Gill v Minister for Immigration

[2014] FCCA 2383

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2383

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – cancellation of a skilled work visa – whether the Tribunal failed to meet its obligation of review or overlooked relevant material considered.

Legislation:

Migration Act 1958 (Cth), ss.103, 109, 349, 359A, 359AA

Drake v Minister for Immigration (1979) 24 ALR 577
Esber v Commonwealth (1992) 174 CLR 430; [1992] HCA 20

Minister for Immigration v Brar [2012] FCAFC 30

Minister for Immigration v Chamnam You [2008] FCA 241

Applicant: JASWINDER SINGH GILL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 31 of 2014

Judgment of: Judge Driver

Hearing date: 17 October 2014

Delivered at: Sydney

Delivered on: 31 October 2014

REPRESENTATION

Solicitors for the Applicant:

Mr M Jones

Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr M Cleary

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application as amended on 17 October 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 31 of 2014

JASWINDER SINGH GILL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Migration Review Tribunal (Tribunal).  The decision was made on 10 December 2013.  The Tribunal affirmed a decision of a delegate of the Minister to cancel the applicant’s (Mr Gill) subclass 885 (Skilled – Independent) visa. 

2. The following statement of background facts is derived from the submissions of the parties.

3. Mr Gill was granted the visa on 1 April 2008. 

4. On 6 October 2011 the Minister’s Department sent to Mr Gill a Notice of Intention to Consider Cancellation of Mr Gill’s visa (October NOIC) alleging Mr Gill had not been employed at a restaurant operated by Prithvi Singh called “Bombay Fusion”.  Mr Gill’s agent replied to this notice on 23 January 2012.

5. On 20 July 2012 the Minister’s Department sent a second NOIC (July NOIC) setting out further information that could form part of the reason to cancel Mr Gill’s visa.  Mr Gill’s agent replied to this notice on 28 September 2012.

6. On 19 December 2012 a delegate of the Minister cancelled the applicant’s visa under s.109 of the Migration Act 1958 (Cth) (Migration Act).

7. On 9 January 2013 Mr Gill applied to the Tribunal for a review of the delegate’s decision.  An oral hearing took place on 25 October 2013.[1]

   [1] The Tribunal's decision contains a typographical error at [16], referring to the Tribunal hearing date as 24 October 2013.

8. On 10 December 2013 the Tribunal affirmed the delegate’s decision.

The judicial review application

1. These proceedings began with a show cause application filed on 7 January 2014.  Mr Gill now relies upon an amended application filed in court by leave at the trial of the matter on 17 October 2014.

2. The grounds of that application are:

   1.The Tribunal failed to comply with the requirements of s 359A or 359AA of the Migration Act 1958.

   Particulars

   The Tribunal had information which it considered would be the reason or part of the reason for affirming the decision under review. The information was information that had been obtained by the delegate who made the original decision, and included information from former employers and others that in the view of the Tribunal undermined the Applicant's claims relating to his employment. This information was not information to which s 359A did not apply because:

   (a)It was specifically about the Applicant or another person.

   (b)The fact that the information was contained in the delegate's decision record which had been attached to the Tribunal application did not make it information that the Applicant gave for the purpose of the review.

   (c)It was not information that the Applicant gave during the process that led to the decision under review.

   (d)It was not non-disclosable information.

   The Tribunal failed to deal with the information in the manner required by s 359A(2) or 359AA.

   2.The Tribunal failed to exercise its jurisdiction to review the decision to cancel the Applicant's visa.

   Particulars

   Instead of reviewing the evidence available to it, the Tribunal merely repeated the delegate's description of the evidence.

   3.The Tribunal failed to consider an aspect of the submissions made by the Applicant.

   Particulars

   The Applicant submitted that it was relevant to the Tribunal's consideration that the assessing authority had not cancelled or revoked its assessment of the Applicant's skills. The Tribunal did not deal with those submissions in its decision.

   4.The Tribunal failed to take into account information that was constructively before it.

   Particulars

   The Tribunal drew inferences about the validity of an affidavit of Baldev Singh in relation to the Applicant's employment in India based on a reference to an employee who had been identified by Immigration investigators as Dharminder Dhillon but was referred to by the Applicant and Baldev Singh as Dharminder [Singh]. A Tribunal charged with review of the type of matters that constitute the daily workload of the Migration Review Tribunal would have constructive knowledge that all male Sikhs may be referred to by the surname Singh whether or not they also use another name.

3. In addition to the court book filed on 2 March 2014 and the supplementary court book filed on 23 May 2014, I have before me as evidence the affidavit of Benjamin Brewer made on 28 January 2014 which annexes a transcript of the hearing conducted by the Tribunal on 25 October 2013. 

4. The parties made both written and oral submissions.

Consideration

Ground 1

1. Mr Gill contends that the Tribunal erred by not inviting his comment on information in (or referred to in) the decision of the Minister’s delegate.  The solicitor for Mr Gill conceded at the trial that this ground could not succeed in the face of the decision of the Federal Court in Minister for Immigration v Chamnam You.[2]  That decision was affirmed by the Full Federal Court in Minister for Immigration v Brar.[3]  This Court is bound by that decision.  Mr Gill formally and protectively submits that both cases were wrongly decided.

Ground 2

[2] [2008] FCA 241.

[3] [2012] FCAFC 30.

Applicant’s contentions

1. In reviewing a decision that is properly before it, the Tribunal is to "exercise all the powers and discretions that are conferred by this Act on the person who made the decision".[4]  The key word, in Mr Gill’s submission, is "exercise". The Tribunal must place itself in the shoes of the original decision maker and actively make the decision afresh.[5]

   [4] Migration Act 1958, s.349(1).

   [5] Esber v Commonwealth (1992) 174 CLR 430; [1992] HCA 20, at [21], referring to Drake v Minister for Immigration (1979) 24 ALR 577.

2. The Tribunal in this case is said to have failed to exercise the powers and discretions conferred on the decision-maker by the Migration Act and Regulations. Instead, it relied on the evidence and, more importantly, the assessments of that evidence contained in the Department's decision record dated 19 December 2012. In both the record of the hearing and its reasons for decision, the Tribunal refers not to the evidence but to the delegate's decision record. In particular:

   a)at [24]-[26] the Tribunal refers to a work reference letter from the Tandoori & Curry Club which it says the Department's decision record dated 19 December 2012 "indicates" was provided to Trades Recognition Australia (TRA), and "indicates" was signed by Mr Tomi Singh.  Further, the Department's decision record dated 19 December 2012 "indicates" that the delegate made certain calculations about the total working hours involved, and "indicates" that the delegate contacted Mr Singh who informed him that he did not know and did not employ Mr Gill.  The same record "indicates" that Mr Singh sent a fax in which he "indicated" that the letter was false and not written by him.  The Tribunal states at [30] that it "prefers the evidence given by Tomi Singh to that of the applicant", despite the fact that it had not taken evidence itself from Mr Singh or apparently even considered first hand what Mr Singh had told the delegate;

   b)at [41] to [47] the Tribunal refers to information which it says the Department's decision record dated 19 December 2012 "indicates" contained text copied from various websites. The Tribunal does not state whether it checked the websites itself;

   c)at [70] the Tribunal says that the Department's decision record dated 19 December 2012 "indicates" that the delegate compared the signatures on an affidavit  and a work reference and that they were "very different". The Tribunal does not state whether it checked the signatures itself or, if so, what conclusion it came to itself. At the hearing[6] the Tribunal refers also to the delegate's opinion with respect to the signatures;

   d)at [76] the Tribunal says that the Department's decision record dated 19 December 2012 "indicates" that on 7 April 2008 Mr Gill lodged a form which it claimed contradicted information in his visa application filed on 27 September 2005.  The Tribunal does not state whether it checked the forms itself.

   [6] Transcript (T) 15.36-42.

3. By failing to consider the evidence for itself and relying instead on what was "indicated" in the Department's decision record dated 19 December 2012, the Tribunal is said to have failed to exercise its jurisdiction to make a new decision based on the evidence before it.

Minister’s contentions

1. In Ground 2 Mr Gill asserts that the Tribunal failed to comply with s.349(1) of the Migration Act in undertaking its review. At [9] of Mr Gill’s written submissions, Mr Gill makes four arguments in support of this ground. The Minister deals with those arguments as follows:

   i)the assertion that the Tribunal member did not refer to the evidence given to the Tribunal on 25 October 2013, but only to the matters and evidence in the delegate’s decision record is wrong and unmeritorious.  At [23]-[30], the Tribunal was considering the issue of Mr Gill’s employment as a trainee cook at the Tandoori & Curry Club.  In determining this issue, at [23]-[25] the Tribunal considered the matters contained in the delegate’s decision record, including a fax from Tomi Singh sent to the delegate in which he indicates that he did not know or did not employ Mr Gill at his restaurant, the Tandoori & Curry Club.[7] At [26] the Tribunal noted the July NOIC, and the fact there was no response provided to this information in the reply from Mr Gill’s agent. At [26]-[29] the Tribunal considered Mr Gill’s evidence given to the Tribunal on 25 October 2014, and at [30] rejected the evidence of Mr Gill, and found he was not a trainee cook at the Tandoori & Curry Club. The Tribunal took evidence from Mr Gill on 25 October 2013 on this issue, considered it and has rejected it. This was a conclusion open to the Tribunal and is part of its fact-finding function. It has not breached s.349 of the Migration Act;

   ii)next, Mr Gill challenges the findings at [41]-[47] of the Tribunal’s decision. Those paragraphs contain the Tribunal’s consideration of the inconsistencies and contradictions it says are contained in Mr Gill’s statement dated 15 February 2008, as well as consideration of whether the content of the statement contained text (recipes of Italian dishes he allegedly prepared when he was working as a cook at the “Bombay Fusion”, which was an Indian restaurant) which had been copied from various websites. At [48] the Tribunal considered that Mr Gill’s explanation of this matter on 25 October 2013 was not truthful. There was no obligation on the Tribunal to “check” the various websites to which the delegate had already referred in his decision record. In these paragraphs the Tribunal member was testing and considering the credibility of Mr Gill’s evidence, and coming to the conclusion (which was open to her) that Mr Gill was not a witness of truth. The Tribunal has not breached s.349 of the Migration Act;

   iii)in the third subparagraph at [9] Mr Gill challenges the findings that the Tribunal made at [70]. At [70] the Tribunal merely notes that the delegate's decision record indicates that the delegate compared the signatures of Baldev Singh on his affidavit and his signature from a work reference, and found that the two signatures were different. This was a matter raised in the July NOIC with Mr Gill. At [71]-[79] the Tribunal considered the decision record, and Mr Gill’s evidence in relation to both the alleged affidavit and work reference from Baldev Singh. At [75] the Tribunal found that the inconsistency of the signatures raised concerns as to their authenticity. The Tribunal then concluded at [80] that they were bogus documents, and were counterfeit, and that Mr Gill in giving those documents to the Department in support of his application for another visa, an Independent (Migrant) (Class BN) visa, had breached s.103 of the Migration Act. This finding was open to the Tribunal on the evidence before it. There was no breach of s.349 of the Migration Act;

   iv)finally, in subparagraph (iv) of [9] of his written submissions, Mr Gill challenges [76] of the Tribunal’s decision. The Minister submits that there is no obligation on the Tribunal to “check” the forms in the context of the findings made in this paragraph. The Tribunal was merely observing what the decision record disclosed about the delegate’s findings about the contradictory information contained in the applications made to the Department by Mr Gill. This does not demonstrate the Tribunal has breached s.349 of the Migration Act.

   [7] Court Book (CB) 69.

2. The Minister submits that Mr Gill in his submissions on this ground has misunderstood the Tribunal’s decision.  The Tribunal considered the evidence of Mr Gill (as well as the information in the decision record of the delegate) when making its decision. 

Resolution

1. I prefer the Minister’s submissions on this ground.  It is apparent that the Tribunal adopted a layered approach to its decision on the review.  First, the Tribunal adopted as a factual matrix the findings made by the Minister’s delegate.  Secondly, the Tribunal considered the issues that required consideration on review by reference to that factual matrix.  Thirdly, the Tribunal made its own findings on those issues.  I see no error in this approach.  While the Tribunal has a duty of review, that duty does not necessarily extend to each and every finding made by the decision maker under review.  If a particular finding is not put in issue, either expressly or because of what squarely arises in the material before the Tribunal, the Tribunal does not have to remake the findings made by the delegate.

2. In its decision the Tribunal identified the following issues as requiring resolution, arising from the factual matrix provided by the delegate’s decision: first, was Mr Gill employed as a trainee cook at the Tandoori & Curry Club as he had claimed? The Tribunal dealt with this issue from [23] in its reasons and resolved it at [30]. Secondly, was Mr Gill employed as a cook at the Bombay Fusion Restaurant as he claimed? The Tribunal dealt with this issue from [31] of its reasons and resolved it at [49]-[50] of its reasons.[8] Thirdly, did Mr Gill provide false information in a previous application for a skilled visa? The Tribunal considered this issue from [66] of its reasons and resolved it at [79]-[80].

   [8] There was a supplementary finding at [63].

3. I reject Mr Gill’s contention that the Tribunal failed to exercise its jurisdiction to review the decision.

Ground 3

1. Mr Gill contends that the Tribunal should have considered and made a finding on the question of why TRA had not cancelled or revoked its assessment of Mr Gill’s skills.  The issue was raised by Mr Gill’s representative at the Tribunal hearing.  The following exchange occurred between the representative and the Tribunal member:[9]

   [9] T26-27.

   MEMBER: He studied catering – cooking, did he not?

   LEE: Yes, Member.  But my instruction was, he was cooking Indian dishes.  And Member, this likely he must have worked as a cook in Bombay Fusion.  The only remaining issue, Member, is the length of his – the period of his employment, Member.  Member, I think he provides written evidence and also oral evidence that he has worked up to about 1 April 2008, Member.

   Member, that could be some variations or some deep minor issues with the documents that were provided to TRA for skills assessment.  I’m sure the correct information, the real information of what come out of this hearing and also from the documents, those would not have changed – would not have changed the decision of TRA, because he actually worked ..(not transcribable).. Member.

   There is no evidence before the tribunal or the department that TRA has cancelled the skills assessment ..(not transcribable).. Member, in these circumstances, a TRA skills assessment – the absence of – if TRA skills, that means all clients – there are no evidence before the department my client was in actual breach.  There are no evidence that he actually provided the bogus skills assessment to the department.

   MEMBER: If you look at the definition of bogus document, it includes a document that was obtained based on false or misleading information.  And I think that was the basis on which the department found that the skills assessment was a bogus document.

   LEE:  Member, TRA do have the power and authority to cancel skills assessments.  Certainly in this case they have no answer.

   MEMBER: I don’t place a lot of reliance on that because it depends on what policy they have over there as to whether they do that or not, so I don’t place a lot of reliance on that.

2. It is apparent from that exchange that the Tribunal was unaware whether TRA had any policy or practice of re-visiting assessments on being informed of some irregularity.  Even if TRA had such a policy or practice, it would have to know of some irregularity before taking any action.  The Tribunal member made it tolerably clear in the exchange that she had no intention of making her own inquiries of TRA and neither was she obliged to.  There is no mention of the issue in the Tribunal decision but that is not indicative of any error, let alone a jurisdictional error.  In my view, the issue raised by Mr Gill’s representative at the Tribunal hearing went nowhere in the absence of some indication that TRA knew of the alleged irregularity, had a policy of revisiting its assessments and had made some decision to change, or not to change its assessment in the particular case. 

Ground 4

1. At [74]-[75] of its reasons the Tribunal said:[10]

   The submission made by the applicant’s then migration agent refers to the Departmental officers interviewing Dharminder Singh who was a recent recruit.  This was not the name put to the applicant in the s.107 Notice dated 20 July 2012.  The person interviewed by Departmental officers was called Dharminder Dhillon.  Even if the Tribunal accepts that the applicant’s then migration agent made a typographical error in relation to the name in his submissions, there was no evidence at that time from Baldev Singh or anyone else that Dharminder Dhillon was a recent recruit and this submission was not based on any evidence.

   The affidavit from Baldev Singh dated 13 July 2006 also refers to Dharminder Singh.  The Tribunal would expect that as the head of Aptech Computer Education, Baldev Singh would know the name of a faculty member and that he would not have written or signed a document with the incorrect name.  This raises serious concerns for the Tribunal in relation to the authenticity of this document.  It also raises concerns for the Tribunal as to why the applicant would need to provide a fraudulent affidavit from Baldev Singth dated 13 July 2006 if he had worked at Aptech Computer Education.  Further, the inconsistency in the signatures between the affidavit of Baldev Singh dated 13 July 2006 and the work reference from Baldev Singh, when considered in the context of this information, raises concerns in relation to the authenticity of one or both of these documents.

   [10] CB 265.

1. Mr Gill complains that the Tribunal did not take into account that Sikh men generally use the name Singh and commonly also use another name.

2. I agree with the Minister that this ground has not raised a proper ground of jurisdictional error.  It is in my view an attempt to visit upon the Tribunal retrospectively a submission that might have been made to the Tribunal at the time of the review.[11]

   [11] I concede that it does not appear that the issue dealt with by the Tribunal at [74]-[75] was discussed at the Tribunal hearing but it was apparent on the face of the documents referred to by the Tribunal.  The issue had been dealt with by the Minister’s delegate and so Mr Gill was on notice that it was likely to be an issue in the review.

3. It was open on the evidence before the Tribunal to find that the discrepancies regarding the author of the documents referred to at [70] (discussed above) raised serious concerns about the authenticity of both the documents.[12]  Subsequently, at [80] the Tribunal found that both these documents were bogus and counterfeit.  The finding at [80] was clearly open to the Tribunal to make.

   [12] This finding is found at [75].

4. Further, there was no obligation on the part of the Tribunal to conduct internet searches to determine the veracity of documents given to the Department by Mr Gill. The Tribunal’s function was to carry out a review of the delegate’s decision in accordance with the Migration Act, which it did.

5. I reject this ground.

Conclusion

1. Mr Gill has failed to establish that there is any jurisdictional error in the decision of the Tribunal.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date: 31 October 2014