Dhiman v Minister for Immigration
[2012] FMCA 646
•10 July 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DHIMAN v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 646 |
| MIGRATION – Application to review decision of Migration Review Tribunal – error of the nature identified in Singh v Minister – independent basis for the decision not affected by error. |
| Migration Act 1958 (Cth), ss.359A, 476 Migration Regulations 1994 (Cth), regs.2.26, 2.26B |
| Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Thongsuk v Minister for Immigration & Anor [2007] FMCA 655 Uddin v Minister for Immigration and Citizenship [2010] FCA 1281 |
| Applicant: | RAM KISHAN DHIMAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2096 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 10 July 2012 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2012 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant pay the costs of the first respondent fixed in the sum of $5,400.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2096 of 2011
| RAM KISHAN DHIMAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Migration Review Tribunal dated 2 September 2011 affirming a decision of a delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) visa.
The applicant applied for a Class VC visa on 3 March 2009. This is a visa that permits certain people (graduates and holders of certain temporary skilled visas) to remain in Australia temporarily in order to obtain skills and qualifications required for permanent visas.
In his application form the applicant nominated his occupation as cook and the assessing authority as Trades Recognition Australia (TRA). He listed his educational qualifications as a Diploma of Tourism Marketing & Product Development and a Certificate III in Hospitality. He provided transcripts in relation to his studies and other documents in support of his application.
Relevantly, the delegate of the first respondent wrote to the applicant on 13 July 2010 inviting him to comment on information indicating that the documentation he relied on to obtain a positive skills assessment to support his application was fraudulently obtained. The applicant responded by email of 19 August 2010 attaching a statutory declaration of that date, a group certificate and a notice of assessment of income tax for the financial year ending 30 June 2008. He claimed, among other things, that he had worked for Bombay Fusion Restaurant as a cook from 1 January 2008 until the end of the financial year in June 2008 for a total of 900 hours of paid employment and that subsequently he worked as a cook for Crystal Car Wash Café.
The delegate refused the application, finding that the applicant had provided fraudulently obtained evidence of his employment (a work reference) in connection with his application for skills assessment by TRA and that the Departmental investigation indicated he did not complete work experience as a cook at Bombay Fusion as claimed. The delegate found that the information used to obtain the skills assessment required by a criterion for the visa was false or misleading in a material particular and hence that the applicant did not meet the criterion in the then applicable cl.485.223 (subsequently replaced by cl.485.224 and Public Interest Criterion 4020 (PIC 4020)).
The applicant sought review by the Tribunal. Relevantly, the Tribunal wrote to the applicant by letter dated 29 June 2011. It is apparent that this letter was both an invitation to comment on or respond to information under s.359A of the Migration Act 1958 (Cth) and also an invitation to provide additional information by 5 August 2011. In what may be referred to for convenience as the s.359A part of the letter, the Tribunal set out particulars of information on which the applicant was invited to comment or respond including his statement on his visa application that between January 2008 and December 2008 he worked as a cook at Bombay Fusion and his description of his duties as cook; his reliance on his employment as a cook at Bombay Fusion to obtain an assessment of his skills by TRA; and the fact that the Department file contained a record of investigation with respect to Bombay Fusion indicating that information had been received by the Department and TRA that students had been paying large sums of money to the restaurant owner in return for letters and other documents that would support their claims to have worked there. The applicant was advised that another Department (DEEWR) had interviewed the named owner/manager of the restaurant who had provided details of staff employed in the restaurant. The restaurant owner had stated that Bombay Fusion ceased trading on 30 June 2008 and that from 1 July 2008 until 28 February 2009 another restaurant, New Bombay Fusion, operated from the same premises. The owner/manager confirmed the employment of nine staff members in various capacities in the restaurant and stated that a person by the name of Dhiman (no other details provided) had worked as a waiter.
The Tribunal continued:
This information is relevant because the Tribunal may find that you were not employed as a cook at Bombay Fusion for the period claimed. The information may cause the Tribunal to find that you had given, or caused to be given, to the Minister, an officer, or the relevant assessing authority, a bogus document or information that is false or misleading in a material particular in relation to the application for a visa. If the Tribunal so finds, the Tribunal may not be satisfied that you meet Public Interest Criterion (PIC) 4020 and cl.485.226 (sic). You may then not meet the requirements for the grant of the visa for which you have applied.
You are invited to give comments on or respond to the above information in writing.
In addition, under a separate heading, the Tribunal invited the applicant to provide certain information in writing, including “a statement indicating why the qualifications on which [he] relied to meet the 2 year study requirement” for the visa were “closely related to [his] nominated occupation of a Cook” and a copy of his application to TRA. The Tribunal also explained that if it found he had given “a bogus document or information that [was] false or misleading in a material particular” it may find he did not meet PIC 4020(1), but that this requirement may be waived in certain specified “compelling circumstances”. It invited him to provide information he wished the Tribunal to consider in relation to whether there were any compelling circumstances for waiving PIC 4020.
The applicant requested additional time to reply. The Tribunal considered, but did not grant this request, although a Tribunal file note records that while an extension was refused, the applicant was sent an invitation to a hearing on 30 August 2011 and was told that he could submit anything to the Tribunal prior to the hearing.
The applicant unsuccessfully sought a postponement of the hearing. He provided information to the Tribunal and sought to explain in writing how the study of Tourism Marketing & Product Development related to Certificate III in Hospitality Management and attached some supporting information.
In its decision of 2 September 2011 the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a Class VC visa. In reaching that decision the Tribunal had regard to the fact that there are two subclasses within a Class VC visa. There was no claim or evidence to support any reliance on Subclass 487. The substance of the Tribunal decision concerned Subclass 485 which was the subclass relied on by the applicant.
As submitted for the first respondent, it is clear from the Tribunal’s decision that there were two independent bases for the Tribunal’s decision in relation to Subclass 485: first, that the applicant did not satisfy cl.485.213 of Schedule 2 to the Migration Regulations 1994 (Cth), and secondly that he did not satisfy cl.485.224 (albeit the criteria were dealt with in opposite order in the Tribunal reasons for decision).
It is convenient to consider first the Tribunal findings in relation to cl.485.213. Relevantly, as it stood at the relevant time, that criterion required that the applicant satisfy “the 2 year study requirement” in the period of six months ending immediately before the day on which the visa application was made and that each qualification used to satisfy the two year study requirement was “closely related to the applicant’s nominated skilled occupation”. The concept “2 year study requirement” and “skilled occupation” are defined in regulations 1.15F and 1.15I.
The Tribunal found that, as set out in his original application, the applicant relied on completion of two courses of study: the Diploma of Tourism Marketing & Product Development and the Certificate III in Hospitality, in relation to his nominated occupation which was cook. It was satisfied that “cook” was “a skilled occupation” (see Legislative Instrument IMMI 11/034 which was in force at the time of the Tribunal decision). However the Tribunal was not satisfied that the applicant’s Diploma of Tourism Marketing & Product Development was “closely related” to his nominated occupation as a cook.
In reaching this conclusion the Tribunal acknowledged that the Departmental policy then contained in PAM3, as it is described, stated, as the Tribunal put it, that:
the requirement is for the qualifications to be complementary to the nominated occupation and the issue is whether the skill set underpinning the qualification can be used in the nominated occupation. However, the Tribunal [had] formed the view that such policy [did] not reflect the wording of the legislation … [and that] the term ‘closely related’ [was] not interchangeable with, nor necessarily consistent with, being complementary or useful. It requir[ed], in the Tribunal’s view, a much stronger link between the academic qualifications and the occupation than being merely useful. In the Tribunal’s view, the policy [did] not adequately reflect the requirements of the legislation.
On this basis, having regard to relevant authorities, the Tribunal found that the policy was “unlawful and the regulation must prevail”.
The Tribunal had regard to the applicant’s submission that the Diploma course he had undertaken “was very similar, if not identical, to a Diploma of Hospitality Management, that the subjects were the same even if the title of the course was different, and that the Diploma of Hospitality Management [was] considered to be closely related to the occupation of a cook”.
The Tribunal considered this submission to be “misguided”, indicating that the issue was “not whether the qualification completed by the applicant was similar to another qualification which may or may not be closely related”, but rather “whether the qualification that [he] relied on to complete the 2 year study requirement [was] closely related to his nominated occupation”. According to the Tribunal this question did not “envisage a comparison of courses” or the “hypothetical question of whether some other qualification not completed by the applicant”, even if similar, “would be considered as being closely related”.
The Tribunal considered the academic transcript provided by the applicant in relation to the Diploma which set out units of competence including Business and Customer Relationship, Computing for Business Legal Knowledge, Managing Finance, Tourism Destinations, Tourism Products and Services and Workplace Communications. The Tribunal did not consider these areas to be “closely related to the field of cooking and the qualification overall to be closely related to, or designed for, the occupation of a cook”. It had regard to the fact that the applicant had identified specific subjects, such as Monitor Work Operations, Plan and Implement Sales Activities, Perform Office Procedures, Interpret Financial Information, as “being relevant and similar to the subjects offered in a Diploma of Hospitality”, but found that “[w]hether or not such subjects [were] offered in a Diploma of Hospitality [it did] not consider that these areas [had] any relationship, let alone a close relationship, to the tasks performed by cooks”.
In reaching this conclusion, the Tribunal had regard to the tasks performed by a cook as set out in ASCO. It also had regard to the principle “that a broad range of considerations must be taken into account” and found that “it [was] necessary to assess both the nature of the qualifications acquired and the demands of the nominated occupation”. The Tribunal recognised that such a view was expressed by this court in relation to the issue of whether qualifications were “relevant” to a nominated skilled occupation rather than “closely related” (see Thongsuk v Minister for Immigration & Anor [2007] FMCA 655).
The Tribunal concluded that on all the material before it, it was not satisfied that the applicant’s Diploma of Tourism Marketing and Product Development was closely related to the nominated occupation of cook. Hence it was not satisfied that each of the two qualifications relied on by the applicant were “closely related” to his nominated skilled occupation of cook and was not satisfied that the applicant met cl.485.213(b) of the Regulations which contained this requirement.
In addition, as the applicant had not claimed to have the sponsorship required for a Subclass 487 visa he did not meet cl.487.213 of the criteria for the other subclass within Class VC. As the applicant did not meet one of the criteria for the class of visa for which he applied, he could not succeed in his visa application.
The other basis for the Tribunal decision was that the applicant did not meet the criterion in cl.485.224 of the Regulations as it stood at the relevant time. I note in that respect that the solicitor for the Minister has provided the court with copies of the Regulations as in force at the relevant time, including amendments.
Relevantly, as it stood at the time of the Tribunal decision, cl.485.224 required that at the time of the decision the applicant satisfy PIC 4020. In order for the applicant to meet PIC 4020 the decision-maker (in this case the Tribunal) had to be satisfied that there was “no evidence before [it] that the applicant [had] given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular”. Information that is false or misleading in a material particular is relevantly defined in PIC 4020(5) to be:
Information that is: (a) false or misleading at the time it is given; and (b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
The Tribunal found, in essence, that the applicant did not meet PIC 4020 for two reasons. First, the information he had provided in his visa application about when he had worked at Bombay Fusion was inconsistent with information he had provided in the statutory declaration of 19 August 2010 (in particular as to whether he ceased working there in June 2008 or December 2008). The Tribunal considered but did not accept the applicant’s explanation for this inconsistency that he misunderstood the term “financial year”. It found that either the visa application or the statutory declaration contained false and misleading information in a material particular.
On that basis the Tribunal found that the applicant had given or caused to be given to the Minister or an officer or the Tribunal information about his employment as a cook in relation to the application for a visa that was false or misleading in a material particular and hence that he did not meet PIC 4020(1)(a).
Secondly, the Tribunal was not satisfied that the applicant had been employed as a cook at Bombay Fusion as he claimed, having regard to the information obtained during the Departmental investigation, the limited documentary evidence provided by the applicant and concerns it identified in its reasons about the credibility of the applicant’s inconsistent evidence about his claimed employment at Bombay Fusion and at Crystal Car Wash and when such employment occurred. The Tribunal set out the inconsistent evidence and addressed the applicant’s explanations for the discrepancies, but did not find that these addressed its concerns.
The Tribunal expressed concern “about the very limited evidence of employment that the applicant [had] been able to present” and the fact that he “had been unable to present contemporaneous and independent evidence of his employment which … should have been available to him if he was employed as claimed”. It also had regard to the evidence of the owner/manager of the restaurant, in particular his failure to identify the applicant as one of the employees who was employed as a cook and the fact that “his only reference to a person with the same name was a reference to a waiter”.
The Tribunal was not satisfied that the applicant’s group certificate was “probative evidence of his employment as a cook”. Nor did it regard the TRA assessment as conclusive, in that it did not involve any independent checks or confirmation of his employment.
The Tribunal found that the applicant had not been employed at Bombay Fusion as claimed and that the applicant had given information about his employment at Bombay Fusion in his visa application and to the Tribunal that was false or misleading in a material particular. The Tribunal was not satisfied that he met PIC 4020(1).
The Tribunal found no compelling circumstances for waiving PIC 4020. Accordingly the Tribunal was not satisfied that the applicant met the requirements of cl.485.224 (and cl.487.228 which contains comparable requirements in relation to the other subclass of visa within the class of visa for which the applicant applied).
On these bases, the Tribunal affirmed the decision not to grant the applicant a Class VC visa.
The applicant sought review by application filed in this court on 16 September 2011. The grounds of his application are very generally expressed. He claimed that his application for graduate visa 485 was refused. He attached the decision letter and indicated that he wished to file a case against the decision made by the Tribunal and the Department and that he would be providing further evidence during the hearing process. No further clarification or evidence was provided, despite directions being made for the filing of an amended application and affidavit evidence. The applicant had the opportunity today to make oral submissions.
The grounds in the application are not proper grounds of review and in the absence of particulars cannot succeed. Insofar as the applicant seeks merits review of the Tribunal decision (as is apparent from what he said in oral submissions today), merits review is not available in this court. Insofar as he takes issue with the decision of the delegate, this court has no jurisdiction to review that decision by virtue of ss.476(2)(a) and 476(4)(a) of the Migration Act.
Despite the absence of any basis for a challenge of the decision of the Tribunal in the application, the Minister’s submissions addressed in some detail potential issues that arose in relation to the Tribunal decision. The most substantial issue that arises in relation to that decision relates to the Tribunal’s finding that the applicant did not meet the criterion in cl.485.224 (or, for that matter, cl.487.228).
The first respondent conceded that at the time of the Tribunal decision TRA had not been validly specified as the relevant assessing authority for the applicant’s occupation pursuant to reg.2.26B(1) of the Migration Regulations, because no approval had been given by either of the relevant Ministers pursuant to reg.2.26(1)(a), notwithstanding that this has now been remedied by legislative instrument of 28 September 2011 (see IMMI 11/068).
It was conceded that in Singh v Minister for Immigration & Anor [2012] FMCA 145 Driver FM held that the absence of a relevant assessing authority had the effect that a visa applicant was not required to meet the criterion in cl.485.224 and therefore that it was not open to a Tribunal to find that the information provided by an applicant in connection with that visa criterion was false or misleading in a material particular pursuant to PIC 4020. It was acknowledged that in the interests of comity this court should follow that decision unless persuaded or satisfied that it was clearly wrong. There was no submission made that the decision of Driver FM was clearly wrong. Nor am I satisfied on the material before the court and in the absence of any submissions to that effect that the decision of Driver FM is clearly wrong. I intend in the interests of comity to follow that decision.
Relevantly, in this case, as in Singh, the visa criteria applicable at the time of the Tribunal’s decision did not include the criterion in cl.485.214 because no relevant assessing authority had been lawfully approved or specified for the purposes of that criteria (Singh at [68]). That finding must be seen in the context of the incorporation of PIC 4020 within cl.485.214. As indicated, PIC 4020 requires that there be no evidence that the applicant has given information that is false or misleading in a material particular to, inter alia, the Minister or an officer or the Tribunal in relation to the visa application. Driver FM found in Singh that the Tribunal was in error in finding that the information provided by Mr Singh was false or misleading in a material particular in relation to his visa application.
The solicitor for the first respondent acknowledged that there were no circumstances distinguishing this case from the circumstances in Singh for present purposes. The same legislation was in force. On that basis the Tribunal was in error in its finding in relation to cl.485.224.
However it was submitted, and I accept, that in this case there was a separate and independent basis for the Tribunal decision that the applicant did not meet the criteria for a Subclass 485 visa and for the class of visa for which the applicant applied. The Tribunal also made its decision in this case on the basis that the applicant did not meet the criterion in cl.485.213. No error was asserted by the applicant in relation to the Tribunal’s consideration of cl.485.213. The first respondent submitted that in the absence of any such error the court should not grant relief.
In making this submission the Minister addressed whether any error was apparent in the Tribunal’s approach to the words “closely related” and to whether or not it should follow the approach taken in policy in PAM3. However, I am satisfied that, as submitted for the Minister, no jurisdictional error is apparent in this respect.
The Tribunal acknowledged that the then applicable Departmental policy in relation to the concept “closely related” addressed whether the skill set underpinning the qualification was “complementary” and could be used in the nominated occupation. It reached the view that the policy did “not reflect the wording of the legislation” and that “[t]he term closely related [required] a much stronger link between the academic qualifications and the occupation than being merely useful” as referred to in PAM3.
This issue and the same version of Departmental policy in relation to “closely related” was considered by the Federal Court in Prasad v Minister for Immigration and Citizenship [2012] FCA 591. Logan J set out the applicable policy in PAM3 in relation to the requirement that study and the nominated occupation must be closely related. The Tribunal’s paraphrase of the requirements of PAM3 is an accurate reflection of what was contained in PAM3 at that time. It indicated that:
the intention of the “closely related” criterion in cl.485.213(b) [was] to support the policy objective that skilled migrants be “job-ready” for the Australian labour market and make a positive contribution to the Australian economy and society as soon as possible … [and] the “closely related” requirement [was] to ensure that applicants have qualifications compatible with their nominated skilled occupation. Under policy, the critical factor in determining whether a qualification [was] closely related to the nominated skilled occupation [was] whether the skill set/s underpinning the qualification/s are complementary and can be used in the nominated occupation, in terms of both subject matter and the level at which those skills were obtained (Prasad at [4]).
In Prasad, as in this case, the Tribunal member had been of the view that this part of policy was not consistent with and did not accurately reflect the Regulations and did not apply it to his assessment of construction of the relevant regulation. In that case, as in this case, the Tribunal member then used the language of the clause in the Regulations, that is “closely related”, and assessed the content of the course by virtue of consideration of the areas covered and the tasks performed (Prasad at [6]).
In this case, as in Prasad, the Tribunal found that one course was not “closely related” to the nominated occupation. Hence it was not necessary for the Tribunal to assess whether the other course was closely related having regard to its conclusion that there was not the necessary close relationship between one of the courses relied on and the nominated skilled occupation of cook (Prasad at [8]).
Consistent with the approach taken by Logan J in Prasad (and also see Uddin v Minister for Immigration and Citizenship [2010] FCA 1281) the Tribunal did not fall into error in proceeding in the manner in which it did. In Prasad, Logan J approached the construction of cl.485.213(a)(i) “by reference to its subject matter, scope and purpose and the language employed”, and expressed the view that ““closely related” does not bear the meaning set out in the passage…quoted from the PAM”. His Honour pointed out that (at [24]):
“Closely related” certainly does not require an exact correspondence. As used adverbially, closely imports a meaning of “near” in the present context. “Related” requires a relevant relationship between the nominated course of study and the nominated occupation. The construction promoted by the Minister in his manual, although not in this court on appeal, is a more remote relationship than that specified in the regulation.
The same may be said in this case in relation to cl.485.213(b).
I am satisfied that the Tribunal correctly applied the legislation and did not err in its construction of cl.485.213(b). No jurisdictional error is revealed in its understanding or application of the words “closely related”. Those words are ordinary words of the English language used in a non-technical sense. The Tribunal’s conclusion that the facts found by it did not fall within those words was a factual determination that was reasonably open to it on the material before it.
The applicant took issue with the Tribunal’s findings in this respect and repeated in these proceedings the submission he had made to the Tribunal about the similarity between his Diploma course and a Diploma of Hospitality Management. The Tribunal considered that submission. Its findings were open to the Tribunal on the material before it for the reasons that it gave. The applicant’s disagreement with the Tribunal’s factual finding does not establish jurisdictional error.
Nor is jurisdictional error established by the applicant’s assertion that some other applicants have succeeded in meeting this criterion on the basis of the course he undertook or a similar course. Indeed it is well-established that there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact.
I am satisfied that there was no jurisdictional error in the Tribunal’s finding that the applicant did not satisfy cl.485.213 and that this finding provides an independent basis to support its decision.
Before considering the consequence of that view, it is necessary to refer to the other possible difficulty in the Tribunal procedures raised by the Minister and that is the fact that the s.359A letter contains a typographical error in that it referred to cl.485.226 instead of cl.485.224. It is apparent, having regard to the context in which the reference to cl.485.226 appears, that it is no more than a typographical error and it can be inferred that it is clearly intended to be a reference to cl.485.224 which contains the applicable reference to PIC 4020. In contrast, cl.485.226 applies to secondary applicants and there is no suggestion that it is applicable in this case. It is, nonetheless, necessary to consider whether that typographical error has the result that the Tribunal failed to meet its obligations under s.359A of the Migration Act.
Relevantly, s.359A(1) requires the Tribunal to give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review and to ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review and the consequences of it being relied on in affirming the decision that is under review.
In this case the Tribunal gave the applicant clear particulars of the information the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review in a number of dot points that preceded the paragraph in which the relevance of that information was explained and in which the typographical error occurred.
No issue is apparent in relation to the scope or identification of the particulars provided by the Tribunal. Moreover, in describing the relevance of the information to the review and the consequences of it being relied upon, the Tribunal correctly drew to the applicant’s attention the factual relevance of the information as to whether he was employed as a cook at Bombay Fusion for the period claimed, the consequence that the information may cause the Tribunal to find he had given a bogus document or information that was false or misleading in a material particular in relation to his visa application and that if the Tribunal so found, it may not be satisfied that he met PIC 4020, the relevant public interest criterion. It then said, “and clause 485.226” (instead of and cl.485.224) but went on to explain correctly that the applicant may then not meet the requirements for the grant of the visa for which he had applied.
I am not satisfied that there has been a failure by the Tribunal to comply with s.359A of the Act. I note that no authority directly in point in relation to a letter such as a s.359A letter (or its equivalent under s.424A of the Act) was cited for the Minister. The cases cited related to typographical errors in the Tribunal decision – a rather different context. However, in all the circumstances, having regard to the information in question and the whole of the letter, the purpose of such a s.359A letter and the necessary level of particularity, I am of the view that, notwithstanding that there is a typographical error in this letter, such a departure from accuracy is not such as to establish a failure by the Tribunal to comply with s.359A(1) of the Act.
Rather, it is a minor and insignificant departure in the context of all of the other information put to the applicant. It does not go to the substance of the information or the relevance of the information or to the practical consequences of reliance on the information which are accurately specified in the s.359A letter (and see SZMHD and Another v Minister for Immigration and Citizenship and Another (2009) 110 ALD 290; [2009] FCA 712 at [46] – [48] and SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84).
In any event, even if, contrary to my view, one were to take a very strict view of the requirements of s.359A of the Act, as North J pointed out in VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 at [32]–[33], this would not necessarily lead to the result that the decision of the Tribunal must be set aside. In VBAP, which concerned s.424A (the equivalent provision in relation to the Refugee Review Tribunal), his Honour had regard to the fact that (as here) there were independent bases for the decision of the Tribunal in question to which there was no challenge or to which challenge had been rejected.
Relevantly, North J concluded that SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 did not stand for the proposition that if there is a breach of s.424A in relation to one ground upon which a decision was made and there existed one or more other grounds upon which the decision was not or could not be impeached the decision nonetheless fell. The same may be said in relation to s.359A of the Act.
There are two independent bases for the Tribunal decision in this case, namely, that the applicant did not satisfy cl.485.213 and that he did not satisfy cl.485.224. The s.359A letter, or that part of the letter under s.359A, had no relationship at all to the issues relevant to the Tribunal’s decision in relation to the criterion in cl.485.213. It is the case that the applicant was invited to provide information indicating why the qualifications he replied on were “closely related” to his nominated occupation. That was not, however, an invitation to comment on or respond to information under s.359A, but rather an invitation to give information, apparently under s.359 of the Act. The s.359A invitation was unaffected by the minor typographical error which referred to the wrong subclause of cl.485 but, nonetheless, to a subclause that contained public interest criterion 4020.
In all the circumstances of this case, notwithstanding that based on the authority in Singh the Tribunal erred in its consideration of cl.485.224, as no jurisdictional error is asserted or apparent in the Tribunal’s findings that the applicant did not meet the requirements of cl.485.213 that finding provides an independent basis to support the decision of the Tribunal.
In these circumstances it is relevant to have regard to the approach taken by the Full Court of the Federal Court in SZOOR v Minister for Immigration and Citizenship (2012) 127 ALD 1; [2012] FCA 58, in particular by McKerracher J with whom, relevantly, Reeves J agreed while Rares J agreed in the conclusion but stated his own reasons. McKerracher J found at [95] that even if there was a jurisdictional error in the Tribunal decision in issue in that case, it was well-established that “judicial review relief may be withheld if granting it would be futile to the result”. His Honour stated (at [96]) that, “ultimately it [came] down to a question of whether it could be said that the grant of relief could not possibly make a difference to the Tribunal’s eventual deliberations” (see Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54).
His Honour pointed out (at [96]) that “the grant of relief under constitutional writs is a matter for discretion” (referring to the decision of the High Court in Re Refugee Review Tribunal and Another; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57). In Aala, it had been held by the majority that it could not be concluded that the denial of procedural fairness in issue there made no difference to the outcome of the proceedings, but nonetheless the High Court recognised that not every breach of the rules of natural justice would affect the making of a decision.
His Honour also referred to VBAP and to VCAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 1 at [23], in which Gray J had referred to numerous cases in which decisions of Tribunals under the Migration Act had been upheld, notwithstanding error apparent in the Tribunal’s reasons, because those reasons also disclosed that there was “another basis on which the tribunal concerned found against the person applying for a visa”. Similarly, in this case, the reasons disclose that there was a basis on which the Tribunal found against the applicant on which the decision cannot be impeached.
Notwithstanding the error (on the approach taken in Singh,) in the Tribunal’s consideration of cl.485.224 the Tribunal also found against the applicant on the basis that he did not meet cl.485.213 and no error is established in relation to the Tribunal’s findings in that respect.
It may be that in circumstances such as the present it could be argued, as the solicitor for the Minister suggested in oral submissions, that the error of the Tribunal was not a jurisdictional error that affected the review in the sense considered in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11. It is not necessary to determine this issue as I am satisfied in all the circumstances of this case that there is an independent basis for the Tribunal’s decision and that on that basis the decision of the Tribunal should not be set aside. The relief sought by the applicant should not be granted.
Accordingly the application should be dismissed.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 26 July 2012
14
2