Dhawan, A.K. v Minister for Immigration & Ethnic Affairs

[1994] FCA 486

4 8 6      9 Y

JUDGMENT No. .L ..,-...

CATCHWORDS

IMMIGRATION - concessional family visa - employment qualification - relevance of educational or trade qualification.

IMMIGRATION - appeal from Immigration Review Tribunal - natural justice - entitlement to a hearing before the Tribunal.

1958, ss 130, 132(6)

Mipration, reg 146(l)(g)(ii)

on Revlew Tribunal (1992) 36 FCR 544

ASHOK KUMAR DHAWAN v. MINISTER FOR IMMIGRATION AND ETHNIC

AFFAIRS

PRINCIPAL

No. NG 414 of 1993

Coram:	Whitlam J
Place:	Sydney
Date:	31 March 1994

RECEIVED
2 7 JUL 1994
FEDERAL CWRT OF

AUBTRAU*

Limited Distribution

FEDERAL COURT OF AUSTRALIA 1 1

NEW SOUTH W-	DISTEICr REGISTRY	1	NG 414 of 1993
1
GENF.RAL DIVISION	1

ASHOK KUMAR DHAWAN

Applicant

M I N I S T E R	F O R
I M M I G R A T I O N	A N D
ETHNIC AFFAIRS

Respondent

Coram:	Whitlam J
Place:	Sydney
Date:	31 March 1994

This 1s an appeal from a decision of the Immigration Review Tribunal ("the

Tribunal").

The applicant appl~ed to the Trlbunal for review of the decision refuslng to grant

a visa to his nephew, Mr Parvesh Dhawan ("the principal"), whom he was sponsoring for migration to Australia. The principal llves in New Delhi, India where he had applied on 8 November 1990 to the Australia H~gh Comm~ssion for a concessional family visa. On

27 May 1993 the Tribunal affirmed the declslon not to grant such a vlsa to the principal.

The Mleratlon Act 1958 and the Mleratlon Reeulatlons, in force at the tlme of the
principal's visa application, provlded for a so-called "points" system to apply to the

concessional famlly class of vrsa sought by him. The "tortuous trail" of this legislative framework was most helpfully descnbed rn eumar v. I m m w tlon Re vlew Trlbunal(1992)

36 FCR 544 by Wilcox J (at 545):

"Section 23(2) of the Act permits the making of regulations for different classes of visas. It provides that, subject to s 28 of the Act allowing suspension of processing of visa applications, '"a petson is entirled to be granred a visa of a particular class if a person sa-

all the prescribed criteria in relation to that class". Regulation I0 establkhes the classes of vkm speciid in sch 2 of the Reguhtions. Item 3 of PI 3 of thar schedule refers to the c o n c d n a l family visa and specijks certain criteria, including, by symbol G, that "the applicant has received the necessary score when assessed in relation to the relevant class of visas under Subdivision B of Divkwn 2 of Parr 2 of rlre Act". This reference fakes the reader back to ss 29-32 of the Act. Sections 29-31 provide for a "points vstem'! Section 32 authotises the Mitz~Qer to specifi from time to time, in relation to a class of visas, a pool entrance mark and a priority mark and, in relation to applications for visas, apass mark Regulation 145 requires

tlrat an applicant for a concessio~ral	family visa have one of the
empkyment qualifxations specif~d	ur pars (a) to (k) of reg 146(1) -

(ranging from 75 down to 10) being allocated depending on

which paragraph applies. Regulation I45 ako refers to other criteria (age, Iarrguage skill, relationship, sponsor citizenship and residence), allocating various pouzts for each of those criteria."

In the present case the assessment by the Trlbunal turned on the question whether

the pr~ncipal met the requirements of the employment qualification specified in

subparagraph (g)(li) of reg 146 (l), namely, that he

"(ii) has an occupation:

(A)	tlrat is the usual occupation of the applicant; and
(B)	entry to which in Australia requires a degree, diploma,
associate diploma or trade cerh~~cate, and
(C)	in respect of wlrrclr the applicant has a degree, diploma, associate diploma or trade certificate, or possesses work experience, assessed by the relevatzt Australian authority as not equivalerzt to Auslraliatr srarrdarris for that occupatiotz.

The prlnclpal clalmed to be employed in Indra as an accountant by a firm called

Dhawan Industr~es. He held a Bachelor of Commerce degree from the University of

Delhl. It was accepted before the Trlbunal that the principal's degree and work

experience were not equivalent to Australian standards for an accountant.

However, the respondent's delegate at the High Commission and the revlew officer had each found that the principal's employment references were false. They had assessed the principal's "points" on the basis that he had no "usual occupation", at all. Accordingly, the applicant's migration agent gave the Tribunal written arguments

together with attested copies of documents from India in order to establish that the principal was employed by Dhawan Industries. The Tribunal arranged for the High

Commlsslon to investigate the material contained in these documents.

The High Commission carried out an investigation and concluded that the

principal was not employed at the time of his vlsa application. A report of that

investigation was given to the applicant. On 6 April 1993 the Tribunal had a preliminary

meeting with the applicant and his migration agent. At that meeting the applicant was

handed a letter notifying him "that you are entitled to ask the Tribunal to arrange a	hearing to take evidence from you and any other person you nominate as a witness!'
The applicant replled in writing the same day that: "I do not think that it is necessary for
the Tribunal to hold a hearing. But I wll be providing further written evidence within the next few days."
By letter dated 27 April 1993 the applicant's migration agent provided further wrltten arguments to the Tribunal supported by copies of additional documents from Indra, some of whlch were attested. The Trrbunal found that the principal "was not
employed by Dhawan Industrres as an accountant for 6 months rn the 2 years immediately preceding [the lodgment of hrs vrsa applrcatlon], and as a consequence he did not have a usual occupation." The Tribunal assessed the principal's polnts on the
basis that he had no "usual occupatron" at the relevant time.
This brief outline of the course of the review by the Tribunal brings me back to the present appeal, in whlch the applrcant acted for himself. The notice of appeal states the question of law to be ra~sed on the appeal as: "Whether the declsion taken under s 34 of the Migratron Act and relevant Mrgratlon Regulatrons and Migration (Review) Regulat~ons is consistent wlth the requrrements of the Admlnlstrative Decisions (Judsial
Review) Act." Thrs is not a very helpful elucldatron of any questlon of law. The grounds stated in the notlce of appeal evidently sought to rely on s 5(l)(a) and (e) and s 5 (2)(a) and (b) of the Admrnrstratrve Decisions (Judlcral Revrew) Act 1977. The position was clarified in correspondence between the partres, and these grounds were argued on the hearing of the appeal.

Rrst, the applrcant submrtted that the Trrbunal wrongly took into account

informatron about the prinapal's employment, whrch had been gleaned from two

telephone calls rnltrated by staff of the Hrgh Commrssron to the sales office and factory of Dhawan Industrres. It was argued that thrs lnformatlon was ~rrelevant as it had been "ohtalned by deceptron" because the callers had not properly rdentlfied themselves as berng from the H~gh Commrsslon. The trle notes ot these calls prepared by the H~gh

Commrssron statf had also concluded rncorrectly that the prlnc~pal was related to a

partner in Dhawan Industries, and it was further submltted that this error (later

acknowledged in the High Commlsslon report to the Tribunal) meant that the Tribunal

should have regarded the calls as irrelevant.

The submissions have only to be stated in order, in my opinion, to be

unhesitatingly rejected. Such employment checks are directly relevant to the question

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whether the principal was employed as an accountant, or at all. Nor does any suggestion of unfairness arise. Both pieces of information and the staff file notes were made available to the applicant's migration agent and were the subject of his submissions to both the review otficer and the Tribunal. The weight attached to all such materlal is, of

course, a matter tor the Tribunal.

Next, the applicant raised a question of statutory construction. He submitted that the issue of the principal's accounting qualifications was of no relevance. This was an argument that had been strenuously urged upon the Trlbunal by the applicant's migration agent in both his written submrssions. He had submltted that any reference to the

only necessary that he had a "usual occupatlon." This submission is quite wrong. The	principal's employment as an accountant was "an irrelevant distraction" and that it was
employment qualrfication in reg 146 (l)(g)(ii) plainly requires that the occupatlon identified by clause (A) be one for whlch an educational or trade qualification of the k~nd
mentroned in clause (B) is required. In this case the occupation nominated by the principal was that ot an accountant. In any event, it does not matter in the present case
slnce the Tribunal obviously determined that the principal was not employed by Dhawan Industries in any occupation.
As rt was required to do, the Tribunal referred in the reasons for its decislon to the evidence on which its findlngs of fact were based. The applicant polnts to three pieces of such evidence and submits that they were not "adequately" taken into account.
The applicant submits that the Trrbunal had "no basrs for disregarding this evidence,
which although listed in the [Tnbunal] decision, must have been disregarded, or largely discounted, for the Tribunal to come to the finding that it dld."

I do not think it 1s necessary to describe the evidence relled upon by the applicant.

It is sufficient to say that it was obviously vital and central to the review by the Tribunal.

It had been submitted wrth the agent's letter ot 27 April 1993 in response to the report

by the High Commission to the Tribunal. However, there was ample matenal before the

Trlbunal upon which it could reject the authenticity of that evidence and reach the conclusion that it did. As I have already indlcated, the inadequacy, and discounting, of evidence (to use the applicant's expressions) are matters for the Tnbunal.

The final ground, of which the applicant had glven notice, was an alleged breach

of the rules of natural justice.	The applicant submitted that the Tribunal should have
held a hearlng in relation to the material submitted with h ~ s	migration agent's letter of
27 April 1993 and "other matters".

This is, in my view, an extraordrnary submission. Not only d ~ d the applicant

expressly state on 6 April 1993 that he drd not think it was necessary tor the Tribunal to

hold a hearing, neither he nor his mrgration agent subsequently requested such a hear~ng.

Section 130(1) of the Act provides that the Tribunal shall glve an applicant for rewew

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an opportunity to appear before it to give evidence. However, the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review - see S 130(2) of the Act; and an applicant appearing before the

Tribunal to give evidence is not entitled to be represented of to examine or cross-

examine any other person - see S 132(6) of the Act. The submission was not elaborated before me to suggest that there were any particular circumstances in relation to the

review before the Tribunal which required that, nobwthstanding the absence of statutory entitlement to a hearing, fairness required that a hearing be arranged by the Tribunal of its own motion.

What I have said is suftic~ent o dispose of the grounds stated in the notice of

appeal.	Although he did not seek leave, the applicant raised two other matters at the
hearing.

The first was the status and effect of the decislon of a revlew officer made on 26 July 1991, the background to which may be shortly explained. The principal's visa

application had initially been assessed by the H~gh Commission staff on 9 November

1990, the day after it was lodged. The princ~pal fa~led to pass the "points" test because

he scored only 20 points for his claimed employment quahficat~on. The applicant sought

internal review of this assessment. A review officer set aside th~s inltial decision and

substituted an assessment on the basls that the principal was entitled to 30 points for his qualificat~on under reg 146(l)(g)(i1). Th~s h~gher score enabled the pr~nc~pal to pass the

pants test. The applicant was Informed that the visa appl~catlon	had been returned to
New Delh~	for further processing.

On 12 August 1991 a letter was sent to the principal from the Hrgh Commission

informing him: "You have been assessed as meeting the eligibility criteria relating to the

visa class for which you have applied. Your application will therefore be approved provided you ... meet health. character and settlement requirements as well as any other

requirements relevant to that visa class." At the same time he was told that the "outstanding requ~rements" rncluded furnishing an employment reference. The principal submitted a letter dated 10 September 1991 from Dhawan Industries certifying his employment as a senror accountant since 1985. The receipt of this letter precipitated the employment checks referred to earlier, which put m train the course of events that led to the refusal of the vlsa applicatton.

The applicant submits that the respondent failed to implement the dec~sions made

by the review officer on 26 July 1991 contrary to s 118 of the Act. The fatal difficulty

with this submission is that the review by the Tribunal, which is the subject of the present appeal, was concerned with a subsequent decision by a different review officer to refuse the visa application. If the applicant had wished to seek relief in respect of the earlier

judicial review application. Such an application would now be very late and would raise	decision, that very decision would need to have been made the subject of a separate	all sorts of discretionary considerations. In any event, 1 should say that I very much doubt any issue estoppel flows from the decision of 26 July 1991 which could prevent a
subsequent factual investigation of the employment clatms made by the principal in the course of finally determ~ning hrs visa appllcat~on. See Mln~ster for Im-ion and

Affarrs v. Kurtovlc (1990) 21 FCR 193.

The second matter rarsedby the applicant, which was not the Subject of the notice of appeal, concerned the role of a Mr Joginder Singh in the investigation conducted by

the High Comm~ssion for the Tribunal. Mr S~ngh was the staff officer who Initiated the

#

employment checks. When requesting investlgatron by the High Commission, the

Tribunal had said "it would also be appreciated if the further investigation could be ...

conducted by an officer other than the officer who conducted the previous investigation."

In fact, Mr Singh did participate sl~ghtly (to corroborate admissions made to another

\

officer) in the further lnvestlgation carried out by the H~gh Commission. This further participation appeared qulte clearly in the report of the High Commission, which

expressly defended the use of such local staff, part~cularly on account of their language skills. Th~s report was, of course, the Subject of the second set of submissions to the Tribunal by the applicant's migration agent. The applicant drd not explain on what basis

Mr Singh's limited role could be said to have vlnated proceedings in the Tribunal, and

I am afraid that I can discern none. Mr Singh was not, of course, the decision-maker. Finally, I should mentlon a point drawn to my attention by counsel for the

respondent. The Tribunal has expressed its finding that the principal was not employed

as an accountant by Dhawan Industries by reference to the definition of "usual

occupation" in reg 146(2), namely,

"usual occupatiott" meatls an occupation that the applicant has engaged in for gartt or reward for a conrittuous period of at least 6 morrtlls during tlte period of 2 years unmediate&precedittg the relevant applicatiotr for a vka or entry permit.

This definition was inserted by an amendment which d ~ d	not commence until 30 April
1991. The expression "usual occupat~on"	was not defined at the tlme the principal lodged
his visa application. Nonetheless, I agree w~th	the submission of counsel for the

respondent that nothing turns on thls expression of its conclusion by the Tribunal. It is qulte clear from the mater~al before the Trrbunal that it found that the principal was not

employed by Dhawan Industnes at any time pnor to lodging h ~ s application.

The appeal IS dismissed wrth costs.

1 certl@ that thrs and the precedrng nlne pages are a true copy of the Reasons for Judgment hereln of the

Honourable Mr Justlce .&P Whltlam.

!

Associate.	.. .
Date 31 March 1994

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The appellant appeared in person

MS Elizabeth Wilklns of munsel appeared for the respondent, instructed by the Australran

Government Solicltor

Date of hearlng	11 March 1994
Date of hearing	31 March 1994