GAUR v Minister for Immigration

[2018] FCCA 2028

FEDERAL CIRCUIT COURT OF AUSTRALIA

GAUR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2028

Catchwords:
MIGRATION – Administrative Appeals Tribunal –– Skilled (Residence) (Class VB) visa – whether there was no evidence that the applicant had provided a bogus document to the Minister – applicant having provided a TRA skills assessment – a copy of the applicant’s work reference that the skills assessment was based on was found in the possession of a notorious fraudster – where the Tribunal gave the applicant a summary of adverse information obtained from the prosecution file of the fraudster – whether the Tribunal denied the applicant procedural fairness by not giving the applicant certain documents relied on in the prosecution of the fraudster – whether the Tribunal denied the applicant procedural fairness by not giving the applicant the details of qualifying statements that the fraudster made in his dealings with the prosecution – whether the Tribunal relied on the whole of the material it received from the prosecution brief.

Legislation:

Migration Act 1958, ss. 359A, 360, 362A

Migration Regulations 1994, cl.885.225 of Schedule 2, Public Interest Criterion 4020 of Schedule 4

Cases cited:

Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157
Singh v Minister for Immigration and Border Protection [2017] FCAFC 220

Applicant: KAPIL GAUR

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1670 of 2015

Judgment of: Judge Riley

Hearing date: 25 May 2018

Date of last submission: 25 May 2018

Delivered at: Melbourne

Delivered on: 26 July 2018

REPRESENTATION

Counsel for the applicant: Siobhan Kelly

Solicitors for the applicant: Carina Ford Immigration Lawyers

Counsel for the first respondent:	Andrew Yuile
Counsel for the second respondent:	No appearance

Solicitors for the respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed on 21 July 2015 and amended on 24 July 2017 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1670 of 2015

KAPIL GAUR

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Migration Review Tribunal (“the Tribunal”).  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a Skilled (Residence) (Class VB) visa. 

Background

1. In his written submissions, the applicant set out the background to this matter in the following terms:

   3.On 3 February 2012, the Applicant applied for the visa (CB 1). As part of his application, the Applicant provided a Migration Skills Assessment from TRA dated 11 November 2009, confirming that the Applicant had received a positive skill assessment in the occupation of cook (CB 79-80), together with a reference letter from [Mr Y] - the owner and head chef at “Capriccio” - confirming his voluntary work as a cook (CB 91-94).

   4. On 30 October 2014, the Delegate invited the Applicant to comment on information (CB 128-132) that suggested that the Applicant did not meet Public Interest Criteria 4020 (PIC4020) because the skill assessment from TRA was bogus, on the basis that the Applicant had provided a false or misleading statement to TRA about his 900 hours of work experience at Capriccio (CB 129-130). The Delegate indicated that the information was drawn from material related to criminal proceedings that were then on foot against an unnamed individual who had admitted that he had been involved in fraudulently creating employer work reference letters (CB 129).

   5. On 31 October 2014, the Applicant’s then legal representative provided an email response (CB 136). The thrust of the response was that the issue had been raised in the Applicant’s previous visa application for a subclass 485 visa, which had been granted. The representative supplied copies of the material that had satisfied the previous delegate of the Applicant’s bona fides (CB 148-151).

   6. On 30 January 2015, the Delegate refused the Applicant’s application for the visa (CB 163-168). In summary, the Delegate concluded that there was insufficient evidence substantiating the Applicant’s employment claims to counter the material suggesting the documents were fraudulent (CB 167).

   7. On 12 February 2015, the Applicant applied to the Tribunal for review of the Delegate’s decision.

   8. On 26 March 2015, the Tribunal provided the Department with a Summons to Produce Documents (CB 174-5). The documents covered by the Summons relate to the investigations against [Mr X]. It appears that, in response to the Summons, the Department produced a number of redacted reference letters (CB 177-184), as well as the statement made to the AFP by [Mr X] (CB 185-193).

   9. On 17 April 2015, the Tribunal sent to the Applicant, by letter, an invitation to comment (the Invitation to Comment Letter) (CB 196-204). On its face, the information behind the Invitation to Comment Letter is drawn from:

   9.1. an “Agreed Summary of Material Facts” (CB 197);

   9.2. records from the County Court of Victoria (CB 198);

   9.3. a taped record of interview with [Mr X] (CB 198);

   9.4. [Mr X’s] statement to the AFP (CB 198); and

   9.5. exhibits from the County Court proceeding (CB 200).

   There is nothing to suggest that these documents were ever given to the Applicant.

   10. The Applicant’s legal representative responded to the Tribunal’s Invitation to Comment Letter on 1 May 2015 (CB 205-206), and attached a statutory declaration by the Applicant (CB 207-208). The representative reiterated the Applicant’s denials of being involved in any fraud. Further, the representative requested that the Tribunal provide evidence of certain matters.

   11. On 4 June 2015, the Applicant appeared at the Tribunal hearing with his legal representative (CB 225-228). The Tribunal took oral evidence from the Applicant’s former supervisor, [Mr Y] (CB 225).

   12. On 29 June 2015, the Tribunal affirmed the decision (CB 232-262).

2. The Minister accepted the accuracy of that summary, with the riders that:

   (a)the applicant did not request any documents pursuant to s.362A of the Migration Act 1958 (“the Act”); and

   (b)the Tribunal did not provide to the applicant a copy of the documents mentioned in paragraph 9 of the applicant’s written submissions, but did provide a summary of adverse information to the applicant in the form of a letter under s.359A of the Act.

The Tribunal’s decision

1. The Tribunal concluded that the applicant did not meet public interest criterion 4020 because:

   a)there was evidence that the applicant had provided to the Minister a bogus document;

   b)the bogus document was a skills assessment from Trades Recognition Australia that was based on a false or misleading statement consisting of a false work reference; and

   c)a copy of the applicant’s false work reference was found on a USB in the possession of Mr X, who was convicted of charges relating to migration fraud in November 2011. 

2. The Tribunal considered that there was no proper basis in this case to waive the requirements of public interest criterion 4020.

Ground 1

1. The first ground of review in the application filed on 21 July 2015 and amended on 24 July 2017 (“the application”) was withdrawn by the applicant at the final hearing.

Ground 2

1. The second ground of review in the application is:

   The Tribunal committed jurisdictional error by breaching s.362A of the Act.

   Particulars

   (a)The Tribunal relied on written material to which the applicant was not given access, including:

   (i)an ‘Agreed Summary of Material Facts’;

   (ii)advice that the applicant’s employer was implicated in a fraud committed by [Mr X];

   (iii)a ‘departmental court exhibit report’;

   (iv)admissions made by [Mr X] to the County Court; and

   (v)a summary of an interview conducted with [Mr X].

2. At the hearing before this court, the applicant acknowledged that he was unable to succeed on this ground because he had not made a request for the documents under s.362A of the Act. The applicant accepted that this court is bound by the decision of the Full Court of the Federal Court in Singh v Minister for Immigration and Border Protection [2017] FCAFC 220. The applicant maintained the point for appeal purposes. However, it is clear that, in this court, ground 2 cannot be made out.

Ground 3

1. The third ground of review in the application is:

   The Tribunal committed jurisdictional error by breaching s.360 of the Act.

   Particulars

   (a)The hearing conducted by the Tribunal was not fair and the applicant did not have a proper opportunity to advance his case in the absence of the written material referred to in the particulars subjoined to paragraph 2 above.

   (b)Further or alternatively, the ‘Agreed Summary of Material Facts’ (at p 7) and witness statement of [Mr X] (at p 6) contained important qualifications to other evidence that was treated by the Tribunal, and relied upon by the Tribunal, as adverse to the applicant. Those qualifications were not disclosed to the applicant and he was denied the opportunity of, in light of the qualification from [Mr X], making submissions about the weight to be afforded the material relating to [Mr X] and/or making forensic decisions in the conduct of his case.

2. The applicant had three arguments in relation to this ground.

3. The applicant’s first argument was that the material listed in ground 2 (“the material”), taken as a whole, was adverse to the applicant’s case and should have been put to the applicant in its entirety for comment.

4. The applicant accepted that the Tribunal had given him a summary of the material in a s.359A letter and sought his comment. However, the applicant argued that the material contained two qualifying statements that could have assisted him, but which the Tribunal did not include in the summary in the s.359A letter. The applicant did not suggest that the qualifying statements were adverse to the applicant. On the contrary, the applicant said that the qualifying statements could have assisted him.

5. The first qualifying statement was in a summary of agreed facts used in the prosecution of Mr X and is as follows:

   He would always push the students to do some training however, he had no way of knowing whether they actually completed the training. Some of the students did not even go in [to the employers] as they were too busy (Q&A 161-174).

6. The second qualifying statement was in a witness statement made by Mr X to the Australian Federal Police and is as follows:

   I never kept a log book of the hours that the students claimed to have worked with each employer.

7. In developing his first argument, the applicant said that the Tribunal did not rely only on specific parts of the agreed statement of facts or the witness statement, but relied on the whole of those documents, including their provenance and tenor. The applicant said that those documents, as a whole, were adverse. Therefore, the applicant argued, the whole of the agreed statement of facts and the whole witness statement should have been put to the applicant for comment, either by providing a copy of them or by providing full particulars.

8. In support of that contention, the applicant noted that the Tribunal said at paragraph 98 of its reasons for decision:

   Accordingly, given the evidence surrounding Mr [X]’s conviction and his association with Mr [Y], the Tribunal is not satisfied that the evidence presented by the applicant and his witness remove the basis for reasonably suspecting that the skills assessment he obtained in November 2009 from Trades Recognition Australia was because of a false or misleading statement about his work experience at Capriccio Pizza Café. 

9. The applicant said that statement was a global and impressionistic statement that showed that the Tribunal had relied on the witness statement and statement of agreed facts in their entirety.

10. Reading the Tribunal’s reasons as a whole, it is clear that paragraph 98 was a summary of its conclusions.  That is obvious from the first word of paragraph 98, which is Accordingly.  The preceding paragraphs set out the Tribunal’s detailed reasons for reaching the conclusions set out in paragraph 98.  Those reasons rely on specific aspects of the witness statement and the statement of agreed facts.

11. It is true that the Tribunal relied on the provenance of the materials. That was entirely appropriate. However, that did not mean that the Tribunal was required under s.359A of the Act to provide the whole of the materials to the applicant. Section 359A of the Act relevantly requires the Tribunal to provide particulars of information that would be the reason, or a part of the reason, for affirming the decision that is under review.  The Tribunal is not obliged to give particulars of information that would have been a reason for not affirming the decision under review.

12. Even if the common law applied in this case, which it does not, the only requirement would have been to give the applicant the gravamen of adverse information that the Tribunal thought it might rely on.  The Tribunal gave the gravamen of that information.

13. In the present case, the Tribunal told the applicant in its s.359A letter that it had numerous documents before it including the agreed summary of material facts in Mr X’s criminal prosecution, his witness statement, exhibits from the County Court proceedings, a large number of work references, and a summary of a taped record of interview. The applicant could have asked for copies of them under s.362A of the Act if he had wanted them.

14. I do not accept the applicant’s first argument in relation to ground 3.

15. The applicant’s second argument was that the hearing was unfair because he was led to believe that he had all relevant material, and that impaired his ability to decide whether to request further information under s.362A of the Act.

16. The applicant’s second argument was based on the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157. In that case, which also concerned the activities of Mr X, the applicant made a request for certain documents under s.362A of the Act. The Tribunal, under a misapprehension as to the law, did not provide all of them. The Full Court held that the Tribunal’s decision that Mr Dhillon did not meet public interest criterion 4020 could not be supported, in circumstances where that aspect of the decision was based on an improper refusal of the request under s.362A of the Act. However, the Full Court held that the Tribunal’s decision in that case could be supported on other grounds, and allowed the Minister’s appeal.

17. In any event, the Full Court said in Dhillon at [25] that:

    … What was absent from the information in the particulars given under s 359A, however, was the statement found in the redacted material that Mr [X] had no way of knowing whether the students actually completed the training. ... However, whilst it may be accepted, as the Minister contended, that the Tribunal had no obligation under s 359A(1) to give Mr Dhillon particulars of the information in the redacted material to the extent that it was not adverse, the Tribunal also had obligations under s 357A(3) to act in a way that is fair and just, and under s 360(1) to provide Mr Dhillon with a real chance to present his case. The Tribunal’s decision not to give Mr Dhillon access to the redacted material (by wrongly deciding not to provide access under s 362A(1)) meant that the Tribunal decided the Public Interest Criterion without the fair hearing to which Mr Dhillon was entitled under s 360 of the Migration Act.

18. The applicant argued that the Full Court in Dhillon accepted that the qualifying statements were vital to the applicant’s case and the Tribunal was obliged to provide them to the applicant under s.360 of the Act.

19. The Minister argued that Dhillon was based critically on the Tribunal’s erroneous failure to provide documents in answer to a request under s.362A of the Act. The Minister argued that Dhillon did not concern a situation such as the present in which there was no request under s.362A of the Act.

20. I accept the Minister’s submissions on this point.  It seems to me to accord with the proper reading of the last sentence of paragraph 25 of Dhillon. The suggestion that s.360 of the Act would require the Tribunal to provide to an applicant every document, or the gravamen of every aspect of every document, that is before the Tribunal that might on some construction assist an applicant would be a very significant alteration to the law. It seems unlikely that the Full Court meant to extend the law in that way in Dhillon.  Moreover, paragraph 25 of Dhillon was obiter, because the case was decided on another basis. 

21. I do not accept the applicant’s claim that he was misled into believing he had all relevant material. The Tribunal’s s.359A letter quotes extensively from Mr X’s witness statement but shows, with the use of ellipses, that whole passages and paragraphs were omitted.

22. The s.359A letter also indicated clearly that the Tribunal had numerous other specified documents before it that it had taken certain points from and mentioned the s.359A letter. It is apparent from the s.359A letter that the Tribunal did not attempt to give the applicant an exhaustive summary of every document in its possession. The applicant ought to have understood that the Tribunal had material that it had not summarised for the applicant.

23. Moreover, the s.359A letter itself stated that the Tribunal was required to invite the applicant to respond to information that would be a reason for affirming the decision under review. It is obvious from that statement of the purpose of the s.359A letter that the Tribunal was not using it to give the applicant every document, or a summary of every document, that it had.

24. I do not accept the second aspect of the applicant’s arguments in relation to ground 3.

25. The applicant’s third argument was that the qualifying statements were relevant and probative and were not considered by the Tribunal.  The applicant relied on Dhillon to say that the qualifying statements were relevant and probative.  That much may be accepted.  The applicant then argued that, because the Tribunal had not mentioned the qualifying statements, the court should infer that the Tribunal had failed to have regard to them and had thereby denied the applicant procedural fairness.  The applicant also argued that, based on statements in Dhillon, if the applicant had been aware of the qualifying statements, he could have made different forensic decisions, such as asking the Tribunal to call Mr X as a witness, so there was a practical injustice.

26. It is well-established that the Tribunal is not obliged to refer to every item of evidence, even items of evidence that might support an applicant’s case.  That is especially so where the Tribunal’s enquiry is whether there is no evidence of a particular matter.  I do not accept that the Tribunal’s failure to refer to the qualifying statements in its reasons for decision meant that the Tribunal fell into jurisdictional error.  There was ample, probative evidence that a bogus document had been submitted to the Minister. It was not necessary for the Tribunal to refer to evidence that might, on some construction, have detracted from that conclusion.

27. In Dhillon, the Full Court said at [15] that the applicant, armed with the qualifying statements, could have made different forensic decisions, such as asking the Tribunal to call Mr X OR the applicant’s employer.  In the present case, the applicant did ask the Tribunal to call his employer, Mr Y, and the Tribunal did so.  The Tribunal heard Mr Y’s evidence and took it into account. However, the Tribunal did not accept that Mr Y’s evidence outweighed the other evidence in the case. 

1. Moreover, the applicant did not explain to the court how calling Mr X, in addition to Mr Y, might have assisted the applicant’s case.  Mr Y could be expected to have had much more detailed information about the applicant’s working hours and so on than Mr X.  The applicant did not point to anything that Mr X could have added to his statements in the prosecution brief.  Consequently, I do not accept that, in the present case, there was a practical injustice as alleged.  I do not accept the third aspect of the ground 3.

Conclusion

1. As the applicant’s ground of review has not been made out, the application will be dismissed with costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 26 July 2018