Fatima v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 967

FEDERAL CIRCUIT COURT OF AUSTRALIA

Fatima v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 967

File number(s):

SYG 524 of 2019

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

12 May 2021

Catchwords:

MIGRATION – where the applicant seeks judicial review of the decision of a delegate of the Minister for Immigration – Skilled Independent (Permanent) (class SI) Skilled- Independent (Points-Tested) (subclass 189) visa – Public Interest Criterion 4020 – whether the decision of the delegate was infected by irrationally and illogically – jurisdictional error made out.– application upheld.

Legislation:

 Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth) cl 189.211

Cases cited:

DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175

Minister for Immigration and Citizenship v Li (2013) HCA 18

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169

Number of paragraphs:

46

Date of last submission/s:

27 April 2021

Date of hearing:

27 April 2021

Place:

Parramatta

Solicitor for the Applicant:

Mr Arch

Counsel for the Respondent:

Ms Hooper

ORDERS

SYG 524 of 2019

BETWEEN:

MARIA FATIMA

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	12 MAY 2021

THE COURT ORDERS THAT:

1.The name of the respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.

2.The application is upheld.

3.An order that the decision of the Delegate of the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs be quashed.

4.A writ of mandamus directed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs requiring it to determine the applicant’s application according to law.

5.The respondent is to pay the applicant’s costs fixed in the amount of $7,467.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a female citizen of Pakistan. On 18 January 2018, the applicant applied for a Skilled Independent (Permanent) (class SI) Skilled- Independent (Points-Tested) (subclass 189) visa. On 5 February, a delegate of the then Minister for Home Affairs (“the delegate”) refused the applicant her visa.

2. The applicant now seeks judicial review of the delegate’s decision. The Court notes that as the applicant was offshore at the time of the application, merits review by the Administrative Appeals Tribunal (“the Tribunal”) was not available, and it is the delegate’s decision that is the subject of this judicial review.

   THE DELEGATE’S DECISION

3. Given the nature of the grounds of judicial review, it is not necessary to summarise the entirety of the delegate’s decision. Rather, the following is the pertinent material.

4. At CB 195, the delegate noted that the applicant claimed to have been employed by Matrix Solutions of Lahore, Pakistan as a senior software engineer from 1 June 2011 to 22 November 2017. In support of the applicant’s application, she provided a suitable skills assessment by the Australian Computer Society, together with various letters, on company letterhead, covering the period of 2007 to 2012 signed by a Mr Aamir Saeed, CEO of Matrix Solutions, Lahore. In addition, a reference letter was provided, on company letterhead, dated 14 February 2018 also signed by Mr Saeed.

5. After a request for further information by the Department, the applicant provided monthly payslips for the periods of 2009 to 2017 stating that the method of payment was cash, as well as an appointment letter, again, on company letterhead, dated 21 February 2005 also signed by Mr Saeed. The delegate noted that the letterhead referred to the company website as “>

   Searches by a Departmental officer revealed that the website “ was a website for a firm of the same name based in Canada. However, further searches revealed that there was a Matrix-Solutions firm based in Lahore, Pakistan which used the website “Error! Hyperlink reference not valid. company details on this website were consistent with the details the applicant provided as to her employment. The difference between the website and email addresses for each of the 2 firms in Canada and Lahore was that the Canadian firm used the “.com” address whereas the Lahore firm used “.net”. The letterhead documents provided by the applicant referred to a “.com” address for the Lahore entity. This was clearly incorrect.

6. These matters were drawn to the attention of the applicant and she was given 28 days to provide information as to suspected non-genuine information. That request was replied to and included various documents that included the details for Matrix-Solutions in Lahore at the “.com” address. A certificate was provided from Mr Saeed dated 7 November 2018 stating that the email and website addresses printed on the letterhead for the Lahore entity was a typographical error and that the majority of company correspondence was via email and that the company letterhead was rarely used.

7. The delegate noted that certificates from Waleed Butt, HR Officer and Mr Saeed, CEO of Matrix Solutions of Lahore were provided with adjusted letterhead but the delegate placed little weight on these as they were provided after the discrepancy was bought to the attention of the applicant.

8. The delegate concluded at CB 198:

   I have also considered the explanations provided by the employees of Matrix Solutions that the incorrect references to the email and website address were the result of typographical errors on the documents when the documents were created and that the company conducts the majority of company correspondence via email and that the letterhead correspondence was rarely used.

   I find the explanation unconvincing that the company Matrix Solutions, who maintain an operational website at would utilise a letterhead on outgoing correspondence containing the typographical error for a timeframe of at least 2005 to 2018 and that the error would remain unnoticed by the company for this period. Similarly, I do not consider the claim that the letterhead was rarely used for correspondence is a convincing or satisfactory reason for the discrepancy.

   I place more weight on discrepancies between the employment evidence provided at the time of application and the information obtained by Departmental officers at the time of the initial investigations than these certificates.

9. The delegate concluded, as a result of the discrepancy, that the applicant was not employed as a software engineer at Matrix Solutions as claimed in the application and reference letter. The delegate then went on to find that the applicant had provided information that was false and misleading in a material particular. Accordingly, Public Interest Criterion (“PIC”) 4020 subclause 4020 (1) was not met.

   GROUNDS OF JUDICIAL REVIEW

10. The grounds of judicial review relied upon by the applicant are set out in the Initiating Application filed with the Court on 6 March 2019. They are as follows:

    Ground one

    The Minister’s delegate committed jurisdictional error by refusing the applicant’s application for a Skilled Independent (Permanent) visa on the erroneous basis that Public Interest Criterion 4020 was engaged.

    Particulars

    •The Minister’s delegate concluded that the applicant had provided bogus documents to the Department by reason of the fact that the Website and electronic mail addresses that appeared on the employment documents that the applicant provided in support of her visa application corresponded to an environmental and engineering firm located in Canada instead of the actual employer located in Lahore, Pakistan.

    •The Website information and electronic mail address that appears on the applicant’s employment documents are stated on those documents as “ and “[email protected]” while the actual Website and email address information for the applicant’s employer in Pakistan, “Matrix Solutions” are “ and “[email protected]”.

    •Evidence was provided to the Minister’s delegate prior to the decision to refuse the visa application that the incorrect Website and electronic mail information that appeared on the applicant’s employment documents was the product of a typographical error.

    •The applicant’s application for the Independent Skilled visa was predicated on her claimed employment history as a software engineer for the company Matrix Solutions based in Lahore, Pakistan.

    •The applicant did not make any claims in her visa application to the effect that she had been employed by the environmental and engineering firm in Canada also known as “Matrix Solutions”.

    •It is settled law under the Full Court’s decision in Trevidi v Minister for Immigration and Border Protection (2014) FCAFC 42 that Public Interest Criterion 4020 is not directed to innocent, unintentional or accidental matters and is not intended to disqualify an applicant who can explain an innocent mistake in a document that has been provided to the Department.

    •Public Interest Criterion 4020 is not properly engaged by the innocent typographical errors that appear in the applicant’s employment documents; the Minister’s delegate fell into jurisdictional error by so concluding.

    Ground two

    The Ministers delegate committed jurisdictional error by failing to consider relevant, probative material concerning the applicant’s employment history.

    Particulars

    •The delegate failed to consider the voluminous evidence provided by the applicant in support of her claimed employment as a software engineer for the company Matrix Solutions based in Lahore, Pakistan.

    •The Minister’s delegate based the decision to refuse the visa application entirely on the fact that the applicant’s employment documents contained incorrect references to the Website and electronic mail address of her employer, and failed to consider that the material provided evidence of her lengthy employment as a software engineer at the company Matrix Solutions based in Lahore, Pakistan.

    Ground Three

    The delegate’s decision to refuse the visa application was legally unreasonable and was therefore affected by jurisdictional error.

    Particulars

    •The decision of the delegate was legally unreasonable because it was manifestly unjust in circumstances and because no sensible decision-maker acting with due appreciation of her/his responsibilities would have so decided.

    •The refusal decision was legally unreasonable because the delegate failed to give adequate weight to a relevant factor of great importance, namely, the documentary evidence of the applicant’s employment history as a software engineer for Matrix Solutions in Lahore, Pakistan, and gave excessive weight to an irrelevant factor of no importance, namely, minor typographical errors that appeared in the applicant’s employment documents concerning her employer’s Website and electronic mail addresses.

    THE APPLICANT’S SUBMISSIONS

11. Counsel for the applicant submitted that the application was refused on the basis that

    
    

    cl 189.211 of Schedule 2 to the Migration Regulations 1994 Cth (“the Regulations”) had not been met. Clause 189.211(1) of the Regulations provides that an applicant for a subclass 189 visa must satisfy PIC 4020 of Schedule 4 of the Regulations.

12. PIC 4020 in turn provides that there must be no information before the Minister that the applicant has provided the Minister with either a bogus document or information that is false and misleading in a material particular in relation to the application.

13. Counsel for the applicant submitted that the notification letter by the delegate does not contain any explanation or analysis concerning the reasons why the erroneous references in the material supplied as to the correct email address of the applicant’s employer were sufficient to call into question the veracity of the entirety of the balance of the other documents/information provided which supported the applicant’s claim to having been employed by the Lahore entity of Matrix Solutions. Counsel for the applicant further submitted that the reasons also do not provide any analysis or discussion as to whether the erroneous references were material for the purposes of PIC 4020.

14. It was submitted by Counsel for the applicant, at CB36, that a misstatement, such that occurred in this case, was not sufficient to engage the application of PIC 4020. In Trivedi v Minister for Immigration and Border Protection (2014) 220 FCR 169 (“Trivedi”), the Full Court of the Federal Court held that there must be an element of purposeful fraud or deception for PIC 4020 to be applied, and it is not directed to “innocent, unintended or accidental matters”: see [32]-[33].

15. It was submitted that the element of purposeful falsehood is complexly absent in this matter. The applicant never claimed to have been employed by the Canadian firm, also known as Matrix-Solutions. The applicant’s application was entirely predicated by the claim that she was employed by the Lahore entity. It was submitted that the use of the incorrect email and web addresses was the product of a simple typographical error and that this was not a material error. There was no analysis if the error was, in fact, material. The failure of the delegate to undertake such analysis constitutes jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. The accuracy of the website and email addresses was immaterial as to the applicant’s employment claims.

16. In relation to ground two, it was submitted that it is a classic form of jurisdictional error for an administrative decision maker, such as the delegate, to consider irrelevant material and to disregard relevant material. Counsel for the applicant submitted that the delegate made precisely this kind of error in that it relied, in its consideration, on a matter wholly irrelevant to the question of the applicant’s employment history, being the question of the accuracy of the references to the website and email addresses of employer. The delegate disregarded the other material as to whether sufficient proof had been provided to substantiate the applicant’s claims to having been employed as a software engineer with the Lahore based entity.

17. In relation to ground three, it was submitted that the delegate was required to exercise the discretionary power conferred under the Migration Act1958 (Cth) (“the Act”), to determine visa applications by grant or refusal in a reasonable manner: see Minister for Immigration and Citizenship v Li (2013) HCA 18 (“Li”).  It was submitted that the delegate, who negatively determine the applicant’s visa application, reasoned both irrationally and illogically. It simply does not follow logically that the claims that the applicant had a lengthy skilled work history as a software engineer with the Lahore based entity were rendered false, simply because the letterhead which was used to document that work history contained an incorrect reference to the company’s website and email addresses.

18. Reference was made to Li at [76] where the following was said:

    As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion "if upon the facts [the result] is unreasonable or plainly unjust".

19. It was submitted that the result in this case, by any standard, was completely unreasonable and completely unjust. It was submitted that the decision made by the delegate was so arbitrary and capricious that it meets the standard of legal unreasonableness, in that, no reasonable decision-maker could have arrived at the same outcome based on the evidence and materials before them.

    THE RESPONDENT’S SUBMISSIONS

20. Counsel for the respondent submitted that the delegate refused to consider the visa application after considering the applicant’s migration agent’s submissions and finding that the explanation contained in the letters from two persons at Matrix Solutions in Lahore, was unconvincing. This was due to the fact that Matrix Solutions maintained an operational website and that it was not plausible that the errors would have gone unnoticed for the period of 2005 to 2018.

21. The delegate did not consider the purported explanation, being that the letterhead was rarely used, was a satisfactory one. Ultimately, the delegate gave greater weight to the discrepancy between the applicant’s evidence of her employment with Matrix Solutions, the information obtained by the investigation undertaken by Departmental officers, and the explanation offered by the applicant.

22. It was submitted that PIC 4020 applies whether or not the information has been provided by the applicant knowingly or unwittingly. The information must be purposely untrue so as to attract PIC 4020, although, it is not necessary for the decision maker to conclude that the applicant was aware that the information was purposely untrue in order for PIC 4020 to be engaged. An element of fraud or deception by some person is necessary to attract the operation of the provision: see Trivedi at [33] and [43]. It was submitted that the applicant’s submission at [36] does not correctly state the effect of Trivedi.

23. Ground one alleges jurisdictional error on behalf of the delegate in circumstances where evidence was provided that the correct addresses were the product of a typographical error. PIC 4020 is not directed to innocent mistakes, and was not properly engaged by the innocent typographical errors.

24. The delegate rejected the proposition that the discrepancy in the website and email address information was the product of an innocent mistake. This ground takes issue with the factual merits of the assessment. Whilst a different decision-maker might have reached a different conclusion, the delegate’s findings of fact were reasonably open to her. It was submitted that ground one is an attempt at impermissible merits review.  Whether or not there was a purposeful falsity was a question of fact for the delegate.

25. Further and specifically, the delegate explained her reasoning as to the certificates, and, in any event, there is no obligation to comment on every piece of material before the delegate to the extent of saying why she rejected a particular item, or attributed less weight to it than another item: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It was not the website and email address information that was found to be false and misleading in a material particular. It was the applicant’s claimed employment as a software engineer at Matrix Solutions. This was information that was false and misleading in a material particular because it was relevant to a criterion for the grant of a skilled visa in which she the applicant claimed points for her employment.

26. In relation to ground two, this alleged that the delegate failed to consider relevant material concerning the applicant’s employment history, being the voluminous evidence provided by the applicant in support of her employment. This material was expressly identified. The delegate did not accept that the applicant was employed with Matrix Solutions, Lahore as she claimed.

27. It submitted that ground two is similarly an attempt at impermissible merits review. The applicant suggests that the delegate considered an “irrelevant consideration”, being the accuracy of the website and email address information. However, relevant and irrelevant considerations are to be determined by reference to the construction of the statute conferring power: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend) at [39]-[40] not what applicant perceives do or do not aid in her visa application.

1. In Peko-Wallsend, Mason J (as he was then) stated at [40]:

   In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.

2. In this case, the delegate was not exercising a discretion as opposed to making a factual evaluation. The respondent submits that, in any event, the incorrect website and email address information was not a mandatory irrelevant consideration. That incorrect information was also logically probative of the genuineness of the evidence of the applicant’s employment as a software engineer, and thus the applicant’s claim skilled employment.

3. This ground takes issue with the delegate’s giving of weight to the results of the Departmental investigations over the submissions and material advanced by the applicant in explanation for the incorrect website and email address information. The delegate expressly considered the information provided by the applicant but gave weight to the information revealed by the Department.

4. Ground three alleges that the delegate’s decision was legally unreasonable as it was manifestly unjust that no sensible decision-maker would have so decided.

5. The principles concerning irrationality and illogicality in the process of administrative decision-making is set out in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131]:

   … the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

6. The test is stringent, and an applicant must demonstrate extreme illogicality or irrationality in order for the relief sought to be granted: see DAO16 v Minister for Immigration and Border Protection (2018) 258 FCR 175 at [30].

7. The applicant suggests that the delegate failed to give adequate weight to a relevant factor of great importance, being the volume of documentary evidence proving the applicant’s skilled work history as a software engineer. The difficulty for this argument is that, on the delegate’s reasoning, this evidence is false. Counsel for the respondent conceded that the delegate’s decision can be characterised as harsh from the perspective of the applicant. Perhaps unsurprisingly, the applicant vehemently disagrees with that decision. However, the delegate provided a rational and logical explanation for the factual findings she arrived at. They reveal an evident and intelligible justification for her ultimate factual conclusions. Matters of the weight to be accorded to evidence is a matter for the delegate to determine in the proper exercise of their function: see Peko-Wallsend at [41] per Mason J. Further, as His Honour stated at [42]:

   …a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

   CONSIDERATION

8. It is common ground between the applicant and the respondent that the issue in this matter revolves around whether the material supplied was false in a material particular. It is not suggested that the documents were bogus.

9. The Department conducted an “open search” as to the employer and found discrepancies. The discrepancy is based on the fact that there is another Matrix Solutions in Canada that uses the electronic contact details set out in the various pieces of correspondence provided initially by the applicant for Matrix Solutions of Lahore. The open searches, however, did ascertain that Matrix Solutions in Lahore had been in existence since 2003 and that the company’s listed address and telephone contact details matched those shown in the documentation provided by the applicant. This was accepted by the delegate.

10. Having ascertained the discrepancy, the applicant was contacted and provided further information that sought to explain the discrepancy, including statements from the CEO and HR Manager of Matrix Solutions, Lahore. While the explanation is perhaps not the most convincing, it was still an explanation. Further, no direct contact was made with Matrix Solutions in Lahore to confirm any of the material supplied by the applicant.

11. The difficulty with the decision is that the delegate has used the admitted discrepancy in the electronic contact details for Matrix Solutions, Lahore to form a conclusion that the applicant was not employed with Matrix Solutions in Lahore. It was on this basis that the delegate concluded that the material provided by the applicant was false and misleading in a material particular, and thus PIC 4020 had not been satisfied and cl 189.211 of the Regulations had not been met.

12. Counsel for the respondent conceded that the delegate’s decision can be characterised as a “harsh one” from the perspective of the applicant.

13. The test for legal unreasonableness is “stringent” and will only arise in rare cases. It is invariably fact dependent. Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: see Li at [30] and [113].

14. It will be insufficient to ground jurisdictional error if different minds might reach different conclusions on a jurisdictional fact. The test for illogicality or irrationality was stated in SZMDS at [131] as follows:

    … must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

15. Even with the above cautions in mind, the Court is unable to draw the conclusion, without more information, that the fact that there was a discrepancy in the contact details of Matrix Solutions Lahore, that this was sufficient evidence, bearing in mind all the documentation that was provided by the applicant, together with the explanation proffered for the discrepancy, to conclude that the applicant was not employed in an information technology position with that company.

16. In the Court’s view, there is simply a gap in the logical process from being satisfied that there was an admitted discrepancy in the contact details for Matrix Solutions, Lahore to the conclusion that the applicant was not employed there as claimed. The reasoning lacks a necessary intervening factual step that safely allows the conclusion reached by the delegate to be reached.

17. The factual reasoning the delegate engaged in, that due to the discrepancy in the contact details, the applicant was simply not employed as claimed, in the Court’s view, is irrational and illogical. This is not a matter upon which reasonable minds presented with the same factual material could come to different conclusions. This irrationality or illogicality reaches the threshold level for the Court to intervene in its supervisory role.

    CONCLUSION

18. Accordingly, ground three of the application is made out and the application is upheld. It is not necessary in the circumstances to deal with grounds one and two of the application.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       12 May 2021