Gill v Minister for Immigration

[2016] FCCA 1868

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1868

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Skilled Provisional (Class VC) visa – whether the Tribunal erred in making adverse credibility findings against the applicant – whether a miscommunication between the Tribunal and the applicant gives rise to a jurisdictional error – whether Tribunal committed error of fact or jurisdictional error – whether the Tribunal member mishearing the applicant gave rise to procedural unfairness – whether the Tribunal closed its mind to the applicant’s evidence – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.97(c), 476

Applicant: SIKANDER SINGH GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3014 of 2014

Judgment of: Judge Street

Hearing date: 21 July 2016

Date of Last Submission: 21 July 2016

Delivered at: Sydney

Delivered on: 21 July 2016

REPRESENTATION

Counsel for the Applicant: Mr D Hume

Solicitors for the Applicant: Christopher Levingston & Associates

Counsel for the First Respondent: Mr G Johnson

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The name of the Second Respondent be changed to the Administrative Appeals Tribunal and the need to file any further document in this regard is dispensed with. 

2. The Applicant has leave to rely on the amended application filed on 7 July 2016.

3. The amended application is dismissed.

4. The Applicant pay the costs of the First Respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3014 of 2014

SIKANDER SINGH GILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 25 September 2014 affirming the decision of the delegate not to grant the applicant a Skilled Provisional (Class VC) visa.

2. The applicant applied for the visa on 12 March 2009, answering questions in the application that all the information was correct and identifying a skills assessment with a nominated occupation of cook provided by the Trades Recognition Australia dated 31 October 2008 with a specific reference number.

3. In that application, the applicant also identified an assertion of his position as cook at a particular employer, being the Oakley Catering JMARK, at a particular address from 26 April 2007 until 17 July 2008.  Included in the application was a description of duties as follows:  kitchen duties, cut, chop, peel, wash all kinds of fruits and vegetable, following health, safety, hygiene procedures, frying, baking, roasting, grilling, cooking all menu and entrée items, customer service and equipment duties.

4. The applicant provided in support of his application a Trades Recognition Australia letter dated 31 October 2008.  That document identified that the evidence provided by the applicant had satisfied 900 hours directly-related work experience.  The application assessment identified that the Trades Recognition Australia had been provided with work experience and workplace assessment documents.  It purported to certify that the applicant had had 900 hours work experience in relation to an assessed occupation of cook.  That assessment was based on a document provided by the applicant to the Trades Recognition Australia dated 17 July 2008 purporting to be a certification by a Mr Malcolm Phelps, head chef/catering manager.

5. That document identified a bistro at a gaming club which was open for lunch Monday to Saturday and dinner from Thursday to Saturday.  The document purported to certify that the applicant had completed his training at the particular RSL, Oasis Bistro, from April 2007 up until 17 July 2008.  The document alleged that the applicant worked and trained as a cook and attained over 900 hours commercial cooking experience under the supervision of Malcolm Phelps, head chef/catering manager.  The document noted:

   As part of his training and working conditions, Sikander had to ensure that his knowledge of menu items was sound and he was able to follow a consistent recipe for all items prepared.  He has also had to be aware of the dietary content of dishes and the effect that cooking has on the nutritional value of food.

6. There was a reference to the applicant having to organise and prioritise tasks to ensure the most effective customer service, as well as to understand customer needs and preference.  There was a reference to the applicant having served food and assisted the head chef during service periods, at times working under pressure to avoid delays.  There is a reference to workplace hygiene and duties involving the receiving and storing of goods.

7. Under the heading “Kitchen Duties”, the document provided as follows:

   Kitchen Duties:

   Prepared entrée items and light meals such as:

   1.     Soup of the Day.

   2.     Toasted Ham, Cheese and Tomato sandwich.

   3.     Diggers Hamburger.

   4.     Roast Beef Roll with Salad

   5.     Diggers Steak or Chicken Burger.

   Washed and prepared fruits and vegetables for accompanying salads and vegetables. Used proper knife handling and cutting techniques to chop, peel, cut and seed fruits and vegetables:

   1.     Side dish of roasted vegetables.

   2.     Side dish of salad

   3.     Side dish of chips

   Roasted, Deep Fried, Shallow Fried, Grilled and Baked vegetables, cheese, seafood and meat for dishes such as:

   1.     Lambs Fry and Bacon.

   2.     Rissoles.

   3.     Bangers and Garlic Mash.

   4.     Chicken Schnitzel/ Veal Schnitzel.

   5.     Mixed Grill.

   6.     Roast of the Day.

   7.     Beer Battered Fish.

   8.     Rump Steak.

   Prepared sauces for Rump Steak

   1.     Pepper sauce.

   2.     Garlic sauce.

   3.     Dianne sauce.

8. The letter then referred to equipment and identified different equipment and utensils.  The document identified an alleged enthusiastic and refreshing approach by the applicant to his duties, as well as the ability to work with all staff and management.  The letter purported to identify the applicant as a competent and confident cook, able to prepare “the menu items independently”, performing at a trade skill level.

9. The letter referred to the transition of the ownership of the restaurant going to the author’s son, Robert, and for that reason the author being temporarily overseas.

10. The delegate identified that the applicant had to satisfy PIC 4020, which provides as follows:

    4020     (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.

    Note:         For the definition of bogus document , see subsection 5(1) of the Act.

11. The delegate identified that the Trades Recognition Australia document dated 31 October 2008 was provided by the applicant to the Department on 30 March 2009.  The delegate identified the receipt by the Tribunal of the document in support of the TRA document, being a work experience letter dated 17 July 2008 signed by Malcolm Phelps.  The delegate reported that on 16 May 2011, the former head chef and catering manager advised the Department that he was aware that some of the references for the Oakley Catering JMARK, were not genuine and had not been issued by him.

12. The delegate noted that on 15 May 2012 the applicant was provided with an opportunity to comment on that information and given 28 days to respond.  On 13 July 2012, the delegate records that the applicant responded to the invitation to comment and provided a personal statutory declaration and evidence of his current and previous employment.  The delegate noted that the personal statement mainly declared that the applicant was genuinely employed on a voluntary basis and provided no information that can be independently verified as to his voluntary work experience at the particular bistro.

13. The delegate also referred to a reference provided asserting the applicant as assisting the chef and with payslips that described the applicant as kitchen attendant grade 1. The delegate observed that that material did not support the declaration that the applicant was employed as an assistant cook. The delegate concluded that the TRA assessment submitted to the Department on 30 March 2009 was bogus within the definition in s.97(c) of the Act as it then was. The delegate found that the applicant had not raised any compassionate or compelling circumstance for the purpose of a PIC 4020(4) and declined to grant the applicant a visa.

14. The applicant applied for a review on 24 August 2012.  By letter dated 21 July 2014, the Tribunal invited the applicant to attend a hearing to take place on 5 September.  The applicant attended on that date to give evidence and present arguments.  The Tribunal identified what occurred at the hearing and identified the issue of whether the applicant had given or caused to be given a bogus document or information that is false is misleading in a material particular.

15. The Tribunal summarised the applicant’s evidence and then provided reasons for finding that it did not accept that the applicant performed the work experience described in the work experience letter dated 17 July 2008.  The Tribunal made reference to the applicant being able to describe some aspects about the bistro, but found that it was not sufficient to overcome the significant concerns about the applicant’s lack of knowledge of the cooking tasks detailed in his work experience letter.

16. The Tribunal was prepared to accept that the applicant had visited the premises of the bistro and may have met Malcolm Phelps and even performed some basic kitchen-hand duties, but did not accept that the contents of the applicant’s work experience letter were genuine, or that he had completed the duties and responsibilities detailed in the letter, including over 900 hours of commercial cooking experience. 

17. The Tribunal took into account the time that had passed in relation to its credit findings and found that it did not accept that the applicant would not be able to remember basic elements of the dishes it was claimed he cooked and/or prepared.  It was in those circumstances the Tribunal found the applicant’s evidence to be lacking in creditability and detail. 

18. The Tribunal found that the work experience letter was not genuine and found that it reasonably suspects the Trade Recognition Australia document was obtained based on a false or misleading statement, being the information in the work experience letter purportedly issued by Malcolm Phelps. The Tribunal found that the Trades Recognition Australia document dated 31 October 2008 provided by the applicant to the Department was a bogus document within s.97(c) of the Act.

19. The Tribunal found in light of the above findings it was not satisfied there is no evidence before the Tribunal that the applicant had given or caused to be given to the Minister and/or an officer a bogus document in relation to the application for the visa under review.  It was in those circumstances the Tribunal found that the requirements of PIC 4020(1) were not met by the applicant. 

20. The Tribunal went on to consider the issue of 4020(4) as to whether there were compelling circumstances to waive the requirements of 4020(1) and (2) and found that there were not. 

21. The grounds of the amended application, with ground 1 abandoned, are as follows. 

    2. The Tribunal jurisdictionally erred in making findings that the applicant's recollection of ingredients used to cook risotto and chicken schnitzel were flawed.

    Particulars

    (i) The Tribunal made a critical finding that the applicant did not perform the work experience described in the work experience letter: see Tribunal's reasons at [22].

    (ii) The Tribunal said that that finding was based, in part, on a copy of the work experience letter: see Tribunal's reasons at [22].

    (iii)A critical element of the Tribunal's reasoning to that finding was its view that the applicant's evidence that he prepared risotto using rice and flour was false: see Tribunal's reasons at [21]. The work experience letter relied on by the Tribunal did not indicate that the applicant had assisted in making risotto. In any event, risotto can be made with rice and flour and there was no evidence to the contrary before the Tribunal. The Tribunal's view was therefore formed without probative evidence, was formed illogically or irrationally, was formed unreasonably, was formed without an evident or intelligible justification or was otherwise not open to form.

    (iv) A further critical element of the Tribunal’s reasoning to that finding was its view that the applicant’s evidence that he crumbed schnitzels using baking powder was false: see Tribunal’s reasons at [21]. The work experience letter relied on by the Tribunal indicated that the applicant had assisted in frying, but not in fully cooking, schnitzel. So far as the Tribunal reasoned that the applicant would have known how schnitzels were cooked if the work experience letter were correct, it failed to properly consider that letter. Further, meat can be crumbed using baking powder and there was no evidence to the contrary before the Tribunal. The Tribunal's view was therefore formed without probative evidence, was formed illogically or irrationally, was formed unreasonably, was formed without an evident or intelligible justification or was otherwise not open to form.

    3.The Tribunal jurisdictionally erred in forming its view that the applicant only mentioned one of the most popular menu items because, in forming that view, the Tribunal:

    (a) failed to afford the applicant procedural fairness;

    (b) otherwise, acted unreasonably, irrationally or without probative evidence.

    Particulars

    (i) The Tribunal persistently misheard the applicant's evidence that he had cooked rissoles, not risottos. That was, in the circumstances, a failure to afford the applicant practical fairness. Alternatively, it was a failure to consider a properly articulated claim. Further, that displayed unreasonableness or irrationality, Rissoles were one of the items mentioned in the work experience letter.

    (ii) Further, one of the three items mentioned by the applicant was chicken parma. The work experience letter was wholly consistent with chicken parma being one of the most popular menu items in the restaurant. The Tribunal acted unreasonably, illogically, without probative evidence or without an evident or intelligible justification in forming an adverse view against the applicant because chicken parma was not expressly mentioned in the work experience letter.

    (iii)The Tribunal formed an adverse view against the applicant because the Tribunal believed that only one of the three most popular menu items he had mentioned was referred to in the work experience letter: see Tribunal's reasons at [22]. In fact, all three of the items mentioned by the applicant were directly or indirectly mentioned in the work experience letter. The Tribunal's reasoning to the contrary displayed unreasonableness, illogicality, an absence of probative evidence or an absence of evident and intelligible justification.

    3. The Tribunal jurisdictionally erred in forming its view that the applicant only mentioned one of the most popular menu items because, in forming that view, the Tribunal:

    (a) failed to afford the applicant procedural fairness;

    (b) otherwise, acted unreasonably, irrationally or without probative evidence.

    Particulars

    (i) The Tribunal persistently misheard the applicant's evidence that he had cooked rissoles, not risottos. That was, in the circumstances, a failure to afford the applicant practical fairness. Alternatively, it was a failure to consider a properly articulated claim. Further, that displayed unreasonableness or irrationality. Rissoles were one of the items mentioned in the work experience letter.

    (ii) Further, one of the three items mentioned by the applicant was chicken parma. The work experience letter was wholly consistent with chicken parma being one of the most popular menu items in the restaurant. The Tribunal acted unreasonably, illogically, without probative evidence or without an evident or intelligible justification in forming an adverse view against the applicant because chicken parma was not expressly mentioned in the work experience letter.

    (iii)The Tribunal formed an adverse view against the applicant because the Tribunal believed that only one of the three most popular menu items he had mentioned was referred to in the work experience letter: see Tribunal 's reasons at [221. In fact, all three of the items mentioned by the applicant were directly or indirectly mentioned in the work experience letter. The Tribunal's reasoning to the contrary displayed unreasonableness, illogicality, an absence of probative evidence or an absence of evident and intelligible justification.

22. Despite the Court having made orders on 5 March 2015 providing the applicant with an opportunity to file affidavit evidence, it was not until 7 July 2016 that the affidavit was filed purporting to annex an extract from minute 21.09 to minute 22.59 of the transcript.  That affidavit also annexed the USB containing an audio recording of the hearing.  A further affidavit was filed on behalf of the applicant dated 20 July 2016 that again purported to make reference to only a limited extract from the hearing.

1. The Court raised with the applicant’s counsel the question of why a transcript had not been prepared of the hearing.  The proposition advanced was that it was only the particular section of the transcript that the applicant wished to rely upon in relation to issues concerning alleged unfairness and/or illogicality or irrationality in respect of the hearing and findings of the Tribunal. 

2. Ordinarily, the Court expects the whole of the transcript to be tendered if there is to be an issue raised involving what has occurred at the hearing before the Tribunal. The Court had played the whole of the audio hearing and then heard submissions from both counsel. In the course of hearing submissions on behalf of the applicant, the Court had replayed a section of the transcript. 

3. The section of the transcript replayed supports that there was a mishearing by the Tribunal member in relation to a question asked in respect of one of the items described by the applicant as a popular dish. I find that the Tribunal member understood the applicant to have responded that one of the popular dishes was “risotto”, whereas in fact what the applicant had said was a literal pronunciation of the word “rissoles”, which the applicant pronounced phonetically as “r-i-z-o-l-o-s”.

4. Relevantly, the Tribunal member raised with the applicant how the item that the Tribunal had misheard was prepared.  At the commencement of the hearing, the Tribunal member explained to the applicant that if the applicant did not understand anything said by the Tribunal the applicant was to raise that issue, and the applicant confirmed that he understood it had been said by the Tribunal member.

5. Having listened to the audio, it is clear that the applicant understood the Tribunal was asking about what the applicant called “rizolos”, and the Tribunal member thought the applicant was responding in relation to risotto. Counsel for the applicant submitted that this was a material error by the Tribunal that effectively coloured the Tribunal’s approach to the balance of the applicant’s evidence in the hearing, as well as having material significance in relation to the credibility findings made by the Tribunal adverse to the applicant. Counsel for the applicant also identified how that misunderstanding by the delegate of the applicant’s response meant that the applicant had identified more than one of the items as being a popular dish on the non-exhaustive menu set out in a letter dated 17 July 2008.

6. Counsel for the applicant contended that this reference to only one of their most popular items on the menu as described was a material part of the Tribunal’s reasoning in the adverse credibility findings in relation to the applicant.  Counsel for the applicant submitted that the Tribunal’s finding in relation to risotto was not supported by any evidence and that the adverse credibility finding in relation to the work experience letter was unreasonable, illogical or irrational by reason of the error made by the Tribunal in relation to how risotto was cooked.

7. It was submitted on behalf of the applicant that there was no intelligible justification for the Tribunal’s finding in relation to the criticisms concerning risotto and it was submitted that this demonstrated that the Tribunal had failed to properly consider the material before it.  It was submitted that the reference to risotto by the Tribunal was a critical finding underpinning the decision of the Tribunal and meant that the decision was affected by unreasonableness.

8. It was also submitted that the Tribunal’s mishearing of the word “risotto” displayed a breach of procedural fairness or other illogicality or unreasonableness in the finding of critical facts.  It was also submitted that the reference by the Tribunal to chicken parmigiana was not correct, as the applicant had only referred to chicken parma.  It was submitted that chicken parmigiana might also be described as chicken schnitzel.  It was also contended that the reference to chicken parma not being on the menu was a matter in respect of which the letter did not purport to be exhaustive.

9. Having listened to the transcript and taking into account the material that has been admitted into evidence, the Court is satisfied that the applicant had a genuine and meaningful hearing.  This was a case where there were a multitude of inconsistencies in relation to the applicant’s evidence, a large number of which the Tribunal made reference to.  The error in relation to risotto was an error in finding of fact and one which was entirely understandable, given the applicant’s pronunciation of rissoles in the phonetic manner “rizolos”.

10. Indeed that pronunciation of “rizolos” was on one view entirely consistent with the applicant not having any understanding of the menu and “rizolos” was not the item “rissoles”. The applicant could not explain how “rizolos” were made. It was the lack of understanding of the menu and how to make the items named that were the focus of questions by the Tribunal.

11. The Tribunal provided comprehensive reasons in relation to the adverse credibility findings that extended well beyond the matter the subject of an error in relation to risotto.  Those adverse credibility findings were manifestly open.  The contradictions between the applicant’s evidence and the letter dated 17 July 2008 are ones that extended well beyond any issue concerning the description of how to make risotto and well beyond whether there was more than one of the items correctly described on the menu as a popular dish. The error as to the risotto and the arguable error about the number of dishes are not material to the adverse findings by the Tribunal.

12. Reference was made to a combination of items which the work experience letter purported to identify the applicant as having acquired knowledge of the menu items that was sound and, relevantly, the Tribunal said:

    In relation to these items, the applicant said he could not remember any of the soup of the day examples, toasted sandwiches were not on the menu and he could not name Digger’s Burgers, although he did say he prepared chicken burgers and ham and cheese burgers.

13. The Tribunal made reference to the sauces and identified that the applicant could only name one of the three sauces listed in the work experience and that the applicant could not say how to make it.  The reference to the applicant’s oral evidence at the hearing in finding that it did not accept that the applicant had performed the work experience described in the work experience letter was a finding that cannot be said to be unreasonable and was clearly open on the material before the Tribunal.  The reference to the applicant’s lack of knowledge of cooking tasks detailed in his work experience letter go well beyond the limited errors relating to risotto or the number of popular dishes on the menu that were identified by counsel for the applicant. The adverse credit findings were not founded on these errors of fact.

14. It is clear from the audio tape that the Tribunal raised its concern in relation to the applicant’s credit on a number of occasions and that the Tribunal provided the applicant with a proper opportunity to respond in relation to its credibility concerns.  Even in relation to the issue of how to make risotto, the Tribunal clearly gave the applicant a further opportunity to provide a satisfactory explanation.  None was forthcoming from the applicant.

15. I find that the errors in relation to risotto and the number of popular dishes made by the Tribunal were no more than mere errors of fact and had no material impact on the adverse credibility findings made by the Tribunal.  The error in relation to risotto was not a critical finding.  This was a case where there was overwhelming evidence adduced from the applicant as to his lack of knowledge of the cooking tasks detailed in the work experience letter.  The suggestion that the Tribunal member had not earlier raised any credit issue with the applicant prior to the issue of the risotto is also not correct. 

16. It is clear from the transcript that the Tribunal member was first concerned about the reference adduced by the applicant referring to a particular position which is not supported by the documents that he provided.  It is also clear that the Tribunal went well beyond exploring the issue of risotto in relation to the applicant’s lack of knowledge of the cooking tasks detailed in the letter. The applicant could not describe the “bangers” content of bangers and mash. It was not necessary for the Tribunal to refer to every aspect of the inconsistencies in the applicant’s evidence in its adverse credibility findings.

17. To the extent that it is suggested that the Tribunal may have closed its mind to the applicant’s evidence, I reject that submission. That proposition is not supported by the recording of the hearing or the Tribunal’s reasons. Counsel for the applicant eschewed advancing any allegation of bias, but asserted that, in substance, the circumstances gave rise to a denial of procedural fairness because the Tribunal had been deflected by its mishearing of the applicant’s evidence. The mishearing of the applicant’s evidence in the circumstances of the phonetic description by the applicant of “rizolos” was not material to the Tribunal’s determination of the matter and was an understandable mishearing that was reasonable in the circumstances. The applicant did not correct the Tribunal. The applicant’s repetition of “rizolos” was entirely consistent with the lack of knowledge about the menu by the applicant. That mispronunciation by the applicant is not consistent with the applicant having worked with “rissoles”.

18. Further, the applicant was given opportunity to correct that error and did not do so in relation to the mishearing by the Tribunal.  Bias is an allegation that must be clearly alleged and properly proven.  No allegation of bias was maintained. To the extent relevant, the erroneous mishearing in relation to “risotto” by the Tribunal is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring a fair, impartial and independent mind to the determination of the matter on its merits.

19. I reject the submission that it was the reference to “risotto” that gave the Tribunal significant doubt as to the genuineness of the letter. I reject the submission that the mishearing of “risotto” coloured the balance of the Tribunal’s reasoning. I reject the submission that the erroneous reference to “risotto” led the Tribunal to form the view the applicant lacked basic knowledge of cooking tasks detailed in the work experience letter.

20. There was overwhelming evidence from the applicant that displayed his lack of basic knowledge of cooking tasks detailed in the work experience letter. I reject the submission that the Tribunal formed an adverse view of the applicant because of the alleged reference to only one of the three items mentioned as the most popular items. I reject the submission that the misunderstanding by the Tribunal in relation to the applicant’s pronunciation of “rissoles” gave rise to any denial of procedural fairness. I find there was no error by the Tribunal in relation to chicken parma, described by the applicant as a popular dish that was not on the menu. The reference to chicken parmigiana was not a material error of fact or material to the adverse credit findings.

21. The adverse findings by the Tribunal in relation to the applicant’s credit cannot be said to be unreasonable, irrational or to lack a probative basis.  The adverse findings by the Tribunal in relation to the bogus document were open on the material before the Tribunal and cannot be said to be unreasonable, irrational or without probative evidence.  The adverse finding by the Tribunal that the applicant did not perform the work experience described in the work experience letter was open on the material before the Tribunal. The applicant had a genuine and meaningful hearing and the errors did not give rise to any denial of procedural fairness or any breach of the statutory hearing obligations. Ground 2 fails to make out any jurisdictional error.

22. In relation to ground 3, for the reasons I have given there was no failure to provide the applicant procedural fairness and the assertions that the Tribunal acted unreasonably, irrationally or without probative evidence are without substance. 

23. Even if, contrary to the finding by this Court that there was no jurisdictional error a different view had been taken in relation to the materiality of the risotto errors, the Court would not have granted relief. 

24. The Court finds in the present case that the impact of the errors can, in fact, be entirely discounted.  The Court finds that this is a case where there was an overwhelming combination of inconsistencies and unsatisfactory aspects in relation to the applicant’s evidence.  The Court accepts that if it had found a jurisdictional error, prima facie the applicant would be entitled to relief and that the onus is upon the respondent to satisfy the Court that the granting of relief would be of no utility.

25. Whilst that is a heavy onus, the Court takes into account in the present case the inconsistencies in the applicant’s evidence went way beyond the matters identified by the Tribunal.  Having listened to the recording, those inconsistencies included a difference in relation to the days of the week when it is alleged the applicant worked and the hours that he worked, differences in relation to the relationship between the owner and another material person described in the letter, differences between the description of the applicant’s duties in his application and the letter, and numerous deficiencies in the applicant’s ability to describe the duties that he performed or how to make the items involved. The case that the document was bogus was overwhelming. I find that no reasonable Tribunal could have accepted that the applicant performed the work alleged in the reference supporting the TRA as any such finding would be unreasonable and perverse. This means the applicant obtained his visa by reliance upon a bogus document and that the applicant has continued to propound the bogus document. 

26. Whilst it is not a matter for this Court to make adverse credibility findings, and, ordinarily, where there is an issue of credit in respect of a jurisdictional error the matter should be remitted to the Tribunal for further hearing, this is a case where the applicant’s evidence was so obviously untruthful and untenable that the Court is satisfied there would be no useful result in remitting the matter if it had found any jurisdictional error.  The amended application is dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 27 July 2016