applicant sought to characterise what was put in documents, also submitted to the delegate, as being part of the application for the visa. That is, that the application consisted of more than just the application form.

17. It is the case, as the Minister submitted, that these two forms were submitted to the delegate some two months after the making of the application, not at the time the application form was lodged, as asserted by the applicant in his grounds, and further, in response to the delegate’s request for “further information” (see CB 16, CB 20 and CB 23). They were separate forms to the “application form”.

18. I agree with the Minister that the Tribunal referred to “the application form” itself and not generally to “the application”. However, the applicant’s argument that the Tribunal overlooked these references because the subsequent forms were part of the application process, does not, on balance, assist him. That is because even if that were the case, the Tribunal was entitled to see the “application form” as being separate to the subsequently lodged forms, even if in some broader sense, they were part of the “application process”. The Tribunal’s reference to the “application form” was literal, and, fairly, should be read as such.

19. Third, the references to his employment in the two subsequently lodged forms were essentially that he worked as a software applications programmer for ASH between January 2010 and April 2011 (and the address of ASH in Australia).

20. Ultimately, the Tribunal understood the applicant’s employment related claim to be that he claimed to have worked for ASH during that time. There was nothing further in the documents lodged, after the lodging of the application form, than what the Tribunal understood to be the extent of the applicant’s claim. The claim the Tribunal considered was that the applicant said he worked at ASH, for the period set out above, as a software and application programmer. In that context, to the extent that the applicant’s ground may involve an assertion that the Tribunal failed to consider a claim expressly made or clearly arising in the circumstances presented then such a complaint would not succeed (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“WAEE”), Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1 (“NABE (No.2)”).

21. Fourth, in this sense also, I agree with the Minister that the Tribunal does not need to refer to every piece of evidence before it. Section 368 of the Act only requires the Tribunal to refer to evidence on which its findings of fact are based and which inform the reasons for its decision. In the current circumstances, given that the references in the two subsequently submitted documents do not add to the applicant’s claims, the failure to refer to the two documents, does not mean that the applicant’s statements in those documents, as to his employment with ASH, were not considered (WAEE and NABE (No 2)).

22. Fifth, and following on from this, the applicant has not, in this light, shown that the relevant assertions in the two documents were not considered by the Tribunal (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 and Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114).

23. Sixth, the applicant also complained that the Tribunal’s reasoning, adverse to the applicant, was that he raised his employment with ASH for the first time at the hearing, and not earlier. In that sense, the argument was that the Tribunal found adversely to the applicant because this was a “late” claim.

24. This again, in my view, is not a fair reading of the Tribunal’s relevant reasoning. It is here that regard must be had to [20] (at CB 159 to CB 160) of the Tribunal’s analysis. The Tribunal did not find adversely to the applicant because of any “late” claim, or even simply, or only, because there was no mention of ASH in the application form. There were a number of reasons here for the Tribunal’s conclusion.

25. The Tribunal understood that the applicant claimed, amongst other things, to have been employed by ASH in his nominated skilled occupation (or closely related to it). It found, on the evidence before it, that it was not satisfied that he had been so employed. The Tribunal’s reasons flowed from its evaluation of the relevant evidence before it.

26. The Tribunal did not accept the applicant’s evidence in explanation as to why he was unable to produce tax documentation in Australia that he did not know that in Australia he was required to lodge a tax return or was obliged to pay “individual” tax. The Tribunal’s reasoning was that it did not accept that, if he had genuinely been employed by ASH, he would not be able to provide financial or taxation records regarding his employment.

27. In addition (“also” – see as emphasised at [15] above) looking at the evidence, the applicant did not provide details in his application form and “no supporting documents were provided to the Department” ([20] at CB 159). Before the Court, the applicant did not contend that this latter reference was a failure to refer to the two subsequently lodged forms. Rather, the applicant understood that this was a reference generally to employment records corroborative of his claimed employment.

28. The Tribunal considered a document provided by the applicant to it which was headed ASH Information Technology Solutions (CB 129 to CB 150). It found that, given its contents, which made no reference to the applicant or his claimed employment, the document could not, or did not, support his claim of employment.

1. The Tribunal also considered, in this context, the applicant’s oral evidence to the Tribunal at the hearing. It found that evidence to be “vague and unpersuasive” that “Indian companies” were outsourcing work to an Australian company where they were required to pay higher fees to Australian workers ([20] at CB 159 to CB 160).

2. The Tribunal also considered evidence given at the hearing by the applicant’s witness, Mr Shrestha. It gave reasons as to why this evidence did not assist the applicant in his claim that he worked at ASH in the capacity he claimed (see further below).

3. Having regard to the totality of the Tribunal’s consideration, its adverse view (“consideration”) of the applicant’s failure to refer to ASH in the “application form” (“literally correct”) is but one of many reasons it did not accept the applicant’s claim to have been employed at ASH in the capacity he claimed.

4. In this context what the applicant had written in the two documents was, as the Minister submitted, not “centrally important” to the Tribunal’s decision making process. They added nothing to the applicant’s claims for the visa. What was found in SZSRS and SZRKT, therefore, does not assist the applicant in these circumstances on establishing jurisdictional error on the part of the Tribunal. The material was not important in the sense explained in the relevant authorities, nor could it have altered the outcome.

5. The review of the Tribunal’s reasoning set out above addresses particulars (a) and (c) to the ground. At particular (b) the applicant asserts that the Tribunal failed to have regard to his evidence that the Department of Fair Trading (“DFT”) had informed him that ASH had “collapsed”.

6. The Tribunal records that the applicant gave this evidence (see [18] at CB 158 ‑ CB 159). I agree with the Minister’s submission, that in the circumstances of this case, having noted the applicant’s evidence, the Tribunal was not required to pursue it further.

7. The issue for the Tribunal was the applicant’s eligibility for points under Part 6B.5 of Sch. 6B to the Regulations. Under the relevant regulatory scheme the applicant was assessed as achieving certain points towards the required “total” if he:

   Part 6B.5    Australian employment qualifications

Column 1 Item	Column 2 Qualification	Column 3 Number of points
6B51	The applicant has been employed in Australia, in the applicant’s nominated skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made	10
6B52	The applicant has completed a professional year in Australia in the applicant’s nominated skilled occupation, or a closely related skilled occupation, for a period totalling at least 12 months in the 48 months immediately before the day on which the application was made	10

1. It must be noted that his evidence concerning the advice from DFT was proffered by the applicant in response to the Tribunal’s insistence at the hearing that it had difficulty in accepting his evidence in relation to his employment, including his inability to provide relevant employment, taxation and financial documentation.

2. In context, the Tribunal’s finding at [20] (at CB 159 – CB 160), and the reference to the applicant’s vague and unpersuasive evidence in “relation to this issue”, was a reference to the issue of the applicant’s claim to have been employed by ASH.

3. In this light, and on balance, the Tribunal’s earlier reference to the applicant’s evidence about what he claimed DFT told him was a part of the evidence that the Tribunal found unpersuasive. I am not persuaded that the Tribunal overlooked this evidence. It was reasonably open to the Tribunal to find that this part of the applicant’s explanation as to why he did not provide relevant documents was not persuasive. In all, ground one is not made out.

4. Ground two asserts that the Tribunal fell into jurisdictional error by making a decision that was unreasonable. The ground contains a long “list” of particulars. However, before the Court the applicant explained or particularised his ground, with reference to the Tribunal’s view, and finding that it did not accept the applicant’s evidence that Indian IT companies would outsource work to Australia companies.

5. In his submissions, the applicant explained his complaint as being that the Tribunal focussed only on the matter of the comparative rates of pay as between India and Australia, to reject the applicant’s evidence that Indian IT companies would outsource work to Australia, instead of also looking at other matters such as questions of the “quality of the service” that may be available in Australia. The applicant’s submissions in support of this ground were comparatively brief. However, the applicant did not formally abandon this ground before the Court.

6. The Minister submitted that in light of Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) (per the plurality) and SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 (“SZOOR”), the applicant must demonstrate that the Tribunal’s decision was unreasonable or illogical. Here it is important to note that, as set out above, the Tribunal’s finding that the applicant was not employed by ASH was based on a number of factors. Importantly, all arose from the applicant’s evidence and the Tribunal’s view of it.

7. The Tribunal did not find (at [20] at CB 159 to CB 160) that Indian companies would not outsource work to Australia, but rather, on a more nuanced evaluation of the applicant’s evidence, that it was “unlikely” they would do so where comparative pay rates were higher in Australia.

8. As the Minister submitted, reasonable minds could differ about this reasoning. However, in these circumstances, it cannot be said to be unreasonable or illogical (see SZMDS at [78] per Heydon J and [130] – [131] per Crennan and Bell JJ and SZOOR at [15] per Rares J and [85] per McKerracher J).

9. When regard is had to the fact that this was just one of many elements in the Tribunal’s relevant analysis, it also cannot be said to make the Tribunal’s ultimate decision illogical or irrational (Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577 per Nicholas J at [84], SZOOR at [85] per McKerracher J, SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [111] –[113] and [125] per Barker J and SZRLQ v Minister for Immigration and Citizenship [2013] FCA 566 at [66] per Yates J). Ground two is not made out.

10. Ground three asserts that the Tribunal fell into jurisdictional error because it misconstrued the applicant’s evidence on the matter of the payment of tax, what he was told by ASH in relation to that, and in light of the “material” from ASH submitted by the applicant to the Tribunal.

11. The ground is not particularised. However, from the applicant’s submissions the assertion of jurisdictional error was said to be that the Tribunal completely misconstrued the applicant’s evidence in this regard, and given that this was evidence that went to an aspect of the applicant’s claim to satisfy the requirements for the visa, then this was of the type of jurisdictional error as explained in such authorities as NABE (No 2).

12. The basis for this proposition arose as follows. The applicant referred the Court to [20] (at CB 159). The Tribunal relevantly said:

    “…The Tribunal does not accept that the applicant would be unaware he was required to lodge a tax return or pay individual tax and that he would be unable to provide any supporting documentation such as financial records or taxation records regarding his employment if he had genuinely been employed for that company…”

13. The applicant also referred to the transcript of the Tribunal hearing at (T10 line 40 to T11 to line 10):

    “[Tribunal]: Well, did you ever lodge a tax return in relation to that employment?

    [Applicant]: For this one – this one, no, ma’am.

    [Tribunal]: Why not? If you were paying $24 an hour – you were paid $24 an hour; why didn’t you lodge a tax return?

    [Applicant]: Because he told me – he told me that he paid the tax by himself, ‘So you don’t need to worry about that.’ He said like that.

    [Tribunal]: Okay. But you know that you ---

    [Applicant]: Yeah.

    [Tribunal]: --- have to pay tax in Australia.

    [Applicant]: I asked for that ma’am. Every time I asked for that he used to say, ‘Oh this, that,’ you know, he used to give different sort of excuses, and even – even he used to give me the cash by coming to different places…”

14. The applicant’s submission was that he did not suggest in his evidence that he was not aware that he had to pay tax in Australia or lodge a tax return. He, therefore, asserted that the Tribunal misconstrued the meaning of the applicant’s evidence when it said that he was unaware of these obligations.

15. I do not agree with the applicant that the Tribunal misconstrued his evidence in this regard. First, and as a preliminary point, on any fair reading of the applicant’s evidence before the Tribunal (as set out above) it was open to the Tribunal to find that the applicant’s evidence on the issue of his claimed employment with ASH “…was vague and unpersuasive…” ([20] at CB 159).

16. The Tribunal plainly asked the applicant why he did not lodge a tax return (T10, lines 44-45). Even accepting for the immediate purpose the applicant’s reading of his evidence (that is that he knew that he had to pay tax and lodge a tax return), then the applicant’s answer that someone else (“he”) told him not to worry about paying tax, because “he” would pay it, provides the basis for the Tribunal’s view of the evidence. This response, as the Minister submitted, did not answer the Tribunal’s question in the sense that it was plainly put. The answer is of such character that it provides the basis for the Tribunal’s view.

17. Second, when the Court took the applicant to [18] of the Tribunal’s decision record (at CB 158 to CB 159) he agreed that this was a fair report by the Tribunal of the evidence given by the applicant at the hearing relating to his claimed employment with ASH in general, and in relation to tax returns, in particular:

    “…He stated that he has no tax documentation and he did not lodge a tax return during the period he worked for the Australian company because he told by the owner that that he would take care of all the tax…”

18. In my view, and in light of this, what is impugned by the applicant now (at [20] at CB 159 to CB 160), on a fair reading, does not represent some misconstruction of the applicant’s evidence.

19. I would fairly read the impugned part of [20] (at CB 159 to CB 160), for the purposes of ground three as follows. That part of [20] (at CB 159 to CB 160) is not the characterisation of the applicant’s evidence, which the Tribunal understood (as set out at [18] at CB 158 to CB 159), but was the Tribunal’s conclusion and reasons as to why it did not accept the applicant’s answer, or explanation, as to why he did not pay tax or lodge a tax return.

20. That is, when fairly read, the Tribunal did not accept that the applicant was unaware of the obligation to lodge a tax return and pay tax. This was a proposition put by the Tribunal to the applicant at the hearing. In this light, the Tribunal was not satisfied with his explanation as to why he had no supporting documentation. The Tribunal reasoned further that in these circumstances the absence of such documentation further brought into question the genuineness of the applicant’s claim to have been employed by ASH. This was reasonably open to the Tribunal on the evidence before it. Ground three is not made out.

21. Ground four asserts jurisdictional error on the part of the Tribunal because it failed to consider whether the evidence of the applicant’s witness, Mr Shrestha, was corroborative of the applicant’s evidence that he was employed by ASH.

22. Before the Court, the applicant directed attention to that part of [20] (at CB 159) of the Tribunal’s decision record dealing with Mr Shrestha’s evidence:

    “…The Tribunal is also not satisfied that the fact that Mr Shrestha may have met the applicant for lunch on some days establishes that he has any knowledge of the applicant’s claimed employment. The Tribunal is, therefore, not satisfied that the Mr Shrestha’s evidence assists the Tribunal to be satisfied of the applicant’s employment, particularly given that Mr Shrestha did not know the name of the company or the period of the applicant’s employment…”

23. The applicant’s argument was that the Tribunal’s statement that Mr Shretha’s evidence did not assist it, because of the limitations in the evidence, was an expression of a proposition that the evidence was not capable of being corroborative evidence because of its limitations. At best, I understood the assertion of legal error to be that the Tribunal was making an erroneous statement as to the applicable law. That is, that the evidence cannot be considered as corroborative.

24. As set out above, the applicant’s affidavit of 13 June 2014 (filed on 18 June 2014) annexed what was said to be a “true copy of the Transcript of Migration Review Tribunal hearing”. The transcript attached is 16 pages in length. There is nothing in that transcript purporting to be a transcription of the evidence given by Mr Shrestha. Nor was any satisfactory explanation in this regard proffered before the Court. [I note that the copy was e-filed and the electronic copy held by the Court contains 16 pages.]

25. In any event, while the applicant’s written submissions make reference to “T20 to T21” (see [22] of the applicant’s written submissions), before the Court the applicant sought to press and explain his ground with reference only to [20] (at CB 159 to CB 160) of the Tribunal’s decision record.

26. What is set out at [20] (at CB 159 to CB 160), relevantly, is the Tribunal’s assessment of Mr Shrestha’s evidence. The Tribunal records the evidence given by Mr Shrestha earlier in its decision record ([18] at CB 158 - CB 159):

    “…The applicant’s friend, Mr Shrestha, told the Tribunal that he met the applicant when he was working for an Information Technology company. He does not know the applicant’s exact period of employment but knows it was 2010 or 2011. He does not know the name of the company, but knows that it was a computer/information technology company.”

27. I do not agree with the applicant that the Tribunal misdirected itself as to the relevant law to be applied. Mr Shrestha gave certain evidence in support of the applicant’s claim that he worked at ASH in a particular occupation. On what is before the Court, the nature of that evidence was that Mr Shrestha, a friend of the applicant, met the applicant while the applicant was working for an IT company. He did not know the period of employment other than it was in 2010 or 2011, he knew it was a computer company, but did not know its name.

28. Relevantly, what the Tribunal expressed (at [20] at CB 159 to CB 160) was its evaluation of this evidence, and its assessment that given the nature of that evidence it was not satisfied that it assisted in determining the question of the applicant’s claimed employment in Australia.

29. On a fair reading of the Tribunal’s reasoning it is clear that the Tribunal did not approach the evaluation of Mr Shrestha’s evidence with any predetermined view that Mr Shrestha could not provide corroborative evidence. Rather, the Tribunal reasoned that, given the limitation of that evidence, it could not be satisfied that the evidence was of assistance in the resolution of the particular issue to be determined. This was a finding reasonably open to it on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).

30. As the Minister submitted, the applicant’s ground is no more than a disagreement with the Tribunal’s reasoning and is a complaint about the merits of this part of the Tribunal’s decision. It seeks impermissible merits review (Wu Shan Liang). Ground four is not made out.

Conclusion

1. None of the applicant’s grounds reveal jurisdictional error. The application should be dismissed. I will make an order accordingly.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  5 December 2014