Giri v Minister for Immigration
[2015] FCCA 88
•16 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GIRI & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 88 |
| Catchwords: MIGRATION – Application for review of decision of the Migration Review Tribunal – whether Tribunal failed to comply with s.359A of the Migration Act 1958 (Cth) – whether Tribunal failed to comply with the rules of natural justice by failing to provide a document to the applicants – whether Tribunal misconstrued Public Interest Criterion 4020 of Schedule 4 of the Migration Regulations 1994 (Cth) – whether Tribunal failed to consider evidence – no jurisdictional error found – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.97, 357A, 359A, 362A, 476 Migration Regulations 1994 (Cth), Schedule 2, Schedule 4 |
| Vyas & Anor v Minister for Immigration & Anor [2012] FMCA 92 SZBYR v Minister for Immigration and Border Protection & Anor [2007] HCA 26 |
| First Applicant: | AMIT SHANKAR GIRI |
| Second Applicant: | ASHMA SHAH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 673 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 21 August 2014 |
| Date of Last Submission: | 21 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 16 January 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Newman of Newman & Associates |
| Counsel for the Respondents: | Mr J Smith |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application made on 18 March 2014 and amended on 5 August 2014 is dismissed.
The first and second applicants pay the first respondent’s costs set in the amount of $ 9223.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 673 of 2014
| AMIT SHANKAR GIRI |
First Applicant
| ASHMA SHAH |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 18 March 2014 and amended on 5 August 2014 seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 20 February 2014 which affirmed the decision of the Minister’s delegate not to grant Student (Temporary) (Class TU) visas to the applicants.
Background
Mr Amit Shankar Giri (“the applicant”) and his wife, Ms Ashma Shah (“the second applicant”), are both citizens of Nepal. They arrived in Australia on 18 February 2008 as holders of Student visas. The applicant applied for another subclass 572 visa (“the visa”) on 29 May 2012. His wife applied as a member of his family (CB 1 to CB 18).
On 14 June 2012 the delegate wrote to the applicants requesting certain information and documents relevant to the criteria for the grant of the visa (CB 28 to CB 36). The applicant responded on 9 July 2012. Amongst other documents, he submitted financial statements from Mount Dhaulagiri Multipurpose Co-operative Society Ltd (“MDM Coop”) and the Nabil Bank in Nepal. The documents were dated 4 July 2012 (CB 37 to CB 40).
On 4 February 2013 an officer of the Minister’s department wrote to the applicants. They were asked to provide an explanation in relation to the findings of an investigation by the Australian High Commission in New Delhi, that the financial statements provided by the applicants to the department were “non-genuine” (CB 57 to CB 59).
The applicant responded on 17 March 2013 (CB 64 to CB 65). Relevantly, he stated that his parents had sought assistance from an agent in Nepal to assist them to obtain financial documents in relation to his visa application. Further, that neither he, nor his parents, had any intention to provide misleading information.
The delegate refused the application for the visa. To be granted the visa, the applicant was required to meet the criteria set out at cl.572 of Schedule 2 the Migration Regulations 1994 (Cth) (“the Regulations”) as at the relevant time. Relevantly, cl.572.224(a) required the applicant amongst other things, to satisfy Public Interest criterion (“PIC”) 4020. This is in the following terms (PIC 4020 of Schedule 4 of the Regulations):
“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 Migration Review Tribunal, 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 the application;
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).
(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.”
The delegate found that PIC 4020 had not been met because the applicant had provided false or misleading information in relation to his application. Namely, the financial statement (CB 81 to CB 83).
The applicants applied for review to the Tribunal on 24 April 2013. They were represented by a registered migration agent (CB 86 to CB 97). By letter dated 18 October 2013, the Tribunal invited the applicants to comment on, or respond to, information which it said, subject to the applicants’ comments, would be the reason, or a part of the reason, for affirming the delegate’s decision. The information concerned the “bogus” document said to be from the Nabil Bank, and a loan certificate subsequently submitted by the applicant from the same bank, which he asked to be considered in place of the bogus certificate (CB 106 to CB 108).
The applicant attended a hearing before the Tribunal on 11 February 2014. By that time the applicants had engaged new representatives, who made submissions on their behalf (CB 117 to CB 119, CB 126 to CB 127 and CB 133 to CB 134). The applicants submitted further documents (CB 137 to CB 143). The Tribunal understood the issue before it, in the circumstances of the applicant’s case, to be whether the applicant met PIC 4020 as required by cl.572.224 of the Regulations ([6] at CB 148). The Tribunal found that the applicant had submitted a financial statement from the Nabil Bank which was a bogus document for the purposes of s.97(b) of the Act ([27] at CB 154).
In making this finding, the Tribunal noted the relevant advice from the Australian High Commission ([11] at CB 149), the applicant’s statement of 17 March 2012 that “your doubts [about the document] was correct” ([12] at CB 149), the Tribunal’s letter inviting comment, and the subsequent response of 29 November 2013, from the applicants’ then representative. That response included that ([17] at CB 151):
“[17] …‘We note the delegate’s finding in relation to PIC 4020 and believe that the discretionary power used cannot be justified because: there is no evidence that the applicant has been involved in su[b]mitting bogus documents; the applicant has clearly stated that he submitted the documents believing they were genuine and true in every particular; the applicant himself and his mother have been the victims of fraud committed by an agent in Nepal; and the crime committed by the third party resulted in such circumstances…’”
The Tribunal accepted that the applicant was unaware that the document was bogus at the time he had submitted it ([26] at CB 154). However, it relied on authority (Vyas & Anor v Minister for Immigration & Anor [2012] FMCA 92 (“Vyas”)) for the proposition that the requirement in PIC 4020 not to submit a bogus document, applies whether or not the document was provided by the applicant knowingly or unwittingly ([9] at CB 149).
The Tribunal noted that the requirement in PIC 4020 may be waived if there are certain compelling and compassionate reasons for justifying the grant of the visa ([7] at CB 148) and PIC 4020(4). The Tribunal had regard to the applicants’ representative’s submissions of 4 February 2014 (CB 133 to CB 134, [30] at CB 154), and the matters raised by the applicant in an attached Statutory Declaration of 4 February 2014, where he referred to certain compelling and compassionate circumstances to justify the grant of the visa (CB 137 to CB 138 and [33] of CB 155). This included the claimed impact on the applicant’s aunt.
Before the Court
At the final hearing Mr M Newman appeared for the applicant. Mr J Smith of counsel appeared for the first respondent. The applicant proceeded on the amended application of 5 August 2014. The grounds were in the following terms:
“1. The applicant applied for a student visa on 29 May 2012 and on 3 July 2012 provided to the Department statements from the Mt. Dhaulagari Multipurpose Co-Op Soc’ Ltd and the Nabil Bank in Nepal. The Department in January 2013 sought from its overseas mission an ‘integrity report’ and on 4 February 2013 the Department emailed the applicant saying that statements were ‘non-genuine’ and on 5 April 2013 wrote to him saying that PIC 4020 was enlivened. The Applicant then applied for a review and the Tribunal in purported exercise of its powers and responsibilities contained in s359A attached the departmental decision which spoke of ‘bogus documents or false information’ and invited comment from the applicant. That ambiguity and lack of precision was contrary to the provisions of the section and the tribunal thus erred in law and in its jurisdiction.
2. The applicant called for all documents in the tribunal’s possession which ought reasonably to have included the overseas investigation report but despite the request the document was not supplied contrary to rules of natural justice.
3. The documents supplied were genuine] and the information provided was correct at time of submission and as such the tribunal erred in law and in its jurisdiction in upholding the delegate’s decision that PIC 4020 was enlivened.”
[It should be noted that a further amended application was filed on 11 August 2014. The grounds of the amended application of 5 August 2014 are identical to the grounds of the further amended application of 11 August 2014].
The Grounds of the Application
As I understood it, the applicants’ proposition underlying ground one was that the applicants are entitled to some clarity as to the “complaint” put against them by the Tribunal. The applicants assert that there was no clarity in the request from the delegate for them to provide an explanation about the financial statements the applicants had provided in support of the visa application (see CB 57 – financial statements from the MDM Coop and Nabil Bank).
The applicants submitted that the Tribunal fell into “the same sort of error”. They referred to [10] and [13] of the Tribunal’s decision record (at CB 149):
“[10] In this case the principal applicant was advised of the need to provide documents to demonstrate that he had the financial capacity to support himself and his dependent while studying in Australia. The principal applicant provided the documentation on 9 July 2012. This included documents from the Mount Dhaulagiri Multipurpose Co-operative Society, dated 4 July 2012, and the Nabil Bank, New Baneswor, Kathmandhu, dated 4 July 2012.
[13] The delegate provided her reasons for finding the principal applicant had submitted a bogus document in her decision record. She said that the principal applicant had argued that the concern of the integrity of his mother’s account statement related to the funds in the account to accommodate his studies and living costs and he had attempted to resolve the concern over bogus documents and false information by providing an Education Loan certificate to show he has sufficient funds. However the concern related to actual funds. Integrity checks had confirmed that a large amount was withdrawn from the Nabil Bank account on 25 July 2012 and the available amount at the time of referral was not NPR4,600,000,00 but NPR 1,821.”
The applicants relied on the latter paragraph to argue that the Tribunal had “adopted”, for the purposes of its decision, the same lack of clarity about the status of the financial documents as the delegate had, and as revealed by what the delegate had put to the applicants for comment.
The applicants’ ground one therefore is explained as follows. The Tribunal wrote to the applicant on 18 October 2013 inviting comment on, or response to, certain information. That letter lacked sufficient particularity and clarity. The Tribunal therefore failed to comply with the requirements of s.359A(1) of the Act.
That section, relevantly, is in the following terms:
“359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it…”
As set out above, before the Court, the applicants’ relied on [10] and [13] (at CB 149) of the Tribunal’s decision record. They argued that the lack of clarity “adopted” by the Tribunal from the delegate can be seen, when read with the delegate’s request, with reference to whether the Tribunal referred to one or two documents as being the information it considered would be the reason, or a part of the reason, for affirming the delegate’s decision. The applicants also argued that the lack of clarity in the Tribunal’s decision can be seen in what the Tribunal put to the applicants concerning the nature of these documents. That is, whether the documents were “forged”, or “genuine”, or that the contents were “false”.
It is trite to say that the applicants’ ground must be resolved with reference to the terms of the Tribunal’s letter of invitation, and the circumstances in which that letter was sent. Before the Court, the applicants made some reference to this letter, but appeared to primarily base the attack on [10] and [13] (at CB 149) of the Tribunal’s decision record.
The difficulty for the applicants here is that those two paragraphs represent a part of the relevant background circumstances ultimately put before the Tribunal. When plainly, let alone fairly read, they simply repeat what happened before the delegate.
The Tribunal’s letter of invitation to comment is reproduced at CB 106 to CB 108. The following is, at least, a fair and reasonable reading of the letter. The Tribunal drew the applicants’ attention to the requirements of PIC 4020 and put them on notice that they did not appear to meet the requirements of that condition for the grant of the visa, as was required by cl.572.224 of the Regulations.
The Tribunal specifically referred the applicants to the delegate’s decision, and the reasons the delegate gave for finding that the applicants did not meet the requirements of PIC 4020. The Tribunal’s letter, relevantly, stated (at CB 107):
“…The delegate noted that on 9 July 2012 you provided evidence to the Department that was considered to be of a ‘non-genuine’ nature.
You provided a statement outlining the reasons for the bogus information on the Nabil Bank statement provided. You stated that you had tried to contact the Agent on several occasions regarding the bogus document submitted but you were unsuccessful. You stated that your parents did not intend to provide misleading information to the department, as they were not aware of any kind of student loan process and relied on the Agent’s knowledge.
You provided an Education Loan Certificate issued by the Nabil Bank of NPR 4,600,000 and requested that this certificate be considered in place of the bogus certificate.
You argued that the concern of the integrity of your mother’s Nabil Bank statement relates to the funds available in the account to accommodate your studies and living costs and you attempted to resolve that concern over bogus documents or false information by providing an Education Loan Certificate to show you had sufficient funds. The delegate noted that the concerns related to the actual funds contained in the account. The delegate noted that’ integrity checks have confirmed that a large amount was drawn from the Nabil Bank account on 25 July 2012 and the available amount at referral was only NPR 1,821. She said that your request that the prior Nabil Bank statement be disregarded in place of the education Loan Certificate could not be considered.
The delegate considered that response but she was not satisfied that you met PIC 4020. As a consequence the Student (Temporary) (Class TU) Visas were refused.
This information is important because if I were to rely on it in my decision it might mean that I would affirm the decision not to grant you a student visa.
You are invited to give comments on or response to the above information in writing…”
A number of matters are of note. First “information” for the purposes of s.359A of the Act does not include all information before the Tribunal, only that information which the Tribunal considers would be the reason, or a part of the reason, for affirming the delegate’s decision.
As the High Court stated in SZBYR v Minister for Immigration and Border Protection & Anor [2007] HCA 26 (“SZBYR”) the use of the future conditional tense (“would be”) directs attention to a point of time anterior to the making of the decision (see SZBYR at [17] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). While the Tribunal’s published reasons may assist in this regard (SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [20] per Jacobson J, and SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] per Siopis J), it is that antecedent point of time that is the relevant focus.
The applicants’ emphasis on the paragraphs in the Tribunal’s decision record, while they may theoretically assist, are of limited value given that the Tribunal’s letter was drafted and sent at a time anterior to the decision, and expresses the Tribunal’s relevant consideration at that time, as to the information that “would be” the reason, or a part of the reason, for affirming the delegate’s decision.
Second, whatever else may have been said in the Tribunal’s decision record about the financial statements, the Tribunal’s letter of 18 October 2013, makes clear that it is only the financial statements from the Nabil Bank that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision, and, by the lack of any reference, not the financial statement from MDM Coop.
In this regard, the Tribunal’s reference, at [10] and [13] (at CB 149) of its decision record, to the MDM Coop financial statements was descriptive of what had otherwise occurred before the delegate. However, in terms of the information on which it would rely, the letter is clear that is only the Nabil Bank documents.
Further, and noting above as to the extent the Tribunal’s decision record may assist in this consideration, it is clear on a holistic reading of the decision record that it was the Nabil Bank document on which the Tribunal subsequently did rely. It did not rely on the MDM Coop document (see [24] – [28] at CB 153 to CB 154). In any event, it is not necessary to refer to the decision record in the resolution of this ground. The evidence of what the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision, at a time antecedent to the making of the decision, is what is contained in its letter of 18 October 2013. That letter was clear in its plain terms. The relevant financial statement is that statement which the applicant provided to the delegate from the Nabil Bank.
Third, that financial statement is clearly identified in the Tribunal’s letter. It was described as the financial statement which the applicant provided on 9 July 2012 and was considered to be of a “non-genuine” nature (see CB 82.2, CB 110.2 and CB 40 for the Nabil Bank statement which was provided by the applicant to the delegate on 9 July 2012 at CB 27 item [4]).
Fourth, the perceived character of, relevantly, that document was plainly said to be that the delegate considered it to be “evidence” of a “‘non-genuine’ nature” (CB 107.1).
The subsequent explanation provided by the Tribunal’s letter makes it clear that, relevantly, the concern was that he had provided “bogus information on the Nabil Bank statement” (CB 107.2), which the applicant himself conceded was a “bogus document”. He subsequently attempted “to resolve that concern over bogus documents or false information” (CB 107.4).
The applicants submitted before the Court that it was unclear from, initially, the Tribunal’s decision record, and subsequently, the letter of 18 October 2013, whether the Tribunal meant that the statement was a “bogus document”, or a “forged document”, or that the “details were forged”.
The words used by the Tribunal in its letter are as set out at [23] above. The applicant asked before the Court: “what does a ‘bogus document’ mean?” The Tribunal itself provided part of the answer to that question. The Tribunal attached to the letter a copy of the delegate’s decision record (CB 106.10 and CB 109 to CB 111).
Attached to that decision was a document headed: “Criteria in the Migration Regulations Not Satisfied” (CB 112 to CB 113). Both the phrases “bogus document” and “information that is false or misleading in a material particular” are found in the terms of PIC 4020. In the absence of any evidence to the contrary, the Tribunal’s use of the phrases “bogus documents” and “fake information” are therefore to be understood in the context in which they appear, and are used in PIC 4020. The term “bogus document” is defined in s.97 of the Act. The term “misleading information” is explained in PIC 4020.
Fifth, the explanation provided by the Tribunal draws from the “history” of the applicants’ case before the delegate, and the Tribunal, up to 18 October 2013.
As set out above, in relation to his application for the visa, the applicant submitted, relevantly, a statement from the Nabil Bank (see [3] above). This was submitted by the applicant, in response to a request from the delegate, that he provide evidence of funds to support himself and family members (the second applicant) while studying in Australia (CB 33.6).
The financial statement from the Nabil Bank was said to be in relation to an account held by the applicant’s mother (“Nishu Giri”) setting out the balance of the account as at 3 July 2012 (CB 40) (5,805,000.00 Nepali Rupees). In this context, the applicant also provided a statement from his mother guaranteeing financial support for the applicant to the amount of $61,975.00 (Australian dollars) (CB 46). The applicant provided further statements from the Nabil Bank dated 4 July 2012 which stated that the balance in his mother’s account “ as of closing on July 03, 2012” was the “equivalent to AUD [$]64,601.87” (CB 47).
As also set out above, a departmental officer wrote to the applicants (by email) on 4 December 2013 stating that “the financial statements from [MDM Coop] and Nabil Bank, which you provided has been found to be non-genuine” (CB 57.7).
I note here that before the Court the Minister argued that this statement “lacked clarity”. However, the Minister submitted, that in the circumstances of this case, this was not of importance, given the response by the applicant. I further note that this correspondence (the email by the departmental officer) was not sent by the Tribunal. Whatever lack of clarity may be said to have arisen in that correspondence is not relevant. It is the terms of the Tribunal’s letter that are relevant to the consideration of s.359A of the Act (see further below).
The Minister’s submission was, that in response, the applicant told the departmental officer that he “was doing” his “own investigation on the issues that you have raised” (CB 60.4).
The applicant reported the result of his investigation to the departmental officer. Relevantly, he stated ([64] at CB 64):
“…I have gone through investigation along with my parents, your doubt was correct. Since my parents were very busy with their work, they had decided to hire an agent back in Nepal to assist them for the document. As part of my investigation when I tried to contact the agent through whom my document was processed for the bank statement, that agents was contact less, in spite of our several attempts. However, I and my parents’ intention were not to provide any misleading information to the department of immigration of Australia. As my parents were not aware of any kind of student loan process they had totally relied on the agent which we found was taking advantage of unawareness of my parents and provided the previous document.
To avoid any further misleading and fictitious document I asked my parents to contact the bank directly and forward the student loan process for my education in Australia. Hence, they processed for loan directly through the bank by themselves and the loan has been granted by Nabil Bank of Nepal, which I have attached with this email. You can verify this document with the concerned financial institution, if you have any query and require any document I will always be ready to assist you…”
What is of note is that the applicant stated, one, that the departmental officer’s “doubts” about the document were “correct”. Two, he and his parents did not attempt to mislead (see further below). Three, he subsequently asked his parents to directly obtain a student loan from the Nabil Bank and he attached a document showing they had been successful in this application (the document is reproduced at CB 71 to CB 73, dated 5 March 2013).
The Minister submitted that whatever lack of clarity may have existed in the initial request from the departmental officer in the email to the applicant, the applicant, through his subsequent conduct, understood the issue put to him.
That is, that the document from Nabil Bank (and for that matter MDM Coop) were fraudulent, in the sense that it was fictitious. The applicant’s own investigation confirmed that an agent, engaged by his parents to assist, caused him ultimately to provide “misleading information” to the department. The applicant sought to avoid providing “any further misleading and fictitious documents” and therefore asked his parents to deal directly with Nabil Bank.
In this context, the delegate found (at CB 82.2):
“…The Minister is satisfied that the applicant has supplied false or misleading information, or incorrect documentation to the department…”
It must be said that the applicant’s submissions before the Court fail to acknowledge at least one critical aspect of the Tribunal’s letter. That is, that the applicant had agreed, following his own investigation, that, although not knowingly, he had provided misleading information to the department, in what he himself described as a “fictitious document”, or “false document”.
In relation to s.359A(1), it is the terms of the Tribunal’s letter which the applicant must demonstrate, on balance, did not provide reasonably clear particulars of the information that the Tribunal said it considered would be the reason, or a part of the reason, for affirming the delegate’s decision, not necessarily what the applicant understood of it.
Those terms are clear with reference to the identification of the central issue (the application of PIC 4020), that the information on the Nabil Bank statement was “bogus”, and that the applicant agreed that this was the case to the delegate. Further, the letter made clear the relevance of this to the Tribunal’s decision and the consequences to the outcome of the review. On the evidence, the Tribunal complied with s.359A(1)(a) of the Act.
Section 359A(1)(b) of the Act requires the Tribunal to, as far as is reasonably possible, first, ensure that the applicant understands why the information is relevant to the review, and, second, the consequences of the Tribunal relying on it.
As to the first element, it is not necessary for the Minister to show that the applicant understood the relevance of the information to the review. However, in the current case, the applicant’s conduct in seeking to address what he conceded was “bogus”, provides the basis to say he understood the relevance of the information to the review. As to the second latter element of s.359A(1)(b) of the Act, the terms of the Tribunal’s letter in this regard are plain. The Tribunal complied with s.359A(1)(b) of the Act.
There was no complaint by the applicants as to s.359A(1)(c) of the Act. In any event, he did comment on, and respond to, the letter. In all, ground one is not made out.
Ground two asserts that the applicant “called for” all documents in the Tribunal’s possession. This was also a reference to the documents which the Tribunal “ought” to have had in its possession concerning the “overseas investigation”. The complaint is that, contrary to the rules of natural justice, the Tribunal did not supply these documents to the applicant.
Before the Court, the applicant explained ground two as follows. He claimed that there was a lack of clarity in the Tribunal’s letter. Therefore the applicants’ representative wrote to the Tribunal on 18 November 2013, and requested access to written material held by the Tribunal (Part 2 at CB 119)
“…All MRT and DIBP folios held by MRT…”
The submission to the Court was that “one assumes” that the relevant Australian diplomatic mission overseas would have sent a “particularised report” concerning the bogus document or false information.
The applicants’ assertion of legal error is that the Tribunal breached its obligation under the rules of natural justice, by not supplying this report to the applicant. The argument is that the applicants were entitled to have all the relevant papers.
It is relevant to note the circumstances in which the representative’s request was made. While the applicants had been previously represented before the Tribunal by a registered migration agent (CB 86), they appointed a different agency to represent them on 18 November 2013 (CB 118). Noting, this was after the date of the Tribunal’s letter of 18 October 2013.
The request for access to documents held by the Tribunal (pursuant to s.362A of the Act) was also made on 18 November 2013 (CB 119). That request was sent through a letter from the “new” migration agents. The letter was relevantly in the following terms (at CB 117):
“Re: MRT Case No: 1306045
…
…We are instructed to act on the above matter. Please find attached herewith Form MR5, Appointment of Representative.
Furthermore, we also enclose herewith Form M16, Request for access to written material held by the Tribunal under S 362A of the Migration Act, requesting for all folios of MRT and DIAC, held by MRT.
As the applicant has not provided us any documents related to his application, we will be able to submit a detailed submission once we receive documents from MRT. In this regard, we request the tribunal to grant an additional time of 14 days to prepare a detailed submission.
Please forward all the future communication to this office.
Should you required any further information/documents, please let us know…”
There is nothing in the letter, or the terms of the request, specifically asking for any particular report from the Australian High Commission. If anything, the request is in general terms, which is explained by the representative’s statement, that the applicants had not supplied them with any documents related to the application.
That specific request was made in the representative’s letter of 29 November 2013 to the Tribunal (CB 126 to CB 127). That letter was sent in the initial response (after additional time was provided by the Tribunal) to the Tribunal’s letter of 18 October 2013, and sent following receipt from the Tribunal of written materials held on its file, and those of the relevant departmental file that it had (CB 125).
The applicants’ representative stated, amongst other things (CB 126):
“…We also note that the documents obtained from MRT excludes the actual findings and reports obtained from the overseas post which carried out the investigations in relation to the authenticity of the documents. We request the Tribunal to provide this office with the documents containing the investigation reports along with the way the investigations were conducted to enable the applicant to prepare [a] proper response.
We are instructed that the applicant’s mother has reported the fraud to the Nepali authorities. If the Agent is found guilty of fraud by the Court in Nepal, then the applicant should not be prejudiced…”
There is evidence that a Tribunal officer spoke to the applicants’ representative on 29 November 2013 and advised them that any additional request for further documents should be directed to the Minister’s department (CB 128).
The applicants’ representative made written submissions to the Tribunal which confirmed the applicants’ attendance at the scheduled hearing (set down for 11 February 2014) and made submissions under the heading of “Waiver of PIC 4020” (CB 133 to CB 143). Those submissions also referred to the applicant’s Statutory Declaration of 4 February 2014, which the representative said was “self-explanatory” (CB 133 to CB 134 and CB 137 to CB 138).
While the representative’s letter of 29 November 2013 asked for the overseas report of the investigation in relation to the authenticity of the documents submitted by the applicant, the submissions of 4 February 2014, and the applicant’s Statutory Declaration, proceed on the basis that the documents provided by the applicant were “bogus documents” (CB 133.7).
In this context, PIC 4020, as the Tribunal recognised in its decision record, relevantly poses two questions for the Tribunal. The first is whether the applicant gave, or caused to be given, a bogus document or information that was false and misleading in a material particular. The second was, if the answer to the first question was in the affirmative, should the requirements of PIC 4020 be subsequently waived.
The representative’s submissions made no argument against the first. By that time it was clear that the applicant had volunteered that bogus documents had been given him to the department, albeit not knowing that they were bogus documents. The applicant claimed that the agent employed by his parents was the cause of his unintentionally giving the bogus documents. The applicant provided a further document to the Tribunal from the Nepalese “Ministry of Home Ministry” referring to action being taken against this agent (CB 142).
There are a number of difficulties with the applicants’ ground and the submissions in support. The applicants’ reference in the ground to the “rules of natural justice” appears to be an assertion that the Tribunal failed to provide procedural fairness, at general, or common law, because it did not give the applicants copies of any report by the Australian High Commission.
Before the Court, the applicants’ complaint in ground two was initially expressed as being, that the applicants’ representative sought this document because the Tribunal’s letter, sent pursuant to s.359A of the Act, lacked particularity and clarity.
In this light, the applicants did not explain how any procedural fairness applied at common law, beyond the scope of their embodiment in s.359A of the Act, given that s.359A (as a result of s.357A of the Act) is an exhaustive statement of the natural justice hearing rule (Minister for Immigration and Multicultural Affairs v Lay Lat [2006] FCAFC 61 (2006) 151 FCR 214). Plainly what is in s.359A of the Act dealing with the opportunity to comment on or respond to information, is a part of Division 5 of Part 5 of the Act and dealt with in that provision (Saeed v Minister for Immigration and Citizenship [2010] HCA 23).
In this light, I agree with the Minister that the obligation in s.359A of the Act does not extend to a general obligation to give the applicants the complete, or actual, copy of any document containing the information which it said would be the reason, or a part of the reason, for affirming the delegate’s decision. The exception to this is in circumstances where the complete document is necessary to ensure that the applicants have “clear particulars”, or it is necessary to enable the Tribunal to ensure, as far as it reasonably practicable, that the applicants understand the relevance of the information to the review.
While there may be some circumstances where the complete document must be given to discharge its s.359A obligation, this is not such a case. There are a number of reasons for this that apply, irrespective of whether the breach of the procedural fairness obligation is said to arise from s.359A of the Act or the obligation at common law. Noting in this latter regard, that essentially, the applicants’ argument before the Court was that the applicants have the right to know the case against them, so that they could meaningfully respond.
First, the applicants were squarely on notice, following the delegate’s decision, that the case against them being granted the visa, was that the applicant had breached the requirements of PIC 4020 in relation to the Nabil Bank statement.
Second, it was the applicant himself who volunteered that he had conducted his own investigation and that the Nabil Bank statement (and the other documents initially submitted) was a bogus document, and contained false and misleading information. This statement by the applicant preceded the Tribunal’s letter of 18 October 2013, and included the delegate’s decision. In this circumstance nothing further could be gained from the provision of any report of any investigation by the Australian High Commission, if indeed any such report existed.
What the applicants now have not adequately addressed in the submissions to the Court, is that the Tribunal relied on the applicant’s statement to the delegate that the documents were bogus. Not necessarily on any investigation conducted by the Australia High Commission. This is not a case where the Tribunal conducted its own inquiry. It accepted the result of the applicant’s own investigation.
Indeed it also accepted the applicant’s assertion that he did not know that the documents were bogus. In this regard, as was set out above, the Tribunal relied on Vyas for the proposition that PIC 4020 applied in circumstances where the applicant, in giving the bogus documents, was unaware that they were bogus.
What was relevantly said in Vyas (a matter in this Court) was considered by the Full Federal Court in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 (“Trivedi”) (also a matter originally in the Federal Circuit Court of Australia) which in turn relied on Vyas for this proposition (at [75] above) (see Trivedi & Ors v Minister for Immigration, Multicultural Affairs & Citizenship & Anor [2013] FCCA 578 at [34] per Judge Emmett of this Court). Before this Court, neither the applicants’ grounds, nor their submissions, sought to assert error on the part of the Tribunal in this regard. In any event, the view taken of PIC 4020 by the Full Court in Trivedi was (per Buchanan J, at [43] with whom Allsop CJ at [1], and Rangiah J at [56], agreed):
“[43] In my view, it is not necessary (for reasons yet to be further developed) to show knowing complicity by a visa applicant. That would impose an impossible task on those administering the visa system. But it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact.”
On this basis, the applicant in the current case agreed that the documents were bogus, and contained false and misleading information.
Third, given, as set out above, that the Tribunal’s letter of 18 October 2013 was clear, the applicants did not satisfactorily explain to the Court what further could be gained, in terms of putting them on notice of the information adverse to the applicant (the case against him), by the provision of any report of an Australian High Commission investigation.
Fourth, and in any event, before the Court the applicants have proceeded on the assumption that the Tribunal did not have in its possession, or have access to, such documents or that even that such documents existed. At its highest, the argument was that the Tribunal “ought” to have had these documents.
The applicants have not pointed to any evidence from which such an inference may proceed. As the Minister submits, on balance, the inference to be drawn from the evidence is that the Tribunal did not have any such documents. There is nothing to impugn the Tribunal officer’s response to the applicants’ request, which on its face gave access “to all of the above materials” (that is in the Tribunal’s file and the department’s file – see CB 125).
In any event and further, given that the information the Tribunal did give in its letter of 18 October 2013 was clear, that is, that the Nabil Bank document was bogus, as the Minister submits, there is no general requirement at common law to give the complete document from which the information is derived (Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223). Plainly the applicant knew, and agreed with, what was put against him. Ground two is not made out.
Ground Three asserts that the document (presumably, and relevantly, the Nabil Bank document) was “genuine” at the time that it was given to the Minister’s department. The Tribunal therefore was in error to find that PIC 4020 was enlivened.
Before the Court, this was explained as follows. The Nabil Bank document provided by the applicant to the department on 9 July 2012 (CB 27 and CB 40) was a financial statement of his mother’s account held with that bank. At that time (the date of the statement – 3 July 2012) there were sufficient funds in that account to reflect what was said in the statement. It was only later that that money was withdrawn from that account.
Before the Court, the applicant referred to the Tribunal’s decision record to make good this proposition. At [2] (at CB 148), the Tribunal stated, “…because on 9 July 2012 the applicant provided evidence to the department that was considered to be non-genuine.”
The applicants submitted to the Court that there is no evidence to suggest that as of that date (9 July 2012) the information contained in that document was other than genuine. The applicants say that it was not until 25 July 2012 that a large proportion of those funds were withdrawn from the Nabil Bank. The applicants refer to [13] (at CB 149) of the Tribunal’s decision, where the Tribunal reports on the delegate’s concerns as to the actual amount held in that account.
The assertion of legal error can therefore be understood as being that the Tribunal had no evidence before it to find that, as at the time the applicant gave the Nabil Bank document to the Minister’s department, the document, and the amount said to be held in the mother’s account, was not “correct”, and not genuine.
The difficulty with the applicants’ ground, and the submissions in support, is that there was evidence before the Tribunal to say that the document was not genuine. That is, the applicant’s own evidence in this regard.
As variously set out above, the applicant said he conducted his own investigation as to this (and the other documents) and found that his parents had relied on an agent and had no knowledge that the document was “misleading” and “fictitious” (see CB 64). Further, the applicants’ representative submitted, on the applicants’ behalf, that the documents were “bogus” (CB 126 and repeated at CB 133 in further submissions, and by the applicant in his Statutory Declaration of 4 February 2014).
The premise that there was no evidence before the Tribunal to base its finding is plainly not available to the applicants now. It was reasonably open to the Tribunal on the evidence before it (the applicant’s own evidence) to find that the Nabil Bank statement was “false and therefore a bogus document”, thus PIC 4020 was engaged ([27] at CB 154). The applicants’ attempt now to argue that the amount of the statement was “correct”, does not rise above a challenge to the facts as found by the Tribunal, and therefore seeks impermissible merits review, in circumstances where the Tribunal’s findings were reasonably open on the evidence before it. Ground three is not made out.
Conclusion
The grounds of the application are not made out. It is appropriate to dismiss the application. I will make an order accordingly.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 16 January 2015
0
11
3