Duggal v Minister for Immigration

[2015] FCCA 1630

FEDERAL CIRCUIT COURT OF AUSTRALIA

DUGGAL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1630

Catchwords:
MIGRATION – Application for Review of the Decision of the Migration Review Tribunal – whether Tribunal was unreasonable – whether Tribunal failed to lawfully exercise its discretion – no jurisdictional error – application dismissed.

Legislation:

Australian Constitution 1901 (Cth), s.75

Migration Act 1958 (Cth), ss.357A, 361, 363, 422B, 476

Migration Regulations 1994 (Cth), Schedule 2, Schedule 4

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280
Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640
Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908
Burton v Minister for Immigration & Citizenship [2008] FCA 1464
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12
Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427

Applicant: HARNEET DUGGAL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 940 of 2014

Judgment of: Judge Nicholls

Hearing date: 5 May 2015

Date of Last Submission: 5 May 2015

Delivered at: Sydney

Delivered on: 17 June 2015

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Kinslor Prince Lawyers

Counsel for the Respondents: Mr P Knowles

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application made on 7 April 2014 and amended on 5 May 2015 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 940 of 2014

HARNEET DUGGAL

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 7 April 2014 and amended on 5 May 2015 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 6 March 2014 which affirmed the decision of the Minister’s delegate to refuse a Skilled (Provisional) (Class VC) visa (“the visa”) to Mr Harneet Duggal (“the applicant”).

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). Both parties filed written submissions in this matter. Both the submissions set out the relevant background in terms which, in my view, are consistent with the evidence. It is convenient to note, and adopt, the applicant’s submissions as an explanation of the background for the purposes of this judgment ([2] – [16] of the applicant’s written submissions):

   “[2] The applicant, Mr Duggal, applied for a Skilled Graduate (Temporary) Visa, in September 2009. He had sought to satisfy the requirements of subclass 485 (CB 1-11).

   [3] To meet cl. 485.221(1) he needed a Trades Recognition Australia (TRA) assessment of his skills. In support of his application for that assessment he gave TRA a work reference under the letterhead of the ‘Bombay Fusion’ Restaurant which stated that he had worked voluntarily for 20 hours a week from 16 September 2007 to 9 August 2008 as a cook and had amassed 900 hours work experience. The letter was dated 14 August 2008 and was signed by the ‘manager’. The signature appears to be ‘Bhinole’ or similar (CB 62). That letter was in turn used to obtain TRA skills recognition as a ‘cook.’ The TRA document is dated 30 August 2008 (CB 67-8) and was given to the Department in support of the visa application.

   [4] On 13 July 2010 an officer of the Minister’s Department wrote to the applicant inviting him to comment on information to the effect that documents submitted to TRA had been fraudulently obtained, which would mean that he did not meet cl. 485.223 as it then stood. That clause required that no evidence had become available that information given or used, inter alia, to obtain a skills assessment was false or misleading in a material particular (see CB 70-71). Mr Duggal contacted the Department, and in an email dated 27 July 2010 asked what information he could provide, as all his original documents were with the TRA? (CB 78).  There is no record of any advice being given to him.

   [5] On 10 August 2010 the Department received a request for withdrawal of the applicant’s visa application. The ‘request’ was signed by Mr Duggal but not dated (CB 79). Two days later Christopher Levingston, a solicitor and migration agent emailed the Department conveying Mr Duggal’s instructions to withdraw the application to withdraw. He also sought details of the information said to come within Cl. 485.223 (CB 80). Mr Levingston attached a Form 956 to that email (CB 81-84). The Department replied on 10 September 2010 with information to the following effect, and invited comment hereon

   
   

   (CB 105-106);

   1) On 17 May 2010 the Department undertook investigations which raised concerns as to the applicant’s employment with ‘Bombay Fusion’.

   2) As part of this investigation Departmental officers met with the ‘proprietor’ named as ‘Prithvi Singh’ and conducted checks on work references. Mr Singh was unable to identify the applicant or confirm that he had undertaken work at ‘Bombay Fusion’.

   3) During the investigation Mr Singh checked his business records and advised that to the best of his knowledge the applicant had not completed 900 hours work experience at Bombay Fusion.

   [6] On 3 October 2010 Mr Levingston sought access to all adverse information arising out of the Department’s interview with the ‘proprietor’ of the Bombay Fusion Restaurant on 17 May 2010, and a record of that interview (CB 127-129). On 4 October 2010 he replied by email to the Department’s invitation of 13 July 2010 citing the following difficulties with the Department’s information (CB 113-115),

   1) ‘Prithvi Singh’ was not known to Mr Duggal.

   2) The proprietor of ‘Bombay Fusion’ was at all relevant times female.

   3) The work reference submitted to TRA by Mr Duggal was not signed by the ‘proprietor’,

   4) Notwithstanding the interview Mr Duggal continued to hold a valid skills assessment.

   [7] In 2011, before the Minister’s delegate made his decision on Mr Duggal’s application, cl. 485.224 of Schedule 2 of the Migration Regulations was amended to insert a requirement that an applicant who sought to come inter alia within Part 485 of Schedule 2 had to satisfy PIC 4020. That amendment applied to applications for visas made, but not finally determined before 2 April 2011 (Migration Amendment Regulation No. 1 of 2011, Reg 5 and Sch 3(4)). As amended, cl. 485.224 stated;

   485.224     The applicant:

   (a)     satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4007, 4010, 4020 and 4021; and

   (b)     if the applicant had turned 18 at the time of application — satisfies public interest criterion 4019.

   [8] Public Interest Criterion 4020 (cl. 4020 of Schedule 4) stated, as relevant;

   1) There is no evidence before the Minister that the applicant has 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 in relation to:

   (a) the application for the visa; or

   (b) a visa that the applicant held in the period of 12 months before the application was made.

   [9] A ‘bogus document’ was defined in Migration Regulation 1.03 as having the same meaning as in s. 97 of the Migration Act, that being;

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

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

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

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

   [10] Mr Duggal’s visa application was rejected on 14 November 2012 (CB 143-152), apparently without any action being taken on the application for access to documents. In essence the delegate relied on the matters put to Mr Duggal in the letter dated 10 September 2010 (CB 150). He also, incorrectly, stated that Mr Duggal’s agent had not responded to the invitation to comment (CB 150.6). The conclusion was that the applicant did not meet cl. 485.224(a) as he did not satisfy PIC 4020 (CB 150.10).

   [11] The application to the Tribunal was lodged on 3 December 2012 (CB 154-164).

   THE MATTER BEFORE THE TRIBUNAL

   [12] On 4 September 2013, after the matter had been set down for hearing, Mr Levingston sent the Tribunal a list of four questions about Prithvi Singh and whether there was any information specifically adverse to Mr Duggal (CB 197-8). He followed this with a request that the Tribunal require the attendance of Prithvi Singh at hearing to give evidence of ‘her knowledge’ of facts and circumstances related to the applicant’s voluntary work at Bombay Fusion (CB 209). The Tribunal responded by advising that the questions that he had posed on 4 September 2013 would not be answered prior to the hearing and that the Tribunal would not summons Prithvi Singh. Mr Levingston complained vehemently about this (CB 216-7).

   [13] Five days later, on 9 September 2013 the Tribunal summonsed the Department to produce records of interview between investigators and Prithvi Singh (aka Bahadur Singh) and statements provided by him related to the applicant’s employment (CB 200). The immediate reply to the summons is at CB 213, and was to the effect that Prithvi Singh did participate in an interview on 17 May 2010, but that the applicant was not mentioned therein. There was no record of a further interview or of him providing a statement. The record of interview with Prithvi Singh in the form of a transcript was provided to the Tribunal
   (CB 222-299), but under a Certificate made pursuant to s. 375A of the Migration Act (CB 221). The effect of the certificate was that neither Mr Duggal nor his advisors were given access to the transcript and so were not able to compare its contents against what was said by the Tribunal to be in it. Aspects of what was and was not said by Mr Singh are integral to Mr Duggal’s application for review.

   [14] On 3 October 2013 the Tribunal wrote to Mr Levingston confirming that it would not require Prithvi Singh to give evidence. It continued that if the applicant wished to provide evidence from Mr Singh it would of course consider that evidence. It may be noted that Mr Levingston had earlier written, on 4 October 2010 (CB 113-5) that Prithvi Singh was unknown to the applicant.

   [15] The Tribunal issued an invitation to comment on information of 28 October 2013 (CB 314-316). That cited the investigation into the Bombay Fusion Restaurant and the interview with Mr Singh (who was referred to as the chef at Bombay Fusion) in which Mr Duggal was not identified as one of the people who worked with him, or in particular as the one person who worked with him as a chef.

   [16] Mr Levingston replied (CB 318-320) and in the course of doing so referred to inter alia;

   a) The inconsistent information given to the applicant as to Mr Singh’s name (Prithvi or Bahadur or either or both);

   b) The inconsistent information as to Mr Singh being the proprietor of Bombay Fusion, or the chef.

   c) The recently disclosed allegation that Bombay Fusion closed on 30 June 2008 and another restaurant, the ‘New Bombay Fusion’ opened the following day.

   Mr Levingston asked for assistance in identifying the providence of this information, and a clarification of it. In the circumstances Mr Duggal declined the Tribunal’s invitation to an oral hearing.”

   [See also the Minister’s submissions at [2] – [9].]

2. The Tribunal’s decision record is reproduced at CB 327 to CB 336. The Minister’s written submissions provide a useful and fair summary of the decision record and some further relevant background ([10] – [20] of the Minister’s written submissions):

   “[10] In a further letter of 10 September 2013, the Applicant’s migration agent requested the Tribunal to ‘exercise powers under section 361(2) of the Act to require the attendance of Prithi (sic) Singh to give evidence’ (CB 209).

   [11] On 1 October 2013, the Tribunal contacted the Department of Immigration and Border Protection (the ‘Department’) to ask whether Prithvi Singh was still in Australia. The Department responded by stating that the information should be available to the Tribunal, and that it could not lawfully disclose the information (CB 304-305).

   [12] On 3 October 2013, the Tribunal replied to the letter of 10 September 2013 from the Applicant’s migration agent. The Tribunal indicated that it did not propose to take steps to require the attendance of Prithi (sic) Singh at the hearing, but that if the Applicant wanted to lead evidence from Mr Singh such evidence would be considered (CB 309).

   [13] In response to that letter, the Applicant’s migration agent sent a letter to the Tribunal dated 8 October 2013. The letter complained about the decision not to require the attendance of the Mr Singh, and stated that the evidence provided by Mr Singh was not ‘credible’. The letter indicated that the Applicant does not intend to attend the hearing on 10 October 2013 and requested the Tribunal to make its decision on the papers (CB 310-311).

   [14] On 28 October 2013, the Tribunal sent the Applicant a letter pursuant to s. 359A of the Act. The letter summarised relevant information obtained during the interview with Mr Singh, but did not attach the transcript of the interview. (CB 314-317).

   [15] In response to the s. 359A letter, the Applicant’s agent sent a letter to the Tribunal dated 11 November 2013. In that letter, the agent drew attention to the fact that inconsistent information had been given as to the first name of Mr Singh and his role at the Bombay Fusion Restaurant (CB 318-320).

   DECISION OF THE TRIBUNAL

   [16] The Tribunal, in reasons published on 6 March 2014, affirmed the decision of the Delegate (CB 327-326).

   [17] The Tribunal found that the Applicant did not satisfy PIC 4020 because the skills assessment provided by TRA was a bogus document (CB 335 at [42]). The Tribunal gave detailed reasons in support of this conclusion.

   [18] The Tribunal noted that the Applicant did not attend a hearing and therefore the Tribunal was unable to discuss with him his work at Bombay Fusion Restaurant. The Tribunal also said that the Applicant had provided no evidence of his work at the Bombay Fusion Restaurant (apart from the work reference provided to TRA). In particular, the Applicant had not responded to the Tribunal’s s. 359A letter except through submissions made by his migration agent (CB 331 at [27] and CB 334 at [37]).

   [19] The Tribunal found that, if the Applicant had worked for 900 hours at the restaurant, even on a voluntary basis, the chef of the restaurant would have been able to identify the Applicant (CB 33 at [34]). The Tribunal indicated that it had some doubts about parts of the evidence Mr Singh provided in his interview. However, in the absence of any other contradictory evidence it was prepared to accept the evidence given by Mr Singh during his interview (CB 334 at [37]).

   [20] In its reasons for decision the Tribunal referred to its letter to the Applicant’s agent of 3 October 2013, whereby it indicated that it did not propose to require Mr Singh to give evidence (CB 329 at [11]). It did not provide any reasons for its decision not to require Mr Singh’s attendance in its reasons for decision, nor were any provided in the letter of 3 October 2013.”

Application before the Court

1. The two grounds of the amended application before the Court are in the following terms:

   “1. The Tribunal’s decision not to summons Prithvi Singh to give evidence at hearing was unreasonable in the legal sense.

   Particulars

   a) Mr Singh had given an interview to officers of the Department of Education, Employment and Workplace Relations (DEEWR) a transcript of which;

   (i) Was before the Tribunal; but

   (ii) Access to it was denied to the applicant on the basis of a s.375A certificate.

   b) The Tribunal relied of parts of the transcript of the DEEWR interview to disclose information to the applicant for comment in a s. 359A letter dated 28 October 2013.

   c) That information could not be addressed by the applicant other than by having Mr Singh present at a Tribunal hearing to answer questions.

   d) The Tribunal itself had reservations about evidence given by Mr Singh to the DEEWR investigators.

   e) Those reservations could only be resolved, or confirmed, by Mr Singh’s presence at a Tribunal hearing.

   f) As chef at the relevant restaurant(s) Mr Singh would have been in a unique position to give evidence as to whether and to what extent the applicant worked there.

   2. The Tribunal failed to lawfully exercise its discretion under s. 363(3)(a) of the Migration Act.

   Particulars

   a) The Tribunal’s failure to summons Mr Singh to appear before it was not ‘fair and just’ within the meaning of s.357A(3).

   b) The applicant repeats particulars (a) to (f) inclusive of ground 1 above.”

Consideration

1. Ground one asserts that the Tribunal’s decision not to summon Prithvi Singh to give evidence at the hearing was unreasonable in the legal sense.

2. To be granted the visa, amongst other criteria, the applicant was required to meet the criterion set out at cl.485.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”). This criterion required that the applicant meet the requirements of Public Interest Criterion (“PIC”) 4020 of Schedule 4 to the Regulations. The Tribunal ultimately found that he did not, and affirmed the delegate’s decision on this basis ([48] – [50] at CB 335).

3. As set out above, in applying for the visa, the applicant had nominated “cook” as the relevant occupation. He claimed to have worked at the Bombay Fusion Restaurant, and the New Bombay Fusion Restaurant, and had a total 900 hours work experience at both restaurants. The Tribunal found that a Mr Prithvi Singh had been the chef at the restaurants. In an interview with the officers of the Department of Education, Employment and Workplace Relations on 17 May 2010 (CB 222 to CB 299), Mr Singh gave evidence that the applicant had not completed 900 hours work experience. He did not identify the applicant as a person who had worked at the restaurant.

4. In support of his application for the visa the applicant had provided a skills assessment certificate to the Minister’s department, from the Trades Recognition Authority (“TRA”). This assessment was based on the evidence provided by the applicant that he had worked those hours. The Tribunal found he had not. Further, it found that the document was bogus, and that the applicant had provided it in support of his visa application for the purpose of meeting cl.485.221 of the Regulations. The applicant did not meet PIC 4020 of the Regulations and therefore did not satisfy cl.485.224 of the Regulations. The Tribunal affirmed the delegate’s decision on that basis.

5. In that context, and as set out above, ground one of the amended application asserts that the Tribunal’s decision not to summon Mr Prithvi Singh to give evidence at the Tribunal hearing was unreasonable.

6. It is to be noted that the Tribunal invited the applicant to attend a hearing. He submitted that his decision not to attend was prompted by the Tribunal’s failure to summons Mr Prithvi Singh. Ground one is concerned with the claim that the Tribunal’s failure to exercise its discretion to summons Mr Prithvi Singh was an unreasonable decision in the legal sense.

1. The applicant relied on the principles set out in Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 (“Li”) and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 308 ALR 280 (“Singh”) to make good this proposition.

2. Before the Court the applicant made clear, with reference to the authorities, that his complaint was one of unreasonableness, rather than irrationality (Li at [30]). Further, that the consideration of whether the Tribunal’s decision was unreasonable “…is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process” and “…whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law” (Li at [105]). The applicant also drew attention to Singh, in particular at [47], and also to [42] and [48], in explanation as to how this Court should proceed in light of Li.

3. The Minister did not dispute that the Tribunal’s power to summon, or not summon, a person to appear at a hearing and give evidence is subject to the condition that such a power be exercised reasonably.

4. The Minister also drew attention to the summary of the relevant principles as to unreasonableness, as set out in Minister for Immigration and Border Protection v Pandey [2014] FCA 640; (2014) 143 ALD 640 (per Wigney J) (see summary at [29] of the Minister’s written submissions):

   “(a) The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63], [88]; Singh at [43].

   (b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].

   (c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or ‘plainly unjust’: Li at [28], [110]; Singh at [44].

   (d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the

   
   

   decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].

   (e) Regard can also be given to the outcome of the decision: whether the ‘decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law’: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45];

   (f) The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the Tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].

   …

   (j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].”

5. The Tribunal has the statutory power to summons a person who is in Australia (s.363(3)(a) and s.363(4) of the Act). The statutory framework for this power is as follows. Section 361(2) of the Act provides that within seven days of receipt of the invitation to a hearing an applicant may give the Tribunal written notice that the applicant wants the Tribunal to take evidence from a person named in the notice. The Tribunal is obliged to consider the notice, but is not required to comply with it (s.361(3) of the Act). The Tribunal has no obligation to summons a person to give evidence (Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908, Burton v Minister for Immigration & Citizenship [2008] FCA 1464 (“Burton”) and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 (“SGLB”)).

6. The following paragraphs of the Tribunal’s decision explain events leading to the Tribunal’s decision not to summon Prithvi Singh ([5] at CB 328 to [12] at CB 329 and [14] at CB 329):

   “[5] On 10 September 2013, the Tribunal received a letter from the Mr Levingston requesting that the Tribunal exercise its powers under s.361(2) of the Act to require the attendance of Prithvi Singh to give evidence. The letter also enquired when a response would be received to the list of questions in the letter dated 4 September 2013.

   [6] On 16 September 2013, an officer of the Tribunal contacted Mr Levingston and informed him that the questions raised in his letter dated 4 September 2013 would be discussed at the hearing as is the usual practise.

   [7] On 16 September 2013, the Tribunal received a letter from Mr Levingston stating that he had been informed that the questions in his letter dated 4 September 2013 would not be answered prior to the hearing and the Tribunal would not issue a summons to Prithvi Singh. The letter raised concerns in relation to efficiency and fairness.

   [8] On 17 September 2013, an officer of the Tribunal left a telephone message for Mr Levingston and did not receive a response. On 20 September 2013, an officer of the Tribunal again attempted to contact Mr Levingston by telephone and was unable to do so. She left a message for him to the effect that the Tribunal Member was on leave until the end of September 2013 and would consider his request to summons a witness on her return from leave.

   [9] On 23 September 2013, the Tribunal received a letter from Mr Levingston requesting a response to his facsimile transmission dated 10 September 2013 in relation to his request to summons a witness. On 23 September 2013, an officer of the Tribunal sent Mr Levingston an email and again informed him that the Tribunal Member was on leave until the end of the month and would respond to his request to summons a witness on her return from leave. On 23 September 2013, the Tribunal received an email from Mr Levingston indicating that there was a typographical error in his facsimile transmission and that he had not received a response to his email dated 19 September 2013. The Tribunal did not receive an email from Mr Levingston on 19 September 2013.

   [10] On 23 September 2013, an officer of the Tribunal sent Mr Levingston a further email to inform him that the Tribunal had not received an email from him on 19 September 2013. The Tribunal officer again informed him that the Tribunal Member was on leave on 16 September 2013, would be on leave until the end of the month and would respond to his letters on her return from leave.

   [11] On 3 October 2013, the Tribunal wrote to Mr Levingston and informed him that the Tribunal had regard to his request to require the attendance of Prithvi Singh to give evidence at the hearing on 10 October 2013 and did not propose to do so. The Tribunal informed him that if the applicant wished to provide evidence from Prithvi Singh, the Tribunal would consider that evidence.

   [12] On 8 October 2013, the Tribunal received a letter from Mr Levingston. It indicated that the applicant did not propose calling Prithvi Singh to give evidence to support his case. It stated that the applicant relies on his skills assessment made by TRA and the materials tendered to TRA in support of that assessment. It stated that the applicant completed the voluntary work experience for the period claimed and was directly engaged by the person making the reference. It stated that the applicant was not employed by Prithvi Singh who was not, at the relevant time, the proprietor of the business. It stated that there is no requirement which requires that work experience be obtained by ‘employment’ as opposed to voluntary unpaid work experience.

   …

   [14] The letter dated 8 October 2013 from Mr Levingston also indicated that the applicant did not intend attending the hearing and requested that the Tribunal proceed to make a decision ‘on the papers.’ Accordingly, the hearing scheduled on 10 October 2013 was cancelled.”

7. It is to be noted that in the current case the Tribunal did not give any reasons in its decision record as to why it refused the applicant’s request to summons Prithvi Singh. Nor is there any other evidence before the Court as to any other proffered explanation.

8. In these circumstances what the Full Court said in Singh at [45] is instructive for this Court:

   “In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. This was the position in, for example, Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353: see at 359-360. Where there are reasons, and especially where a discretion is being reviewed, the court is able to follow the reasoning process of the decision-maker through and identify the divergence, or the factors, in the reasons said to make the decision legally unreasonable.”

9. In essence, I understood the applicant’s argument to be that there was a factual “dispute” between Mr Singh’s evidence and the applicant’s claims. That without Mr Singh present at the hearing to give evidence, the reliability of his evidence (given at the interview) could not be tested. The Tribunal’s decision not to summons Mr Singh was said to be unreasonable because it chose not to take the opportunity to test that evidence, but simply made a “guess” as to its reliability. The argument is that in circumstances where Mr Singh was available to be tested, the Tribunal’s conduct was said to be “outside the range of possible justifications” for not exercising the discretion.

10. A point of contention between the parties before the Court was the applicant’s description of there being a “contest” of evidence between that of Mr Singh, and the applicant, and that this, therefore, required Mr Singh’s presence at the hearing such that the reliability of his evidence could be tested.

11. The Minister submitted that, as a factual matter, there was no such contest. This was said to be because the applicant had never made a statement himself to the Tribunal (or for that matter to the delegate) on the central issue of whether he worked the 900 hours or not. That is, there was no contest between the oral evidence of Mr Singh as recorded at the interview and any evidence from the applicant from which the “contest” could be said to derive. The issue for the Tribunal’s consideration arose from documents provided to the TRA which led to the skills assessment made by the TRA. It was that document that the delegate found to be bogus (see CB 150).

12. The applicant was put on notice by the Tribunal, by way of its letter of 28 October 2013 (CB 312 to CB 317), about the information obtained from Mr Singh at the interview with departmental officers. He was given the opportunity to comment or respond. While the applicant’s representative replied to that letter (CB 318 to CB 320), that reply focussed, in essence, on the complaint that the applicant did not have access to the record of interview with Mr Singh. I agree with the Minister that there was nothing in this letter, or otherwise, to say that the applicant made any clear statement to dispute what Mr Singh said about the 900 hours work experience, such as to say there was a contest in the evidence. General assertions that the applicant “denies any wrongdoing” (CB 319.9) are not of such specificity as to say a “contest” existed.

13. In any event, I understood the applicant’s case in support of the proposition of unreasonableness to include a number of factors which, he submitted, individually and cumulatively meant the Tribunal acted unreasonably in not exercising its discretion to summon Mr Singh.

14. I note again specifically in this context, the direction given by the Full Federal Court in Singh, that all this Court, as the “supervising court”, can do is “focus on the outcome of the [non] exercise of the power in the factual context presented” (Singh at [45]).

15. It is clear that the Tribunal had access to the transcript of the interview with Mr Singh. The applicant did not have access because of the operation of s.357A of the Act, and the certificate issued pursuant to it. It is clear from the relevant correspondence that this was of concern to the applicant’s representative. The outcome of the Tribunal’s refusal to exercise the power to summons Mr Singh cannot be said to make the refusal unreasonable, in circumstances where the elements of the interview, on which the Tribunal proceeded to base part of its analysis, were put to the applicant and he was given the opportunity to comment.

16. The applicant did not attend the Tribunal hearing. It is, of course, a matter for the applicant to elect whether to attend or not. This, of itself, cannot be seen as being adverse to the applicant’s case now before the Court. However, the applicant has claimed before the Court, in the context of his charge of unreasonableness against the Tribunal’s refusal to summons Mr Singh, that he could not properly address Mr Singh’s evidence, that is, the information referred to in the Tribunal’s letter, other than by Mr Singh being present at the hearing. This echoes the applicant’s representatives stated position before the Tribunal.

17. However, this does not satisfactorily explain why the applicant chose not to attend the hearing. If the applicant’s representative was concerned, as he told the Tribunal (CB 217) to have the matter “resolved as quickly and efficiently as possible”, then that outcome could have been achieved by the applicant’s attendance at the hearing where he could have given his own evidence as to what he did at the restaurants.

18. In this way, the applicant could have addressed the matters raised by the Tribunal in its letter. In addition, the applicant would have had the opportunity to give evidence and further explain the circumstances at the relevant time. For example, the claim made by the applicant’s representative to the Tribunal, that Mr Singh was not a proprietor of the business (the restaurant), and would, therefore, not have been in a position to explain what the applicant said was the “voluntary” nature of his work experience (CB 216.9).

19. The applicant’s argument before the Court did not engage with and address that it is for an applicant to make out his case before the Tribunal. The applicant’s argument, echoing what was put to the Tribunal, was that Mr Singh should have been summonsed, such that his evidence could be tested and properly evaluated. However, the Tribunal already had Mr Singh’s evidence in the form of what he said at the interview. The applicant could have achieved the objective of “testing” Mr Singh’s evidence by attending the hearing and giving his own evidence as to the relevant matters, including a “critique” of, or response to, what the Tribunal told him Mr Singh said at the interview.

20. Additionally, the circumstances, as now presented, do not reveal any satisfactory reason why the applicant himself could not have arranged for Mr Singh to voluntarily give evidence. The applicant insisted on the Tribunal issuing a summons. As the Tribunal noted, the applicant “…chose not to call Mr Prithvi Singh to lead evidence in support of his case” ([27] at CB 331).

21. In one of his submissions to the Tribunal the applicant’s representative appeared to indicate that Mr Singh was not known to the applicant (“Is [Prithvi] Singh male or female?” – CB 198). However, I agree with the Minister that if Mr Singh was the chef at the relevant time, then the applicant would have known him given that he said he worked there, even as ultimately put, in a voluntary capacity. In this circumstance, it was open to the applicant, as the Tribunal stated, to arrange for Mr Singh’s voluntary attendance at the hearing.

22. If Mr Singh was not the chef at the restaurant at the relevant time, then the applicant could have sought to invite someone from the restaurant to give relevant evidence to that effect or to have attended the hearing and given that evidence himself. He did not do so.

23. The Minister referred the Court to Burton. I note that at [32], Justice Jacobson stated, relevantly, “…ordinarily, there can be no duty to use the Tribunal’s powers to test one side’s assertions as against the other’s”.

24. In my respectful view, this, in part, reflects the inquisitorial nature of the Tribunal’s function. The applicant’s representative before the Tribunal appears to have adopted a position closer to the adversarial proceedings before a Court. In essence, the approach was that Mr Singh should be summonsed so that his evidence could be “evaluated” or tested. In an inquisitorial process, the Tribunal did not necessarily need to do this. Mr Singh made certain statements at the interview. What was relevant to the Tribunal’s consideration was reported to the applicant. The applicant did not need Mr Singh at the hearing to repeat what he said at the interview. Nor could Mr Singh’s presence at the hearing have been an opportunity for the applicant, or his representative, to cross-examine Mr Singh. As the Minister submitted, correctly in my view, the Tribunal “routinely” assesses evidence and information without having the person who gave the information, or evidence, before it.

25. The Minister submitted that, in essence, the applicant’s argument before the Court is that the Tribunal acted unreasonably by not issuing a summons to Mr Singh, because there was no other way of evaluating, or testing, Mr Singh’s evidence. I agree with the Minister, for the reasons above, that this argument should be rejected.

26. Further, implicit in the applicant’s argument now is that the Tribunal acted unreasonably in not summonsing Mr Singh to conduct a further inquiry into the applicant’s circumstances. I cannot see that the Tribunal’s decision not to summon Mr Singh led to any failure to conduct any inquiry it was obliged to conduct. There is no general duty on the Tribunal to inquire (SGLB). There may, however, be some circumstances where the Tribunal should make an inquiry. These were explained by the High Court in Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel And Bell JJ as follows (and see further, as the Minister submitted, Minister for Immigration and Citizenship v SZJSS & Ors [2010] HCA 48; (2010) 243 CLR 164):

    “Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire,’ that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.”

    However, I cannot see that such circumstances exist in the current case.

1. The applicant also submitted the Tribunal itself had concerns, or reservations, about some aspects of Mr Singh’s evidence at the interview. He argued that this should be seen as being relevant to his argument that the Tribunal acted unreasonably in not summoning Mr Singh.

2. Some care is necessary here. In his submissions to the Court, the applicant identified what he said were concerns about Mr Singh’s evidence. For example, that there was no evidence before the Tribunal, other than Mr Singh’s evidence, that he was the chef at the restaurant, and that he had not signed the work reference submitted to the TRA (see CB 62).

3. It is the case that the Tribunal stated it “considered the reliability of the evidence given by Mr Prithvi Singh” ([36] at CB 333) and that it had “some reservations…in relation to the evidence…” ([37] at CB 334).

4. However, the Tribunal did not identify any reservations beyond those matters to which it referred at [36] of its decision record (at CB 333). That is, that Mr Singh may have forgotten the applicant, or that it may have been adverse to his interests to identify the applicant.

5. However, even if the Tribunal’s reference to “reservations” was meant as some broader reference, this is, in my view, a reflection of the Tribunal’s analysis and engagement with the material before it. It did not uncritically accept Mr Singh’s evidence. It weighed and evaluated it. The applicant elected not to give evidence at the hearing. In these circumstances, having evaluated the “only independent evidence” before it ([37] at CB 334), it was open to the Tribunal to accept this evidence. No unreasonableness is revealed by this outcome.

6. Although in my view, the above is sufficient to dispose of ground one, I should also note the Minister’s submissions that, in the circumstances of this case, it was not clear whether the Tribunal had the power, in any event, to compel Mr Singh’s attendance at the hearing. It is to be remembered that s.363(4) of the Act prevents the Tribunal from summonsing a person who is not in Australia.

7. The Minister referred to correspondence between the Tribunal and the Minister’s department, to submit that it was not aware whether Mr Singh was in Australia or not (CB 304 to CB 305). On the state of the evidence before the Court, and in the absence of any reasons by the Tribunal for the refusal to summons Mr Singh, the answer to this question remains unresolved. The Court now can only look to the outcome of the exercise (or lack of exercise) of the power in the factual context presented. The uncertainty as to Mr Singh’s presence in Australia, and therefore whether the Tribunal could compel his attendance, makes it difficult for the Court to find that the decision not to summons him was unreasonable.

8. In any event, in all, ground one is not made out.

9. Ground two derived from the same factual context as ground one. The ground asserts that the Tribunal failed to lawfully exercise its discretion to summons Mr Singh. The complaint is that the Tribunal’s failure was not “fair and just” within the meaning of s.357A(3) of the Act, which required the Tribunal to exercise its procedural powers (such as summonsing a witness) in a manner which is “fair and just”.

10. Both parties directed attention to the reasoning of the Full Court in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; (2009) 257 ALR 427 (“SZMOK”). In that case the Full Court was concerned with s.422B(3) of the Act in relation to Refugee Review Tribunal decisions. This section is analogous to s.357A(3) of the Act which refers to the Migration Review Tribunal.

11. In SZMOK, the Full Court rejected a similar proposition as put in the applicant’s ground now ([14] – [15]):

    “[14] Provisions such as those found in s 420(1) are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law and regarded as inappropriate to Tribunals (see Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (Eshetu’s Case) at [49]). The direction in s 420(1) that the Tribunal pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick does not amount to a requirement that the Tribunal observe a particular procedure in connection with the making of a particular decision for the purposes of Division 4 (see Eshetu’s Case at [108]). Thus, s 422B(1) did not remove the exhortation of s 420(1) in respect of Division 4. Rather, s 420(1) was intended to continue to operate, notwithstanding the inclusion of s 422B(1).

    [15] Clearly, s 422B(1) has not been repealed by s 422B(3). Accordingly, s 422B(1) continues to exclude common law procedural fairness in relation to the matters dealt with by Division 4, except to the extent of the procedural codes set out in Division 4. Section 422B(3) may be understood as an exhortative provision in the same way as s 420(1) is an exhortative provision. Just as s 420 does not create rights or a ground of review, additional to specific rights of review that are expressly given by the Act, so s 422B(3) should not be understood as creating a procedural requirement over and beyond what is expressly provided for in Division 4 (see Eshetu’s Case at [158]).”

12. The applicant also referred to Li (at [56] – [59] per Hayne, Kiefel and Bell JJ):

    “[56] In Minister for Immigration and Citizenship v SZMOK, a Full Court of the Federal Court considered an analogue to s 357A, which appeared in what was Div 4 of Pt 7 of the Migration Act. Applied to s 357A, the reasoning is that s 357A(3) cannot be taken as intended to qualify or cut down the express statement in s 357A(1). However, Div 5 provides no indication as to how the procedural powers contained in it are to be exercised. Section 357A(3) may be taken to address that omission. The Full Court considered that s 357A(3) may have been intended to restore concepts of fairness and justice to the exercise of the procedural powers for which the Division provides.

    [57] On this approach, it was said that ‘fairness’ and ‘justice’ may usefully be compared with the content of those words in the expressions ‘procedural fairness’ and ‘natural justice’. In drawing this conclusion, the Full Court in SZMOK was not equating the requirement of s 357A(3) to act in a way that is fair and just in the conduct of the review with the obligation to afford procedural fairness or natural justice. The Full Court said that some other requirement of fairness is to be implied, but clearly thought that that requirement bore the hallmarks of the obligation of procedural fairness at common law. The reconciliation effected by the Full Court suggests that it considered that a breach of the requirements of s 357A(3) may not have the same consequences as a breach of the common law obligation. The Full Court did not, however, consider the role of s 75(v) of the Constitution. It is firmly established that the denial of procedural fairness by an officer of the Commonwealth may result in a decision made in excess of jurisdiction, for which prohibition will go under s 75(v).

    [58] In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the Tribunal in the conduct of a review. The act of the Tribunal in question may involve a step taken in satisfaction of a duty imposed by Div 5. The act may be the exercise of a discretion, as in the present case. What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.

    [59] A consideration of the purpose for which a duty is imposed, or a power granted, may connect an unfair action with a substantive obligation on the part of the Tribunal. Thus, whilst the characterisation of an act as unfair may not itself have consequences for the ultimate decision on the review, there may be other consequences which flow from that act.”

13. The applicant submitted that he, respectfully, understood the Court in SZMOK to find that s.422B(3) of the Act, and by analogy, s.357A(3) of the Act, acts upon individual sections of, relevantly, Division 5 of Part 5 of the Act, to ensure that the operation of these sections is “fair and just”.

14. The applicant relied on the plurality in Li to submit that in part of the High Court’s judgment there was “at least an implied statement that a breach of s.357A(3) applied”, relevantly, to s.363(3)(a) of the Act. Further, that a failure to act in a fair and just manner in the exercise (or non exercise) of the power in that section, reasonably led to revelation of jurisdictional error.

15. The Minister submitted that the High Court did not overrule what was said in SZMOK and that this Court was bound by SZMOK.

16. It is the case that the plurality in Li did refer to the Full Court’s “omission” in not considering the role of s.75(v) of the Australian Constitution 1901 (Cth) in its consideration of the consequences of a breach of s.357A(3) of the Act (see Li at [57]). However, the plurality in Li (at [62]) also found that in the case before it, it was “not necessary to determine what s.357A(3) required and what may be the consequences of a breach of that provision.”

17. What I respectfully understand from this is that while some “reservation” was identified, the High Court did not overrule SZMOK. In this, it is also instructive to note what was said by Chief Justice French in Li at [15] – [16]:

    “[15] Section 353(2) shares with s 353(1) a facultative rather than restrictive purpose. The two paragraphs of s 353(2) ‘describe the general nature of review proceedings and require the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals’. Its facultative character was illustrated in Minister for Immigration and Multicultural Affairs v Bhardwaj. Gleeson CJ observed that s 353 allowed a precursor tribunal, the Immigration Review Tribunal, to reopen its own decision when it learned that the decision was based upon an administrative error.

    [16] Section 353(2) does not import substantive common law requirements of procedural fairness. Nothing said in SZGUR supports such a conclusion. To the extent that the Full Court of the Federal Court treated the direction in s 353 as giving rise to grounds for judicial review, it was in error. A fortiori, no substantive operation applicable to individual review proceedings is to be attributed to s 397(2)(a) of the Act. On the other hand, nothing in s 353 is adverse to the application of the requirements of procedural fairness in the exercise of the MRT’s functions. A limiting definition of their application in certain respects is to be found in s 357A. It is necessary now to consider the operation of that provision in relation to procedural fairness and whether in this case procedural fairness was denied.”

18. I agree with the Minister that having regard to what was said by the High Court, it cannot, respectfully, be said that SZMOK was overruled. On that basis, SZMOK remains binding on this Court. To the extent, therefore, that the applicant’s similar argument was rejected by the Full Court, it must be rejected here.

19. However, even if that were not the case, and the applicant’s argument as to the applicable law were to be accepted, the ground would still not succeed.

20. The applicant submitted, in support of this ground, that there were factual disputes between the applicant and Mr Singh, such that the reliability of Mr Singh’s evidence was at issue, as it contrasted (“the contest”) with the applicant’s claims. The applicant again submitted that without Mr Singh giving evidence, the Tribunal could only “guess” at the reliability of that evidence. Therefore, the Tribunal’s refusal to summons Mr Singh was not fair and just in the disposition of the applicant’s case. This was a similar argument to what was central to the argument in relation to ground one.

21. It is not necessary to repeat what has relevantly been set out in relation to this argument in ground one above. The same matters found there against the applicant’s ground equally apply to ground two in this regard. In all the circumstances, as referred to above, I do not agree with the applicant that the Tribunal’s refusal to summons Mr Singh was unfair or not just. In all, therefore, ground two is not made out.

Conclusion

1. In all, the applicant’s grounds and complaints in the submissions do not reveal jurisdictional error on the part of the Tribunal. The application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 17 June 2015