Fati v Minister for Immigration
[2018] FCCA 100
•19 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FATI v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 100 |
| Catchwords: MIGRATION – Application for review of decision of Administrative Appeals Tribunal – refusal of student visa – public interest criterion 4020 – provision of a bogus document – no jurisdictional error established – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 65, 474, 476(1) Migration Regulations 1994, r.572.224(a) |
| Cases cited: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476 Arora v Minister for Immigration & Border Protection [2016] FCAFC 35 Trivedi v Minister for Immigration & Border Protection [2014] FCAFC 42 Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 Minister for Immigration & Border Protection v Singh [2014] 308 ALR 280 Re Minster for Immigration & Multicultural Affairs: Ex parte Durairajasingham [2000] 168 ALR 407 Abebe v the Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | NIKOLIN FATI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | ADG 251 of 2016 |
| Judgment of: | Judge Brown |
| Hearing date: | 13 December 2017 |
| Date of Last Submission: | 13 December 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 19 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Solicitors for the Applicant: | Not applicable |
| Counsel for the First Respondent: | Ms Milutinovic |
| Solicitors for the First Respondent: | Sparke Helmore |
| Counsel for the Second Respondent: | Submitting appearance |
ORDERS
The application filed 18 August 2016 and further amended on 4 July 2017 is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of seven thousand three hundred and twenty-eight dollars ($7,328.00).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 251 of 2016
| NIKOLIN FATI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant in these proceedings, Nikolin Fati, seeks the issue of a constitutional writ in order to quash a decision of the Administrative Appeals Tribunal “the AAT” made on 22 July 2016.
The decision challenged by Mr Fati arises as a consequence of the determination of the AAT not to overturn an earlier decision of a delegate of the Minister for Immigration & Border Protection, which resulted in a refusal to grant him a Student (Temporary) (Class TU) visa “the visa” pursuant to the provisions of the Migration Act 1958 (Cth) “the Act”.
In general terms, the Ministerial Delegate found that it was not in the public interest to grant Mr Fati the visa in question because, in order to secure it, he had supplied the Immigration Department with a bogus document, relating to his prospects of employment in Italy and his past employment in that country.
It was further found that there were no extenuating circumstances, relevant to either the interests of Australia or any Australian citizen that justified the waiver of the applicable administrative criteria pertaining to the use of documents, considered to be non-genuine, in migration matters.
Mr Fati’s application most recently came before the court on 13 December 2017. On this occasion, he appeared on his own behalf, although he had the assistance of an Albanian interpreter. Mr Fati applied to adjourn the proceedings, in order to obtain legal representation.
I was not prepared to adjourn the proceedings, notwithstanding Mr Fati’s lack of representation and lack of fluency in English. In order to understand this decision, it is necessary to set out the earlier history of Mr Fati’s application before the court.
Mr Fati’s application to the court was originally filed on 18 August 2016 and was prepared by his former solicitor, who practices in Canberra. The application was initially listed for hearing on 1 June 2017.
On 1 June 2017 the applicant, through his then solicitor, sought to adjourn the hearing, on the basis that the application required amendment. The adjournment was granted and the matter was refixed for hearing on 25 September 2017.
The applicant was granted fourteen days to file and serve any amended application. In order to save expense, arrangements were made for the applicant’s solicitor to present his submissions, on behalf of Mr Fati, by means of video link, from the court’s registry in Canberra.
Regrettably, it turned out that the adjourned date was a public holiday in the Australian Capital Territory and, as a consequence, the proceedings were administratively adjourned to 13 November 2017.
As foreshadowed by the court’s earlier order, an amended application was filed on 4 July 2017. This provided three related grounds on which it was asserted the AAT had fallen into jurisdictional error, when it affirmed the Ministerial Delegate’s decision not to grant Mr Fati the visa. The grounds related to the bogus document and read as follows:
“1. The Tribunal erred when they considered an unsigned email to be a document in the application in the first instance.
2. If the unsigned email is a considered to be a document which factually is accepted as part of the application then the decision for finding the document appeared to be counterfeit or was bogus was made without substantial evidence to support the conclusion.
3. If the unsigned email is considered to be counterfeit document and forms part of the application then the delegate put excessive weight upon this finding in reaching its conclusion.”[1]
Shortly prior to the re-scheduled hearing date of 13 November 2017, Mr Fati changed solicitors. His new solicitor applied to the court to adjourn the proceedings, on the basis that he was not in a position to argue the matter, given that he had only been recently instructed. Over the objections of the Minister, the proceedings were further adjourned to 13 December 2017.
As previously indicated, the applicant appeared at court unrepresented on 13 December and sought a further adjournment of the case. The Minister objected. Given that the case had been previously adjourned, on two earlier occasions, at the applicant’s request, I was not prepared to grant a further adjournment.
In all the circumstances, I considered that there was a significant possibility that, in the event the proceedings were adjourned once again, there was a good chance the applicant would be in the same position – namely unrepresented and seeking a further adjournment – on the next occasion.
Background
The applicant is a citizen of Albania by birth but is also a citizen of Italy. He first arrived in Australia on 17 August 2013, pursuant to a visitor’s visa. On 20 November 2013, he applied for student visa on the basis that he was enrolled in an Advanced Diploma of Hospitality course at a vocational college in Adelaide. He successfully completed this course of study.
The applicant applied for the relevant visa on 29 January 2015. In support of his application, he indicated that he had secured a confirmation of enrolment at the same approved vocational training organisation in Australia, at which he completed his diploma course and wished to pursue a diploma course in business.
He therefore sought a further temporary student visa to enable him to pursue this vocational education course. The second course was scheduled to commence in July of 2016 and conclude on 25 July 2017.
On 30 January 2015, a departmental officer forwarded Mr Fati’s then advisor with a pro forma request for information and documentary evidence, as relevant, which the Department required to process his temporary student application.
Amongst other matters, the applicant was requested to provide information regarding the following issues:
·His reasons for choosing the study specified by him;
·The relevance of his course to his future career and/or educational plans;
·Evidence of his economic situation in his home country;
·Evidence of his employment in the past twelve months, including evidence of an offer of employment on your return home;
·Evidence of his ties to his home country or usual country of residence indicative of a significant incentive to return home at the end of your stay in Australia.
On 20 February 2015, through his migration agent, the applicant sent the department an email which contained the following statement:
“Mr Fati has strong incentives of returning back after the completion of his studies because he does not have anyone in Australia, his child is in Italy and his parents and relatives are all living and working in Europe. He has got a secured job offer given to him in a pizzeria restaurant in Italy.”[2]
On 17 February 2015, the applicant, through his migration agent, forwarded an email dated 6 February 2015, which purported to be from the Pizzeria I Due Mori in Turin, Italy. The correspondence was addressed to the email address of the applicant’s migration agent and read verbatim as follows:
“Hello, we are the pizzeria I DUE MORI from carmagnola.
We heard that Mr. Nikolin Fati is attending the school for get a managerial level on business and tourism.
We would be glad if Mr. Fati could start with us his business manager for the new pizzeria that we are opening in Turin.
Having previously worked with Mr. Fati we know that he will be able to organise and better manage all the work that concerns our new restaurant.
We leave our contact details if you need to contact us.
Regards
The Pizzeria I DUE MORI
10022 Carmagnola (TO)
Mr Roberto Gatti
Tel. +39 327 138 1722”[3]
It is this document that stands at the centre of these proceedings. Both the Ministerial Delegate and the AAT accepted evidence that officers of the Australian Embassy in Berlin had contacted the pizzeria, referred to above, through its website and spoken with its owner, who advised that he did not know either Mr Fati or Mr Gatti and accordingly his business had never offered employment to the applicant.
At around the same time, the same departmental officers, while utilising the telephone number provided in the email were able to contact the applicant’s sister, who informed them that she had previously worked for Mr Gatti. She was asked to provide his telephone number, to which request she responded by asking the officer to call her back in five minutes.
When the departmental officer rang back, the applicant’s sister stated that she had driven to Mr Gatti’s restaurant, in order to give him her phone, so that he could talk to the official concerned directly. Mr Gatti then indicated that Mr Fati had worked for him at another pizzeria off the books and that he (Mr Gatti) had acquired the pizzeria I Due Mori, which was currently closed but would reopen shortly. In this context, he indicated that the pizzeria did not as yet have an active telephone number.
The legislative framework
Section 65 of the Act requires the Minister to grant a visa if satisfied that relevant criteria attaching to the visa sought have been satisfied. In this particular case, the relevant considerations are contained in clause 572.224(a) of schedule 2 to the Migration Regulations 1994.
In generic terms, the Minister must be satisfied that an applicant for a vocational or education visa is a genuine temporary entry student and will leave Australia on the completion of study. In this context, such applicants are required to satisfy the public interest criteria, which are enumerated as PIC 4020. At relevant times, PIC 4020 read as follows:
“(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5‑reviewable decision, 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.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(2AA) However, subclause (2) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(2A) The applicant satisfies the Minister as to the applicant’s identity.
(2B) The Minister is satisfied that during the period:
(a) starting 10 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse to grant the visa;
neither the applicant, nor any member of the family unit of the applicant, has been refused a visa because of a failure to satisfy the criteria in subclause (2A).
(2BA) However, subclause (2B) does not apply to the applicant if, at the time the application for the refused visa was made, the applicant was under 18.
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means 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.”[4]
The expression bogus document is defined in section 5 of the Act as follows:
“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.”
PIC 4020(4) authorises the Minister to waive the requirements relating to bogus documents or misleading information if satisfied that compelling circumstances, affecting the interests of Australia arise or there are compassionate or compelling circumstances pertaining to the interests of an Australian citizen.
In his amended application, the applicant seeks an order that the decision of the AAT, which resulted in the affirmation of the Minister’s determination not to grant the relevant visa, should be quashed and thereafter a writ of mandamus be directed to the AAT requiring it to re-determine Mr Fati’s application according to law.
In this context, it is important to note that it is not the function of this court to re-hear Mr Fati’s application and determine it afresh. Rather, the role of the court is confined to ascertaining whether or not the decision of the AAT is one which can be characterised as being vitiated by jurisdictional error.
The classical definition of jurisdictional error has been provided by the High Court in Minister for Immigration & Multicultural Affairs v Yusuf.[5] It described an error, which leads to the vitiation of the jurisdiction of an administrative body, in the following terms:
“What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.”
The relevant decision of the AAT is one which falls within the purview of section 474 of the Act as it is administrative in character. As a consequence, the decision is characterised, by the section, as being a privative clause decision. As such, it cannot be subject to challenge, review or appeal.
However, the High Court has held that the provisions of section 474 do not prevent the review of decisions, made by an administrative decision maker, such as the AAT, which are affected by jurisdictional error; have been made in bad faith; or in denial of natural justice.[6]
In his amended application, the applicant seeks to review the decision of the AAT on the basis that it is affected by jurisdictional error and is therefore amenable to the application of a writ of certiorari. Pursuant to section 476(1) of the Act, this court has the same original decision, as does the High Court, pursuant to paragraph 75(v) of the Constitution.
Pursuant to paragraph 75(v) of the Constitution, the High Court has the authority to grant prerogative writs including writs of certiorari, against any officer of the Commonwealth. Accordingly, in migration decisions, this court has authority to quash the decision of the AAT, by way of a writ of certiorari and to remit the matter for re-determination, if a jurisdictional error is established.
However, this jurisdiction does not involve the re-hearing of any administrative decision, regarding a migration matter, on its merits – that is this court substitutes its view of the facts concerned for those of the administrative decision maker. Rather the jurisdiction depends on the applicant concerned establishing some form of jurisdictional error on the part of the decision maker concerned in the terms outlined above.
The Ministerial Delegate was concerned at the discrepancies arising from the two separate lines of inquiry, initiated by the Australian Consular staff in Berlin. As a consequence, the applicant was given an opportunity to comment on this information, which for obvious reasons, had the potential to be disadvantageous to his application. This opportunity to comment was provided under cover of a letter dated 7 May 2015.
On 9 May, the applicant’s migration agent wrote to the delegate and submitted that there had been some form of misunderstanding occasioned by Mr Gatti’s letter. It was further submitted that the letter established that Mr Fati had previously worked with Mr Gatti and that he (Mr Gatti) was happy to offer Mr Fati full-time employment on the completion of his studies in Adelaide and once the formalities in respect of the purchase of the pizzeria had been finalised.
On 7 June 2015, a further letter from Mr Gatti was provided to the delegate, which provided a different telephone number for Mr Gatti and read as follows:
“We are sorry to learn that you have misinterpreted our previous letter of employment to mr. Fati.
I mentioned on the letter that on the basis of working previously with mr. Fati, I am happy to offer him a managerial position to the new pizza that I am opening in Turin, which meant that I haven’t opened or bought it yet but I am in the process of doing so and therefore I am willing to offer him a job there.
The current owner of the pizzeria in Carmagnola are not aware of whom I am going to employe [sic] next year as it is not their business. In my letter, I have never claimed that mr Fati is currently working at pizzeria due mori, all I said is that he will be working here when we are opening in, which means in the near future. After all, mr. Fati is currently studying and will come back to Italy when he finishes his study to take up my job offer.
Should the purchase of pizzeria due mori fails, then I am happy to offer mr. Fati the same position at the following restaurant which is operation and currently owned by me.
I apologise for the misunderstanding.
Should you have any question, please feel free to contact me below.[7]
It is the applicant’s contention that the initial email cannot be characterised as falling within the definition of document, provided by section 5, as it was not signed and provides no probative evidence that the applicant had been actually offered a job at the pizzeria I Due Mori.
In these circumstances, the applicant contends that the document in question cannot be regarded as being counterfeit and, in all the circumstances pertaining, there was no substantive evidence available, to either the delegate or subsequently to the AAT, to found a determination that the document was of a counterfeit nature.
As such, it was legally unreasonable for it to be characterised as such by both the Ministerial delegate and the AAT, given the nature of the evidence available. Accordingly, it is submitted that the AAT failed to acquit the jurisdiction conferred upon it.
It is further submitted that, in the event that it was open to the AAT to consider the document in question to be counterfeit, the AAT placed excessive weight upon it, in reaching its decision adverse to Mr Fati and this also amounted to a failure of jurisdiction on its part.
The Decision of the AAT
The applicant appeared before the AAT on 21 July 2016, at its hearing of his application. He was represented, at this hearing, by his migration agent. The issue of the applicant’s relationship with Mr Gatti and the provenance of the email of 6 February 2015 were matters squarely raised, by the Tribunal, with him.
The applicant said that he had previously worked for Mr Gatti at Pizzeria Belmondo, between 2006 and 2008, and upon receiving the departmental request for more information regarding his genuine temporary entry status, he had contacted Mr Gatti, via his sister, to seek confirmation that he had a job offer upon returning to Italy.
In this context, the applicant deposed that he knew that Mr Gatti was not the owner of Pizzeria I Due Mori but was in the process of acquiring this business. Thereafter, the Tribunal questioned the applicant about two areas of apparent discrepancy arising between this evidence and the evidence provided by the inquiries of the Berlin Embassy. Firstly, the denial of any knowledge by the owner of the Pizzeria I Due Mori of Mr Gatti; and secondly, the fact that the telephone number in the email, had been answered by the applicant’s sister, rather than by Mr Gatti himself.
The applicant indicated that it was possible that the owner did not disclose his relationship with Mr Gatti for privacy reasons relating to the sale of the business. In respect of the telephone number, he indicated that this was indeed Mr Gatti’s number but his sister answered it because she was working for Mr Gatti, as a pizza delivery person, off the books.
It is clear from the Tribunal’s reasons for decision that it did not accept the applicant’s explanations in regards to these two aspects of the evidence. In this context, the Tribunal indicated to the applicant as follows:
“I indicated to the applicant that, based on the evidence before me, it appears that Mr Gatti was not the owner of pizzeria I Due Mori in February 2015 when he wrote the e-mail that was submitted to the department with the visa application. He had no authority to write the e-mail on behalf of the pizzeria. As such I explained to the applicant that, pursuant to definition of bogus document in s.5(1) of the act, it appears that the document is counterfeit. I indicated that I accept the applicant’s submissions that, contrary to the delegate’s findings, the e-mail of 6 February 2015 neither contains a job offer at pizzeria I Due Mori nor it asserts that the applicant was previously employed at pizzeria I Due Mori.”[8]
The Tribunal summarised its task as being to determine, in broad terms, whether there was no evidence that the applicant had given, or caused to be given, to the Minister or other relevant decision maker a bogus document or information that was false or misleading in a material particular in relation to the visa application.[9]
In this context, the Tribunal posed itself the following question: Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular? In this context, the Tribunal found that the email, ostensibly prepared by Mr Gatti was a bogus document, within the meaning of section 5 of the Act, in the sense that it was counterfeit in the ordinary meaning of that word, namely it was made to imitate and pass for, something else.
The Tribunal found that Mr Gatti was not at relevant times the owner of Pizzeria I Due Mori. Accordingly, by utilising the businesses name, he had passed himself off, as its owner. Accordingly, the email was one which was bogus. In these circumstances, the Tribunal found as follows:
“Based on the evidence before me I am satisfied that the e-mail of 6 February 2015 was created by Mr Gatti to imitate a letter from the owners of the pizzeria I Due Mori. He used the business e-mail address and provided the business’ street address without having any authority to do so. In the email Mr Gatti wrote ‘We are the pizzeria I Due Mori from Carmagnola’. The applicant confirmed in his evidence that Mr Gatti was not the owner of the pizzeria I Due Mori at the time he wrote the e-mail in February 2015. I am satisfied on the evidence that the document was not a genuine letter from Pizzeria I Due Mori.
As a result, I am not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to his application for a Student visa subclass 572. Accordingly, the tribunal finds that the applicant does not meet the requirements of paragraph 4020(1)(a).”[10]
In reaching this conclusion, the Tribunal had regard to what was said by the Full Court in Arora v Minister for Immigration & Border Protection.[11] In that case, the Full Court held that the definition of bogus document in section 5 is not concerned with the truth or otherwise of statements but with the reliability of documentation provided to the migration decision makers. In this case, the Tribunal concluded that the documentation provided by Mr Fati was not reliable, given that he was not the owner of the pizzeria in question but had purported that he was.
Thereafter, the Tribunal concluded that there were no compelling circumstances affecting the interests of Australia or compassionate and compelling circumstances affecting the interests of an Australian citizen, which justified the waiver of PIC 4020. Therefore, the Tribunal affirmed the decision not to grant the applicant the visa in question.
The grounds of appeal
a)Ground one
The first ground of appeal asserts that the unsigned email, dated 6 February 2016, was erroneously considered to be a document by the Tribunal. As I understand the ground, if the email was not a document, it could not be bogus. Particular emphasis is placed on the fact that the email was not formally signed by Mr Gatti.
The email in question was produced as a consequence of the letter from the Ministerial Delegate dated 30 January 2015 addressed to Mr Fati. Under the heading genuine temporary entrant criterion, he was asked to provide evidence of his ties to his usual country of residence that showed he would have a significant incentive to return home at the end of his stay in Australia.
In this context, his advisor confirmed that Mr Fati had a strong incentive to return to Italy because he had a secured job offer given to him to work in a pizzeria restaurant in Italy. The email in question was produced in tandem with this assertion. The email was produced to the Department in response to a request for further information.
In my view, the only logical explanation for its provision was that it was intended to be relied upon by Mr Fati in his application to the Department for the relevant visa. In these circumstances, to assert that it is not a document does not appear to me to be a logical one. It was a piece of written matter containing assertions, which were to inform someone that Mr Fati had the opportunity of being a business manager at a pizzeria in Turin and therefore had a strong incentive to leave Australia, when his studies were completed.
In these circumstances, in my view, the AAT was entitled to regard the email as a document and one which was relevant to its considerations, arising in respect of the issue of whether or not the applicant was genuine in his assertion that he intended only to remain temporarily in Australia, for the purposes of completing a course of study.
b) Ground Two
In the second ground of appeal, the applicant asserts that the Tribunal reached the conclusion that the email in question was counterfeit or bogus without a proper evidentiary basis to do so. Essentially, it is asserted that there was no reasonable basis for the Tribunal to conclude that the document was bogus or was intended to be purposely untrue and therefore a jurisdictional error arises.
These were issues considered by the Full Court of the Family Court in Trivedi v Minister for Immigration & Border Protection.[12] The case concerned the provision of an English language proficiency certificate in support of a skilled visa application. The applicant’s position was that a person, without her knowledge, had submitted a false English language proficiency certificate to the Department. This engaged the provisions of PIC 4020 for the decision maker concerned.
On appeal, two issues arose. Firstly, was it necessary for it to be established that a visa applicant knew of or was directly involved, in any falsehood, for the provisions of PIC 4020 to be engaged. Secondly, did the deception concerned have to be established as being one which was purposely un-true.
Buchanan J (with whom Allsop CJ and Rangiah J agreed) held that it was not necessary for a visa applicant to know of, or be directly involved in any falsehood for PIC 4020 to be engaged. The Tribunal had regard to this aspect of the case in its decision. As such, it did not make any specific finding regarding Mr Fati’s involvement or otherwise in the production of the relevant email nor was it required to do so.
The second consideration identified in Trivedi was concerned with the character or quality of the document concerned as distinct from the mental element of the person, who relied upon it. In this context, Buchanan J said as follows:
“First, the references in PIC 4020(1) and (3) to a ‘bogus document or information that is false or misleading in a material particular’ are ones which in my view give an indication of the character of improper material to which PIC 4020 is addressed.
…
It is apparent from the terms of PIC 4020 that it addressed the problem of attempts to work a fraud or deception on the assessment of claims for a visa. That is also evident from the fact that PIC 4020 states a “public interest” criterion, from the narrow and exceptional circumstances necessary to waive its requirements and, more generally, from the serious consequences that follow from its application. I would not infer any apparent intention to disqualify a visa applicant who could explain an innocent mistake in a document or information provided by them. PIC 4020 is not directed, in my view, to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term.
In my view, it such should be accepted that an element of fraud or deception is necessary in order to attract the operation of PIC 4020. To take the example of bogus documents, a counterfeit document is not produced accidentally. Similarly, to charge that a statement is false is not to say only that it is wrong. The accusation potentially imports some element of knowledge or intention on somebody’s part …
Secondly, consideration of the circumstances of the introduction of PIC 4020 confirms me in the view derived from the text of PIC 4020 that it is not directed to information or documents which are not tainted in the way I have indicated.”[13]
As Buchanan J has characterised it, the intent of PIC 4020 is to prevent the migration authorities from being deceived and, more importantly, to prevent the occurrence of any undermining of the proper consideration of factors relevant to migration decisions, as a consequence of any such deception. It is not to penalise applicants from innocent mistakes or inadvertent irregularities arising from documents submitted on their behalf.
The factual issue arising for the Tribunal, in this particular matter, was how the email of 6 February 2015 should be characterised. Essentially, was it legally reasonable for the Tribunal to characterise it as a counterfeit document or should the Tribunal have accepted Mr Fati’s explanation in respect of it.
In my view, the document was clearly relevant to the Tribunal’s deliberations, given its jurisdictional task to determine whether the applicant met the temporary entry criteria. Both it and the Delegate were entitled to inquire in respect of factors, which would militate in favour of the applicant returning to Italy, once his studies in Australia were completed. In this context, the possibility that he had employment, particularly relevant to his course of study, in his home country, was a very relevant consideration.
The clear import of the email in question was that the purported operators of Pizzeria I Due Mori were in a position to offer Mr Fati a position as a business manager at a pizzeria in Turin. In my view, there was probative evidence available to the Tribunal to indicate that Mr Gatti had passed himself off as being the proprietor of Pizzeria I Due Mori. Evidence obtained by consular staff, from the Australian Embassy in Berlin indicated otherwise.
In addition, further evidence from the consular staff showed that the telephone number provided by Mr Gatti, which purported to be the contact number for the pizzeria, was also false. In these circumstances, in my view, it was open to the Tribunal to conclude that the document in question was counterfeit and had been produced in order to deceive the migration authorities by providing a false impression of what were Mr Fati’s job opportunities in Italy.
In these circumstances, in my view, it was also open to the Tribunal to reject Mr Fati’s explanation. Consular staff had been told by the apparent owners of the pizzeria that they had no knowledge of either Mr Gatti or the applicant. In these circumstances, it was open to the Tribunal to question why the applicant’s sister had answered the telephone number purported to be that of Mr Gatti at Pizzeria I Due Mori.
The Tribunal made reference to Trivedi and acknowledged that it was necessary for it to be satisfied that there was an element of fraud or deception by some person attaching to the document in question. In this context, as indicated above, it made the finding that the email was counterfeit in the sense that its author had passed himself off as the proprietor of Pizzeria I Due Mori, when he was not and had provided a telephone number which was false and this was done with the intent of deceiving the recipient of the email.
As Buchanan J observed, a counterfeit document is not produced accidentally. The Tribunal rejected the assertion that there was some element of inadvertence or mistake in respect of the production of the email. It is the clear import of the Tribunal’s reasons that it found that there was an element of deception relating to the production of the email and this deception related to the application of considerations germane to whether the applicant was genuine in his assertion that he intended his stay in Australia to be a temporary.
In these circumstances, I consider that the Tribunal applied the jurisdiction conferred upon it and in doing so made the necessary findings of facts required to acquit that jurisdiction.
c) Ground Three
As I take it, in this ground, it is asserted that the Tribunal fell into jurisdictional error by giving excessive weight to the document in question and/or provided inadequate reasons in respect of its findings in respect of it. As I understand it, this alleged lack of intelligibility or overall reasonableness is said to be, of itself, indicative of jurisdictional error.
In my view, ground three is closely related to ground two. Under the latter (ground two), the applicant asserted there was no substantial evidence to support the conclusion that the email in question was counterfeit or bogus, in the former (ground three) it is asserted that the Tribunal placed excessive weight upon the document in reaching its conclusion to confirm the delegate’s decision not to grant the visa in question and this is indicative of jurisdictional error.
As previously indicated, Mr Fati has represented himself in these proceedings. His former solicitor prepared the grounds of appeal and provided some written submissions in respect of Mr Fati’s case. It is clearly Mr Fati’s personal position that he is of the view that the decision in question is wrong because it is unfair to him, turning as it does on the email from Mr Gatti, which he (Mr Fati) asserts did not emanate from him personally and is readily explicable as being based on some innocent misconception or mistake.
In these circumstances, as I understand this ground of appeal (and indeed the other related grounds), it is Mr Fati’s submission that, given the statutory framework applicable and the cursory nature of the relevant email, no reasonable tribunal could have determined to reject his application on the basis of the email alone.
Essentially, Mr Fati submits that the decision is arbitrary, capricious or without common sense.[14] In this sense, there is much common ground between the three grounds of appeal raised by Mr Fati, which each relate to the Pizzeria I Due Mori email. Mr Fati submits, I think, that there is a lack of intelligibility or reasonableness, in the Tribunal’s decision, which is indicative, in itself, of some species of jurisdictional error.
In Minister for Immigration & Border Protection v Singh[15] the Full Court of the Federal Court (Allsop CJ, Robertson and Mortimer JJ) identified two species of legal unreasonableness, arising from what was said by the High Court in Li. These can summarised as follows:
·Error arising from the application of the jurisdiction confirmed on the relevant decision maker – that is the misapplication of applicable statutory considerations; a failure to consider applicable statutory criteria or the consideration of irrelevant statutory criteria.
·Error arising in a decision, which although apparently referable to jurisdiction conferred by the applicable statutory framework, but in circumstances where the result of the actual exercise of the power lacks an evident and intelligible justification.
This latter species of error has been characterised as error arising within jurisdiction. It is an inherent requirement of the exercise of the power conferred on the AAT that it be exercised reasonably. If a power conferred on an administrative body is exercised in such a manner that a supervising court, such as this one, is not in a position to discern the basis on which the relevant power has been exercised, this amounts to jurisdictional error, falling within the second characterisation outlined above.
In Li, Gageler J expressed this principle as follows:
“Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.”[16] Citations removed
Accordingly in Li, Gageler J considered that the authority conferred on a decision-maker by statute was subject to the deeply rooted common law principle that such authority be exercised both according to law and reason. In the case, under the heading Judging Unreasonableness His Honour said as follows:
“Review by a court of the reasonableness of a decision made by another repository of power ‘is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process’ but also with ‘whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law’.”[17]
Essentially, an administrative decision maker is required to provide an intelligible and rational explanation, as to why a particular decision has been reached. The explanation must be referrable both to the law (jurisdiction) and the facts applicable. It is the function of a supervisory court, such as this one, to determine whether such a decision is either vitiated by jurisdictional error or is unreasonable on the basis of a lack of intelligibility or is otherwise capricious.
However, in conducting such a review, it is not the function of the supervisory court to substitute its own judgment of the evidence available to the decision maker concerned, or to make findings of fact, in respect of the evidence led before that decision maker. Many cases have indicated that the assessment of the credibility of evidence is a matter for the original decision maker concerned.[18]
In this particular case, the Tribunal did give reasons as to why it exercised the power conferred upon it, in the manner in which it did. It applied the provisions of PIC 4020, as it was required to do, and found that Mr Gatti’s email was counterfeit because it accepted that Mr Gatti had passed himself off as the proprietor of the pizzeria in question and had attributed a false telephone number to the business concerned.
In my view, there is a sufficient level of intelligibility and rationality attaching to this decision, which falls within the jurisdiction conferred upon the AAT. Accordingly, in my assessment, there is no legal unreasonableness attaching to the decision concerned.
I accept that the reasons of the AAT are brief. However, in my view, this brevity does not rob the decision in question of the required degree of intelligibility. I am also satisfied that the Tribunal considered both the evidence provided by the consular sources in Berlin and the rebuttal evidence provided by Mr Fati relating to the email of 6 February 2015.
In so doing, I am satisfied that the Tribunal engaged in the active intellectual process required of it, in assessing the evidence provided to it.[19] There is also longstanding authority that the reasons of an administrative decision maker are meant to inform and as such, are not to be subject to undue scrutiny in the expectation that such scrutiny will reveal some inadequacy. The intention being the prevention of a judicial review turning inadvertently into a reconsideration of the merits of the case concerned.[20]
Conclusions
The jurisdiction of the Tribunal, provided by Public Interest Criterion 4020, was to consider whether there was no evidence indicative of the provision of a bogus document in support of the application for the relevant visa. The Tribunal concluded that there was evidence to indicate that a bogus document had been provided to a relevant decision maker and that it had been done so for dishonest rather than mistaken or otherwise innocent reasons.
The Tribunal found that the email was a calculated attempt by Mr Gatti to pass himself off as something he was not, namely the then proprietor of Pizzeria I Due Mori and this deception had the potential to subvert a proper consideration of the applicable criteria relating to whether the relevant visa should or should not be granted. Accordingly, the provision of the email fell within the proper purview of the Public Interest Criterion.
In my view, the Tribunal asked itself the correct questions posed by the relevant statutory framework. The conclusion it reached was reasonable in the sense that it was supported by evidence, namely the results of the inquiries made by the consular staff stationed at the Australian Embassy in Berlin. The applicant was given an opportunity to comment on this evidence. The Tribunal did not accept his explanations. This was its prerogative alone.
For all these reasons, I am satisfied that the applicant has been unable to make out any of the grounds of his appeal or establish that there has been any jurisdictional error arising from the Tribunal’s decision. In particular, I am satisfied that it was within the jurisdiction conferred upon the Tribunal to determine whether or not the email in question was counterfeit in nature.
In determining that it was, I am further satisfied that this decision cannot be regarded as being lacking in intelligibility or transparency. In my view, it was a determination, which was clearly open to the Tribunal, on the evidence before it and the consideration of this evidence was the sole domain of the Tribunal. Accordingly, the application must be dismissed. Costs should follow the event, which I assess in the amount of $7,328.00.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding ninety three (93) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 19 January 2018
[1] See Amended Application filed 4 July 2016
[2] See casebook at page 21
[3] Ibid at page 27
[4] See casebook at page [170]
[5] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
[6] See Plaintiff 157/2002 v Commonwealth of Australia (2003) 211 CLR 476
[7] Ibid at page 88
[8] Ibid at page 166 [21]
[9] See casebook at page 167 [24]
[10] Ibid at page 168-169 [35]-[36]
[11] See Arora v Minister for Immigration & Border Protection [2016] FCAFC 35 at [13]
[12] See Trivedi v Minister for Immigration & Border Protection [2014] FCAFC 42
[13] Ibid at [31]-[34]
[14] See Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at [28] per French CJ
[15] See Minister for Immigration & Border Protection v Singh [2014] 308 ALR 280
[16] Ibid at [90]
[17] Li (supra) at 256 [105]
[18] See Re Minster for Immigration & Multicultural Affairs: Exparte Durairajasingham [2000] 168 ALR 407 at [67] per McHugh J & Abebe v the Commonwealth of Australia (1999) 197 CLR 510 at [187]
[19] See Minister for Immigration & Citizenship v Khadgi [2010] FCAFC 145 at [51] per Stone, Foster and Nicholas JJ
[20] See Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
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