Grier v Minister for Immigration
[2009] FMCA 198
•25 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRIER v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 198 |
| MIGRATION – Review of Migration Review Tribunal decision – refusal of skilled Australian sponsored migrants visas – adverse credibility finding – whether finding open to the Tribunal considered – whether the Tribunal breached ss.360 or 359A of the Migration Act 1958 (Cth) considered – whether the Tribunal overlooked an element of the applicants claims considered. |
| Migration Act 1958 (Cth), ss.359A, 360, 424, 424A, 425 Migration Regulations 1994 (Cth) |
| F Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 Minister for Immigration and Citizenship v Applicant A125 of 2003 & Anor (2007) 243 ALR 691 Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59 Minister for Immigration v Yusuf (2001) 180 ALR 1 S1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246 SZBEL v Minister for Immigration (2006) 228 CLR 152 SZBNK v Minister for Immigration [2005] FMCA 361 WAEE v Minister for Immigration [2003] FCAFC 184 |
| Applicant: | MARIA ELENA GRIER |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 3142 of 2008 |
| Judgment of: | Driver FM |
| Hearing date: | 11 March 2009 |
| Date of last submissions: | 30 April 2009 |
| Delivered at: | Sydney |
| Delivered on: | 25 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr P D Reynolds |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondents: | Ms S Sirtes |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3142 of 2008
| MARIA ELENA GRIER |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (“the Tribunal”). In these proceedings the applicant, Maria Elena Grier, makes an application for review of a decision of the Tribunal affirming a delegate’s decision to refuse her brother’s Class BQ Subclass 138 Skilled - Australian Sponsored visa. The review applicant is the sponsor for the visa. The primary visa applicant, Mr Ernesto Portillo Gamianga:
a)is a citizen of the Philippines;
b)included his wife and two children in the visa application;
c)nominated his skilled occupation as cook (ASCO 4513-11);
d)did not nominate a skilled occupation in the application for his wife (court book (“CB”)) 321 at [16]).
The Tribunal decision was made on 30 October 2008.
The following statement of additional background facts is derived from the applicant’s outline of submissions filed on 23 February 2009 and the Minister’s outline of submissions filed on 5 March 2009.
On 13 December 2005, the visa applicants (Mr Gamianga, his wife and two children), being citizens of the Philippines, lodged an offshore application for Visa Applicants Skilled – Australian Sponsored (Class BQ) visas with the Minister’s Department. In particular, subclass 138 visas were sought (CB at 1-182). Relevantly, the documents provided in support included:
a)a certificate from Abu M. Catering Services confirming employment from 15 March 2005 to the date of the certificate (CB41);
b)a statement of Mariwen Abu, the owner of Abu M. Catering Services, that stated that he worked as head cook and described the nature of his duties (CB42-44); and
c)a completed sponsorship form completed by the review applicant (CB56-65).
Further documents were subsequently provided by the primary visa applicant on 10 February 2006 (CB184-186) and on an unspecified date (CB187-206).
On or about 24 May 2006, a delegate of the Minister telephoned Mr Gamianga’s employer, Abu Catering (CB208). The file notes records, among other things, that (i) the catering company had branches in “Sto. Tomas and Sucat” and was a family business; (ii) the husband had been working as chief cook since March 2005 on a “per contract” basis and did not receive a regular salary or benefits; and (iii) the wife was the owner’s husband’s cousin. The delegate had concerns that Mr Gamianga was not employed by Abu M. Catering for the relevant period because the working hours were irregular and dependent on contracts, he was referred to as being ‘on-call’ and that sometimes contracts for his services were oral.
On 3 August 2006, the visa applicants’ migration agent sent a letter to the delegate attaching a statement prepared by the primary visa applicant in which he (i) indicated that Abu M. Catering Services had catering services on Mondays, Wednesdays and Fridays; (ii) his working hours started the day before the catering service (where he would be involved in marketing and food preparation); (iii) on the marketing and food preparation days he would work 12 hours and on the service days he worked for 8 hours (CB209-211).
On 10 August 2006, the visa applicants’ migration agent sent a letter to the delegate attaching (CB.212-219):
a)a further copy of the statement prepared by the husband appearing at CB210-211;
b)a certificate from Abu M. Catering Services stating that it had employed the husband from 15 March 2005 to “date”; and
c)a statement prepared by the owner and manager of Abu M. Catering Services setting out the husband’s responsibilities.
Subsequently the delegate engaged in correspondence with the visa applicants’ migration agent concerning the provision of a further assurance of support (CB220-236) and, on 19 March 2007, the delegate refused to grant the visa applicants the visas sought on the basis that the requisite assurances of support had not been provided (CB237-239). The review applicant applied to the Tribunal for review of this decision and, on 6 February 2008, the Tribunal remitted the matter to the delegate for further consideration with the direction that an assurance of support was not required (“first tribunal decision”) (CB241-243).
On 1 April 2008, a different delegate of the Minister sent a letter to the visa applicants’ migration agent requesting comment on information pertaining to a visit by Departmental staff to Abu M. Catering Services (CB244-245). The letter stated that the delegate had “received the following information, which indicates that an applicant has provided incorrect information in their application or failed to advise that information previously provided is now incorrect.” The letter then set out a number of matters:
a)the business owner had advised Departmental staff, that although the employment of staff was on a per contract basis, employees reported for work almost every other day during the ‘peak’ season and once a week during the ‘off peak’ season;
b)employees were paid after each function and a payroll register was kept. Each employee signed upon receipt of his/her salary;
c)the owner advised that she had provided an employment reference for the husband and that he had been employed for more than a year from March 2005;
d)the applicant was not present at the time Departmental staff visited and there was no function scheduled for that day; and
e)the owner’s files containing employee resumes and the payroll register did not contain any information that confirmed that the husband was employed by Abu M. Catering Services.
On 26 May 2008, the visa applicants’ migration agent appears to have sent an email to the delegate responding to its request (CB250.5), although this does not appear in the court book. The Tribunal asked the review applicant’s migration agent to provide a copy (CB274.3). The documents at CB276-278 and 281 appear to match the description of the documents attached to the email.
On 27 June 2008, the delegate refused to grant the visa applicants the visas sought (CB246-251). Specifically the delegate:
a)found that the husband had made no claims against nor provided any evidence in the application that he had completed any study that satisfied the requirements of subclause 138.216(2) of Schedule 2 of the Migration Regulations 1994 (Cth) (“Migration Regulations”), hence he was not entitled for a waiver of the recent work experience requirement as per subclause 138.216(2);
b)noted the letter dated 1 April 2008 to the visa applicants and the husband’s and his employer’s responses; and
c)found that she was not satisfied that the husband was employed as a head cook from March 2005 to 12 December 2005 and, therefore, the husband did not satisfy cl.138.216(1) of Schedule 2 of the Regulations.
On 23 July 2008, the review applicant through her migration agent applied to the Tribunal for review of the delegate’s decision (CB252-268).
On 21 August 2008, the Tribunal sent a letter to the migration agent inviting her to comment on or respond to information (CB272-274). Relevantly, this included the following:
a)when applying for a visa, the husband nominated the occupation of cook. Further he, among other things, claimed to work as a chief cook at Abu M. Catering Services from March 2005 to the date of application;
b)Ms Mariwen Abu informed an officer of the Department in May 2006 that the husband had been working as a chief cook at Abu M. Catering Services since March 2005 on a per contract basis and that he did not receive a regular salary and had no benefits entitlements. His status was referred to as “on-call” and “freelance”;
c)the Departmental records indicated that, in a site visit to Abu M. Catering:
i)the business owner informed the officers that employment of staff was on a contract basis and employees report almost every other day during peak season and once a week during off peak;
ii)the employees are paid after each function and a payroll register is kept and each employee signs upon receipt of the salary;
iii)the husband had not been present during the Departmental visit and there was no function scheduled for that day; and
iv)the Departmental officers sighted the owners’ files relating to all employees and the payroll register and none of these files contained any information confirming that the husband had been employed by Abu M. Catering Services.
On 12 September 2008, the review applicant’s migration agent responded to the request for information, attaching (CB275-283):
a)a letter from Mariwen Abu (CB276-278) in which, relevantly, she stated that (i) the applicant was not given payslips because he was a relative and was paid more than other employees, (ii) some of the other cooks do not have payslips also, (iii) most of her employees were relatives, and as a result she did not pay attention to their files or payroll records;
b)a letter from Mary Ona, a neighbour of the husband which, relevantly, (i) attested that he had worked at Abu M. Catering Services, and (ii) stated that she had attended some of these services as a guest (CB279);
c)a statement by the husband in which, relevantly, he stated that he was not given payslips because he was paid more than other cooks as he was a relative of the owner (CB280, 282-3);
d)a copy of a statement submitted to the Department in which, relevantly, he stated that (i) he was ‘on call’ in that he only reported for duty when there was a scheduled service or catering to be taken, (ii) he did not have specific hours of work and was not obliged to report to work when there was no scheduled service, and (iii) prior to the Departmental visit, the employer had moved records to another branch to avoid them being destroyed by a typhoon (CB281);
e)an employment record of the husband (CB284);
f)a certificate relating to the husband’s employment at Solar Manning Services Philippines Agency, Inc (CB285); and
g)a seaman’s book record (CB286).
On 19 September 2008, the Tribunal invited the review applicant to attend a hearing before it (CB288), which she attended and at which she gave evidence together with Elizabeth Shepherd (the review applicant’s sister) and the primary visa applicant (by telephone) (CB295 and 325 at [17]).
On 24 October 2008, the review applicant’s migration agent sent the Tribunal, additional material, including (CB299-316):
a)a further statement of the husband (CB299-303). By way of summary, relevantly, he (i) set out the circumstances by which he came to be employed by Abu M. Catering Services, (ii) discussed his work pattern during the ‘peak’ season and the nature of his work, (iii) reiterated that he did not have payslip records because the employer was related to him, (iv) indicated that it was not customary in the Philippines that salary was deposited in a bank account and that local employment did not involve paper work; and
b)a further statement of Mariwen Abu that addressed (i) the quantum of monies paid to the husband, and (ii) that she did not have ‘Bio-Data’ records relating to the husband because she had transferred them to another branch to avoid them being damaged by a typhoon.
The Tribunal's decision
The Tribunal:
a)Set out the relevant law as applicable to this particular visa (CB 320 to 321 at [5] to [12]).
b)Considered whether the primary visa applicant had met the criteria for either visa subclasses 138 or 139.
c)Found in respect of subclause 139 that by reason of the review applicant residing outside of the requisite designated area for the purposes of item 6701 of Schedule 6, that the applicants were not entitled to the grant of subclass 139 visas (CB 329 at [58].
d)Identified that the issue in the present case was whether the primary visa applicant met clauses 138.216(1) and 138.225A(1) of the Regulations of which it stated:
relevantly require the applicant to have been employed in a skilled occupation for a specified period…cl 138.216(1) requires the applicant to be employed in a skilled occupation for a period of, or for periods totalling, at least 12 months in the period of 18 months immediately before the day on which the application was made. As the application was made on 13 December 2005, the relevant period is from 13 June 2004 to 12 December 2005. (CB 329 at [61]).
e)Was satisfied on the basis of the material before it that the primary visa applicant had been employed as a cook for at least 20 hours weekly between June 2004 and December 2004 (CB 330 at [63]). The Tribunal was also required to determine whether the primary visa applicant had been employed in a skilled occupation by Abu M. Catering Services for at least 6 months (to satisfy the relevant period). The Tribunal accepted that the primary visa applicant had worked at Abu M. Catering Services. However, the Tribunal found the following in relation to the nature of that employment:
i)the review applicant gave evidence that the primary visa applicant only worked on weekends for Abu M Catering Services;
ii)Ms Abu’s statement indicated that the primary visa applicant sometimes took only one or two functions a week from Abu M Catering Services;
iii)the statement received by the Tribunal on 24 October 2008 which sought to explain inconsistencies in the evidence on this topic was prepared with a view to satisfy those concerns in a way which the Tribunal concluded did not genuinely reflect the primary visa applicant’s employment circumstances;
iv)the evidence going to the issue was confused and the Tribunal considered the lack of independent documentary evidence to be concerning.
f)Was not satisfied that the primary visa applicant had been employed at Abu M Catering Services as a cook or in any other skilled occupation in that business for at least 20 hours per week from March 2005 to the date of the application (CB 331 at [71]).
g)Concluded that the primary visa applicant had not been employed in a skilled occupation for the requisite period and did not meet clause 138.216(1) (CB 331 at [72]).
h)Found that the primary visa applicant had not obtained the necessary educational qualifications specified in clause 138.216(2) (CB 331 at [72]).
The application and evidence
These proceedings began with a show cause application filed on 28 November 2008. The applicant now relies upon an amended application filed on 27 February 2009. The grounds in the amended application are:
1. The Second Respondent (“Tribunal”) committed jurisdictional error by failing to consider the claims advanced by or on behalf of the primary visa applicant or a component integer of the claims explaining the lack of independent and verifiable documentary evidence in support of his claims.
2. The Second Respondent committed jurisdictional error by [failing] to comply with section 360 of the Migration Act 1958 (Cth) (“Act”).
Particulars
(i) The following were issues that arose in relation to the Second Respondent’s decision:
(A) The statement provided by Ms Ona in support of the application for review did not state the period of the visa applicant’s employment, hours of work or nature of his duties and responsibilities at the Abu M. Catering Service (paragraph [68] of the Second Respondent’s decision).
(B) The employment records relating to the visa applicant’s employment at the Abu M. Catering Service did not state the hours of the visa applicant’s employment or the nature of his duties (paragraph [69] of the Second Respondent’s decision).
(ii) However, these issues were not considered dispositive by the delegate nor did the Second Respondent take any step to identify these issues to the Applicant as important.
(iii) In the circumstances, the Second Respondent breached its obligation under section 360 to invite the Applicant to a hearing to give evidence and present arguments relating to the issues arising in relation to the decision under review.
3. The Second Respondent committed jurisdictional error by making an adverse credibility finding that was not:
(a) open to it on the basis of the evidence placed before it;
(b) made after consideration of matters that were logically probative of the issue of credibility;
(c) rational, logical, articulated properly, reasoned, judicial or otherwise open to it.
4. The Tribunal committed jurisdictional error by breaching section 359A of the Act.
Particulars
(i) The statement by the primary visa applicant’s employer to Departmental officers that the primary visa applicant did not have fixed dates of employment was information that would be the reason or part of the reason for the Tribunal’s decision.
(ii) The Tribunal did not comply with the requirements of section 359A in respect of the said information.
I received as evidence an amended affidavit of Xidan Tong, a registered migration agent, who relevantly deposes as follows:
On or about 17 October 2008, I attended a hearing before the Migration Review Tribunal in relation to the application which is the subject of these proceedings.
To the best of my belief, at no stage during the hearing did the Tribunal inform me or the Review Applicant that the following were issues that arose in relation to its decision:
a) the statement provided by Ms Ona in support of the application for review did not state the period of the primary visa applicant’s employment, hours of work or nature of his duties and responsibilities at Abu M. Catering Service;
b) the employment records relating to the primary visa applicant’s employment at the Abu M. Catering Service did not state the hours of his employment or the nature of his duties.
To the best of my belief, at no stage during the hearing did I give to the Tribunal the following information – that the primary visa applicant’s employer informed the Departmental officers that the primary visa applicant did not have fixed dates of employment.
That evidence was not challenged.
I also received as evidence the court book filed on 22 January 2009.
Submissions
The applicant submits that there was no consideration by the Tribunal of the primary visa applicant’s following claims:
a)he was paid more wages than the other cooks, and the employer did not want to make them jealous (CB277.3);
b)his “bio-data” record had been transferred to another branch to avoid it from being damaged by a typhoon (CB304.5);
c)he did not have a bank account (CB302.3); and
d)it was not customary in the Philippines that salary was deposited in a bank account and local employment did not involve paperwork (CB302.4).
The applicant submits that because the Tribunal considered the primary visa applicant’s claim that his employer was related to him (CB330 at [67]) it should be inferred from the Tribunal’s silence in respect of the other matters that they were not considered.
In relation to ground 2, the applicant submits that the following issues not considered dispositive by the delegate (because they were raised after the delegate’s decision) were essential and significant issues in the review:
a)the statement provided by Ms Ona in support of the application for review did not state the period of the primary visa applicant’s employment, hours of work or nature of his duties and responsibilities at the Abu M. Catering Service (CB330 at [68]); and
b)the employment records relating to the visa applicant’s employment at the Abu M. Catering Service did not state the hours of the primary visa applicant’s employment or the nature of his duties (CB330-331 at [69].
The applicant submits that the Tribunal thereby fell into error for the reasons identified by the High Court in SZBEL v Minister for Immigration (2006) 228 CLR 152 at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Hayden JJ.
In relation to ground 3, the applicant submits that the credibility finding by the Tribunal was flawed in relation to the primary visa applicant’s claims that he was employed as a cook and that his employment was for at least 20 hours per week. Relevantly, the applicant submits:
Clearly the credibility of the husband was a matter for the Tribunal. However:
a)a credibility finding must be (i) open to it on the basis of the evidence placed before it and (ii) made after consideration of matters that were logically probative of the issue of credibility: Kopalapillai v Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547 at 559;
b)a credibility finding must also be ‘judicial’ in that it is rational, reasonable and not arbitrary: WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 80 ALD 468 at [19]-[22] per Lee and Tamberlin JJ; applied in SZLGP v Minister for Immigration & Citizenship [2008] FCA 1198 per Gordon J;
c)its findings must be supported by some evidence: SZEPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 133; SZCLE v Minister For Immigration [2005] FMCA 1551 at [21]-[26] per Scarlett FM; Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 at [5]-[13] per Wilcox, French and Finkelstein JJ; SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231 at [18]-[30] per Mansfield, Selway and Bennett JJ; [8]-[10] per Tamberlin J;
d)where a finding of inconsistency is based upon a misunderstanding of the Applicant’s claims as put to the Tribunal, there is jurisdictional error: SZMIA v Minister for Immigration and Citizenship [2008] FCA 1909 at [33]-[35] per Rares J.
It is submitted that the Tribunal decision fell afoul of the above principles in a number of respects.
First matter
The Tribunal found that there was an inconsistency between:
a)the evidence of the husband’s employer that the husband worked on an ‘on call’ basis and that he did not have fixed dates of employment or a fixed salary; and
b)the husband’s evidence that he worked on certain dates three days a week, was paid a fixed salary for the service and was not given payslips for his employment.
This perceived inconsistency is based upon a misunderstanding of the Applicant’s claims – the husband’s evidence was that the business had services three days per week, not that he worked three days per week (CB210.5 – use of “we”). This failure to understand the husband’s claims as put to the Tribunal resulted in a finding of inconsistency, which undermined his credit. Pursuant to SZMIA at [33]-[35], the Tribunal engaged in jurisdictional error.
Further, logically there is no inconsistency in the balance of the evidence set out above:
a)the husband’s evidence was that he was paid a fixed salary for a service, which is not inconsistent with the statement of the employer that he did not have a fixed salary given that the number of services could vary;
b)the fact that the husband’s evidence was that he was not given payslips for his employment did not contradict anything said by the employer.
Accordingly, a finding of inconsistency was not open to the Tribunal on the basis of the evidence (Kopalapillai). Alternatively, the finding was not reasoned in the WAIJ/SZLGP sense, or it was a finding made in the absence of evidence (as per the cases collected above).
Second matter
Second, the Tribunal held that there was a further inconsistency in that:
a)the husband’s employer claimed that he worked on three days a week before each function;
b) whereas the husband claimed that he took one or two functions a week.
This is based upon a misunderstanding of the evidence of the employer, given that the employer claimed that the business generally had three services a week; not that the Applicant worked three days per week (CB213.5). In other words, the finding made by the Tribunal in this regard was not open to the Tribunal on the evidence before it, contrary to Kopalapillai or it was a finding made in the absence of evidence contrary to the cases collected above.
Third matter
Third, the Tribunal found an inconsistency between:
a)the evidence of the husband and employer which suggested that the husband worked during the week; and
b)that of the Review Applicant, who was unfamiliar with the husband’s hours of work, who said she thought that he worked on weekends.
This finding was not reasoned in the WAIJ/SZGLP sense, because it is irrational and illogical to use the evidence of a person whom the Tribunal accepted was unfamiliar with the husband’s hours of work to undermine the husband’s and employer’s evidence as to his hours of work. As a matter of rationality or logic, once it is accepted that a person is unfamiliar with a particular subject matter, any evidence that they give in that regard should be disregarded. There is no rational or logical basis upon which that evidence should be accepted for any purpose.
Fourth matter
Fourth, the Tribunal relied upon evidence to the effect that the husband operated a store with the assistance of another person during the week (CB330[65]). This in itself did not provide any basis upon which the Tribunal could find an inconsistency or otherwise reject the husband’s claim to have worked as a cook for at least twenty hours per week at Abu M. Catering Services because the two matters were entirely compatible. Thus its finding that this undermined the husband’s claims was not open to it and/or this matter was not logically probative of the number of hours that he worked at Abu M. Catering Services, which amounted to jurisdictional error (Kopalapillai). Further and in the alternative, the Tribunal’s finding in this regard was not rational or logical, contrary to WAIJ/SZLGP.
It was open to the Tribunal of course to have found that it considered his work at his store to be sufficiently substantial such that it was unlikely that the husband consistency worked twenty hours per week as a cook also. If it had done this, then its finding would have been open to it. However, this is not what the Tribunal did.
Fifth matter
Fifth, the Tribunal rejected the claims advanced by the Review Applicant in the submission of 24 October 2008 on the basis that [the] Tribunal:
a)… was of the view that the document was prepared in response to the Tribunal’s concerns raised at the hearing;
b)therefore, it was not satisfied that the explanations contained therein genuinely reflected the husband’s employment circumstances.
However, the fact that a document was prepared in response to concerns expressed by the Tribunal at a hearing cannot in itself be logically probative as to its veracity (hence it did not comply with Kopalapillai). That would mean that anything prepared by an applicant in response to a concern raised by the Tribunal at hearing would lack veracity and an applicant could therefore never satisfy the Tribunal’s concerns after a hearing. Put another way, the fact that an applicant wants to respond to something said at a hearing by the Tribunal does not mean that what the applicant says is untrue. Obviously the Tribunal was entitled to reject what was in the submission after considering its contents, but this is not what it did.
Alternatively, the finding was not rational or logical in the sense described in WAIJ/SZLGP.
Other matters
If the Court finds that any one of the reasons relied upon by the Tribunal to support its rejection of the claims is flawed, then the Tribunal engaged in jurisdictional error. As stated by Gleeson CJ in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 that (at [4]):
Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.
In relation to the fourth ground of review, the applicant submits that the Tribunal breached s.359A of the Migration Act by not disclosing to the review applicant and inviting comment on the information that the primary visa applicant did not have fixed dates of employment. This was an important matter in relation to the Tribunal’s findings as to inconsistency (CB330 at [65]).
The Minister submits in relation to ground 1:
The first respondent submits that there is no error in the manner alleged. The success or otherwise of the visa application in question turned upon the applicant’s ability to objectively satisfy prescribed criteria. The applicant’s “claims” were that he worked for certain employers in certain periods as required by the regulations. Explanations offered for his deficient evidence to establish that matter were not “claims” to which the Tribunal was mandated to have regard. At best they were items of oral evidence. Accordingly, even if the Tribunal failed to make reference to them, it is not required to refer to every piece of evidence in its reasons: see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]. As Madgwick J stated in SZAIX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 3 at [33]:
The Tribunal was under no obligation to recite every piece of evidence before it, and especially not required to recite evidence it found unconvincing on an issue.
The Tribunal plainly noted the various reasons given by the applicant for the lack of documentation (CB 324 [28]) but ultimately found the lack of evidence concerning (CB 330 at [67]. That finding was open to it and does not constitute a jurisdictional error.
In relation to ground 2 the Minister submits:
Addressed by paragraphs [30] to [33] of the applicant’s written submissions this ground purports to be a section 360/425 error of the kind identified in SZBEL v Minister For Immigration & Multicultural & Indigenous Affairs & Another (2006) 231 ALR 592. However, upon particularisation, it is plain that the applicant’s complaint is that the Tribunal was not persuaded by certain evidence advanced for the applicant, and that the applicant was not forewarned that the evidence would not be sufficient to address the Tribunal’s concerns.
It is true that in SZBEL (supra) the High Court found that a Tribunal must identify for an applicant the issues which are dispositive of the review (at [33] and [34]) however that is distinct from having to identify for an applicant what “its concerns would be in relation to its final decision”. As the majority in SZBEL stated at [48]:
Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry:
the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.”
The first respondent submits that the issues dispositive of the review, in the sense considered in SZBEL, were properly identified for the applicant. They included whether or not the visa applicant had been employed by Abu M Catering for the requisite period. Nothing in the SZBEL reasoning can be seen to support the proposition that whether a certain piece of evidence is of sufficient probative value will become a separate issue dispositive in the review.
In Minister for Immigration and Citizenship v Applicant A125 of 2003 & Anor (2007) 243 ALR 691 at 706 Emmett, Weinberg and Lander JJ stated the following at [87] to [88]:
The applicant submits that the following passage from SZBEL (at [47]) encapsulates his complaint regarding the RRT’s failure to comply with s 425:
[47] … But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
The short answer to the applicant’s submission based upon SZBEL is that s 425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL, and is an attempt to import the requirements of s 424A(1) into s 425.”
Considering the question of a Tribunal’s obligation to advise on the sufficiency of evidence Flick J stated the following in S1925 of 2003 v Minister for Immigration and Citizenship [2008] FCA 246 at [24]:
Nor can the Appellant avoid these consequences by, for example, contending that the failure to invite further clarification was a denial of procedural fairness. It was for the Appellant to advance such information as he considered relevant to his application. An invitation seeking further information was forwarded and a response provided by the Appellant. A party cannot thereafter, in effect, ask for an assessment from the Tribunal as to whether the response provided satisfied their concerns or not. Such assessments as were made by the Tribunal of the responses provided inherently involved part of the Tribunal’s decision-making processes. The rules of procedural fairness: “do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision: F Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock.
Procedural fairness does not require giving to an Applicant a running commentary on his prospects of success and warning him of every reason why his claims might not be thought sufficient to justify the relief sought: Applicant S 214 of 2003 v Refugee Review Tribunal [2006] FCA 375 at [32], 90 ALD 632 at 641 per Edmonds J. An appeal has been dismissed: Applicant S 214/2003 v Refugee Review Tribunal [2006] FCAFC 166.
The first respondent submits that the applicant’s construction of the section 360 obligation is misconceived and [this] ground of review should be dismissed.
The Minister contends that the third ground in effect seeks merits review. The Minister submits that a want of logic in reasons of the Tribunal is not a ground of review and that, in any event, there is no want of logic in the Tribunal not accepting explanations offered by an applicant in an attempt to address concerns raised by the Tribunal. Further, the Minister submits that the assertion that the Tribunal misunderstood the evidence in relation to the days of the week that the business operated is misconceived in that the document relied upon states that the business operated six days a week rather than the three asserted by the primary visa applicant.
The Minister denies any breach of s.359A of the Migration Act and submits:
The first respondent submits that this information was put to the applicant in several ways in the course of the section 359A letter namely:
Ms Mariwen Abu informed the officer that the applicant had been working for her as a Chief Cook since March 2005 on a per contract basis and that he did not receive a regular salary. (CB 273.6)
Ms Mariwen referred to the visa applicant’s status as ‘on-call’ and ‘freelance’. (CB 273.7)
The business owner informed the officers that employment of staff was on a contract basis and employees report almost every other day during peak season and once a week during off peak. (CB 273.8)
The applicant was informed that the relevance of all of this information to the review was that it:
may indicate that the visa applicant had not been employed in a skilled occupation for a period of, or for periods totalling at least 12 months in the period of 18 months immediately before the day on which the application is made.
The expression “fixed dates of employment” is not a term of art. It is more than adequately explained to the applicant in the terms in which his employer put it, namely that he was on-call and freelance. To seek to establish error by stating that information was not put to him is to ask this Honourable Court to approach the decision with an eye "keenly attuned to the perception of error": see the authorities referred to in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 as cited in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 250 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Even if that were not the case, the Tribunal’s decision in relation to this issue was based on inconsistency between the evidence of the applicant and the employer, and as such was not information for the purposes of the section: SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609.
At the trial of this matter I invited additional written submissions from the parties on the impact of the decision of his Honour Rares J in SZEWL v Minister for Immigration [2009] FCA 209 and also whether, because the review applicant and the visa applicants were different people, additional issues arise from the decision of the High Court in SZBEL. The Minister filed supplementary submissions on 25 March 2009 which relevantly state:
In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294 McHugh, Kirby and Hayne JJ held that the Tribunal breached section 424A(1) by failing to give a review applicant written notice of oral evidence given by her daughter, where the daughter had been called as a witness by the Tribunal of its own motion.
In SZEWL (supra), the Tribunal used the evidence the review applicant’s alleged de facto (referred to in the judgment as “Ms L”) relating to her inquiries and her failure to tell the review applicant of them, as a basis for its rejection of his claim. Having considered a number of authorities dealing with oral evidence, Rares J concluded (at [44]) that:
on the proper construction of the Act, information given orally by a witness, other than the applicant for review, cannot be “information” that the applicant gave for the purpose of the application for review within the meaning of the exception of s 424A(3)(b). (emphasis added).
The first respondent says that where documentary evidence is advanced by an applicant, notwithstanding that the author of the evidence is a third party, the Tribunal is not required to put that information to the applicant for comment as they are plainly aware of the scope and limit of its content and therefore, any such documentary evidence falls within the section 424A(3)(b) exception: SZGJY v Minister for Immigration and Multicultural Affairs [2007] FCA 380 per Collier J at [19][1].
[1] The decision of Collier J in SZJGY was the subject of an application for special leave to appeal to the High Court which was refused. Following which, the applicant made a second application to the Federal Magistrates Court which, when refused as an abuse of process, he appealed to the Federal Court once again. In hearing that application for leave to appeal, Rares J (see SZGJY v Minister for Immigration and Citizenship [2008] FCA 888) said the following in respect of the Collier J’s decision in SZJGY: “[The applicant] appealed to this court which dismissed the appeal: SZGJY v Minister for Immigration and Multicultural Affairs [2007] FCA 380. The applicant then sought special leave to appeal from the High Court of Australia and on 12 December 2007 Gummow and Kiefel JJ dismissed the application: SZGJY v Minister for Immigration and Multicultural Affairs [2007] HCA Trans 783. Gummow J said that the tribunal had found the applicant’s claim lacked credibility and that the courts had held that that finding was available. There was no breach of any statutory or common law obligation of procedural fairness. He said there was no reason to doubt the correctness of the decisions of the courts below and special leave was accordingly refused.” (emphasis added).
That is distinct from the potential scenario which arises when an applicant calls a third person to give oral evidence on their behalf, which may result in unforeseen evidence being provided.
The first respondent submits that nothing in SZEWL gives rise to the proposition that third party documents/statements are not information given by a review applicant in circumstances where they themselves provide them to the Tribunal.
Moreover in the extract of judgment set out in paragraph [4] above, Rares J uses the expression “given orally by a witness”, his Honour is clearly recognising that distinction which is reinforced in paragraph [45] of judgment where his Honour emphasised that “a witness is not information”.
It is the same distinction alluded to by Branson J in SZECG v Minister for Immigration & Citizenship [2006] FCA 733 (cited in SZEWL with approval) at [23] where her Honour speculated that specific information given to a Tribunal orally by a witness at the request of an applicant would be information given by the applicant for the purpose of the application if the information were limited to a particular topic and the nature of the evidence was generally known to the applicant.
The distinguishing feature for the purposes of section 359A(3)(b) appears to be the question of certainty. Ordinarily, oral evidence that a witness will give is not finite or absolute at the time an applicant asks a Tribunal to take that evidence. Unless, as Branson J stated in SZECG, the evidence is limited to a discrete topic, that must be so. Presumably this is why, in SZEWL, Rares J stated at [45] that in the case of oral evidence of a third party witness:
It would be incongruous to hold that s 424A(3)(b) characterised everything that might be said by a witness nominated by an applicant for review as a person whom he or she wished the tribunal to call to give evidence as being “information … that the applicant gave for the purpose of the application for review”. The only “information” that could possibly be in that category would be the witness’s name and contact details. (emphasis added).
However, obviously written statements/evidence and documents are different. The parameters and content of written evidence is finite. Provided that such evidence is given (ie advanced) to the Tribunal by the review applicant, they immediately come within the ambit of the 359A(3)(b) exception. It is trite to observe that section 359A is directed toward according procedural fairness to a review applicant so that they are not taken by surprise by material that will be used to affirm the decision under review.
In the first respondent’s submission, when an applicant advances a document (which because of its content is not otherwise caught by the s 359A(3)(a) exception), they do so implying to the Tribunal that the contents of the document are known to them, and relied upon by them. They cannot afterwards seek to invoke section 359A to allege jurisdictional error by disowning knowledge of the content, and its use in a manner adverse to them.
The instant case is somewhat unusual insofar as the review applicant is not the visa applicant. Notwithstanding that, all written statements in the present matter which were authored by the visa applicant, were “given” to the Tribunal by the review applicant (by her authorised recipient).
Further, as an issue of fact, the applicant cannot submit to the Court that evidence given by the visa applicant as to his work circumstances, ought to have been put to the review applicant for comment, whilst simultaneously seeking to advance (by “Ground 3, Third Matter”) which relies on the premise that the review applicant was so unfamiliar with the visa applicant’s work circumstances her opinion ought to have been entirely disregarded by the Tribunal on that issue.
Lastly, there was a suggestion made at hearing that perhaps the fact that the visa applicant was not also the review applicant, may cast doubt upon the review applicant being on notice as to the issues dispositive in the review, in the sense contemplated in SZBEL v Minister For Immigration And Multicultural And Indigenous Affairs and Another (2006)231 ALR 592. The first respondent says that in the present case, even if that were so (which is not conceded) then a combination of the Tribunal’s letter of 21 August 2008 (CB 272 to 274) and the Tribunal’s discussion with the review applicant at hearing, resulted in the review applicant being on notice of the issues dispositive of the review.
The applicant filed supplementary submissions on 31 March 2009 which are relevantly as follows:
… It follows from SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 that the Tribunal is obliged to comply with section 357A(1) in respect of “information” given by a witness to the Tribunal. In SAAP, the Tribunal erred by failing to give an applicant written notice of oral evidence given by her daughter, in circumstances where the daughter had been called as a witness.
… Further, it follows from SZEWL v Minister for Immigration [2009] FCA 209 that this applies whether or not the witness had been called at the request of the Applicant. This is because “on the proper construction of the Act, information given orally by a witness, other than the Applicant for review, cannot be “information” that the applicant gave for the purpose of the application for review within the meaning of the exception of s 424A(3)(b)” (per Rares J at [44]).
The Minister suggests that there is a distinction to be drawn between oral evidence and documents, because of the degree of certainty associated with documents as opposed to oral evidence (paragraph 10 of the Minister’s Supplementary Submissions). However, the reason given by Rares J as to why oral evidence by a witness was not given by an Applicant was because it was the Tribunal rather than the Applicant that called witnesses (SZEWL at [44]-[45]). This so called “distinguishing feature” of certainty is not supported by the reasoning in the decision.
… In any event, the Minister’s reliance on a distinction between oral evidence and documents is misplaced, given that the position in respect of documents has been dealt with by the Full Court in SZGSI v Minister for Immigration and Citizenship (2007) 160 FCR 506. In this decision, the Full Court held that there was a breach of section 424A where the Tribunal failed to put a document provided by the second appellant to the first appellant in a manner that complied with section 424A. This decision, which has not been addressed by the Minister, is binding on the Court and points to a conclusion opposite to that advanced by the Minister. That is, it points to the conclusion that information (including documents) supplied to the Tribunal by a visa applicant must be put to a review applicant pursuant to section 357A.
(The irrelevance of the distinction between oral information and documents). Further, the reliance by the Minister on the distinction between oral evidence and documents is misconceived for the further reason that the “information” in the present case has nothing to do with documents:
a)the “information” relied upon by the Applicant is the fact that the husband’s employer informed the Departmental officers that the husband did not have fixed dates of employment. This concerns an oral statement by a third party to the Department; it has nothing to do with a document given by the Review Applicant to the Tribunal;
b)the Court noted that at CB327[46] the husband informed the Tribunal at hearing that his days of employment were not fixed, and it was in this context that its query regarding SZEWL arose (i.e. whether this meant that the information fell within section 357A(3)(b)). This is an oral statement by the husband to the Tribunal. Again, it does not concern a document given by the Review Applicant to the Tribunal.
(Application of relevant principles to present case). Applying the principles above:
a)in relation to the statement by the husband’s employer to the Department, being an oral statement by a third party to the Department, this clearly must be put to the Review Applicant for comment pursuant to section 357A. Once it is accepted that the statement was in itself adverse to the Review Applicant’s application (see paragraphs 51-55 of the Applicant’s submissions and note the submissions made at hearing), it falls squarely within Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27;
b)in relation to the oral statement made by the husband to the Tribunal at the hearing, this falls outside section 357A(3)(b) by virtue of SZEWL. That is, the evidence of the husband is not given by the Review Applicant because the husband is called by the Tribunal, not the Review Applicant; and
c)to the extent there is any suggestion that “information” given by a visa applicant need not be put to a visa applicant, this must be rejected pursuant to SZGSI.
(Minister’s supplementary submissions paragraph 14). The submission put by the Minister in paragraph 14 of his Supplementary Submissions confounds two separate issues. It is not clear why the Review Applicant’s unfamiliarity with the visa applicant’s work circumstances relieves the Tribunal of its obligations under section 357A(1) nor does the Minister identify any authority that supports this novel proposition. Further, to the extent that the Minister is submitting that there is no breach of section 357A(1) because there is no unfairness since the Applicant would not be able to respond meaningfully, this argument would be contrary to SAAP which disposed of the concept of technical breach. Either the Tribunal complied or did not comply with section 357A(1). The ability of the Applicant to meaningfully respond to a notice under that section is irrelevant.
Section 425
The short answer to the Minister’s submission at paragraph 15 of his Supplementary Submissions is that the letter of 21 August 2008 and the Tribunal’s discussion at the hearing did not identify the issues dispositive of the review. The dispositive issues were as follows:
a)the statement provided by Ms Ona in support of the application for review did not state the period of the visa applicant’s employment, hours of work or nature of his duties and responsibilities at the Abu M. Catering Service (CB330[68]);
b)the employment records relating to the visa applicant’s employment at the Abu M. Catering Services did not state the hours of the visa applicant’s employment or the nature of his duties (CB330-331[69]).
It is accepted that the Tribunal indicated to the Review Applicant that it was concerned about the husband’s employment and his hours of employment in a general sense (see in particular CB326[39]). However, its specific concerns regarding the evidence of Ms Ona and the employment records were not raised either at hearing or in the section 357A letter, whereas they were issues that were dispositive of the review.
The general disclosure referred to in the preceding paragraph was insufficient in view of the fact that the statement of Ms Ona and the employment records were provided at a time where the issue was whether the husband was employed at all by Abu M Catering, as opposed to his hours of work and in what capacity. These issues were only subsequently identified and, therefore, in the absence of the Tribunal specifically informing the Review Applicant that earlier evidence provided in answer to the issue at that time might be rejected because they did not address issues that arose later, this would not have been obvious to the Review Applicant.
The Minister sought a further oral hearing to deal with asserted confusion arising from the applicant’s supplementary submissions. I conducted a directions hearing on 30 April 2009 and, after hearing from counsel for the parties, permitted additional oral submissions to be made. Those submissions related to the distinction between oral information and documents and the impact of the decision in SZEWL.
Reasoning
Did the Tribunal fail to consider any elements or integers of the applicants’ claims?
The applicant contends that the following were elements or integers of his claims that were overlooked:
a)he was paid more wages than the other cooks, and the employer did not want to make them jealous (CB277.3);
b)his “bio-data” record had been transferred to an other branch to avoid it from being damaged by a typhoon (CB304.5);
c)he did not have a bank account (CB302.3); and
d)it was not customary in the Philippines that salary was deposited in a bank account and local employment did not involve paperwork (CB302.4).
The Tribunal stated [at 67] of its decision (CB 330):
In addition, the Tribunal is concerned about the lack of independent documentary evidence concerning the visa applicant’s employment at the catering service. The visa applicant explained in his submissions to the Tribunal that as a relative of the business owner, they agreed that he would not be given payslips, however the lack of documentary evidence does not assist the Tribunal in determining the hours of the visa applicant’s employment.
I do not accept the applicant’s contention that the reference by the Tribunal to the particular explanation advanced by the applicant for a lack of documentary evidence supporting his employment claims meant that the Tribunal gave no consideration to the applicant’s other explanations set out at [36] above. Mere silence on particular matters does not necessarily connote a lack of consideration[2]. Further, as the Minister’s submissions point out, there is a distinction between elements and integers of a claim and items of evidence. The issue here is somewhat more subtle because the visa applicant was seeking to advance explanations for a lack of documentary evidence of his employment in response to concerns expressed by the Tribunal. As stated in the Minister’s submissions, the Tribunal at [28] (CB 324) noted the explanations advanced by the visa applicant for the lack of documentation. The Tribunal in its reasons focused in particular on the issue of the hours of the visa applicant’s employment because that bore on a specific element of the criteria for the visa.
[2] WAEE v Minister for Immigration [2003] FCAFC 184 at [46]-[47]
The Tribunal, after considering the applicant’s explanation for a lack of documentary evidence supporting his claim of the hours of employment, stated at [70] of its reasons (CB331):
The combination of these reasons and lack of independent and verifiable documentary evidence about the hours of the visa applicant’s employment (for example taxation records or payslips) causes the Tribunal not to be satisfied that the visa applicant has been employed at Abu M. Catering Services as a Cook or in any other skilled occupation in that business for at least 20 hours weekly from March 2005 to the date of the application.
The additional explanations proffered by the visa applicant concerning the lack of documentary evidence supporting his asserted employment did not, in the context of the Tribunal’s reasons read as a whole, assuage the Tribunal’s concerns about the visa applicant’s hours of employment with Abu M. Catering Services. In my view, on the balance of probabilities, the Tribunal did take into account the various explanations offered by the visa applicant for the lack of documentary evidence and specifically mentioned the explanation bearing on the matter of most importance to the Tribunal. The Tribunal’s obligation to give reasons does not extend beyond the matters of significance to the Tribunal[3]. It does not follow that any evidence, let alone any element or integer of the visa applicant’s claims, was overlooked.
[3] Minister for Immigration v Yusuf (2001) 180 ALR 1
I reject the first ground of review.
Did the Tribunal breach s.360 of the Migration Act?
The applicant contends that the Tribunal breached s.360 of the Migration Act by failing to alert the applicant, at the hearing conducted by the Tribunal, of the following issues not considered dispositive by the delegate but which were in part dispositive of the review by the Tribunal:
a)The statement provided by Ms Ona in support of the application for review did not state the period of the principal visa applicant’s employment, hours of work or nature of his duties and responsibilities at the Abu M. Catering Service (paragraph [68] of the Tribunal’s decision).
b)The employment records relating to the principal visa applicant’s employment at the Abu M. Catering Service did not state his hours of employment or the nature of his duties (paragraph [69] of the Tribunal’s decision).
In SZBEL at [44] the High Court stated:
The Tribunal did not accord the appellant procedural fairness. The Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.
On the other hand, at [48] the High Court qualified that statement in the following terms:
Secondly, as Lord Diplock said in F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry[24]:
the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
Further, I accept the Minister’s submission that the obligation arising from the High Court’s judgment in SZBEL relates to the identification of issues, not doubts held by the Tribunal about particular aspects of evidence presented by or on behalf of an applicant. I accept, in that regard, the significance of the decision of the Federal Court in Applicant A125 at [87] and [88]:
The applicant submits that the following passage from SZBEL (at [47]) encapsulates his complaint regarding the RRT’s failure to comply with s 425:
But where, as here, there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
The short answer to the applicant’s submission based upon SZBEL is that s 425 does not require the RRT to identify the significance of the questions that it puts to a claimant or the ultimate matter or issue to which those questions go. That is not what is required by SZBEL, and is an attempt to import the requirements of s 424A(1) into s 425.
I also accept that Flick J emphasised the same point in S1925 of 2003 at [24]:
Nor can the Appellant avoid these consequences by, for example, contending that the failure to invite further clarification was a denial of procedural fairness. It was for the Appellant to advance such information as he considered relevant to his application. An invitation seeking further information was forwarded and a response provided by the Appellant. A party cannot thereafter, in effect, ask for an assessment from the Tribunal as to whether the response provided satisfied their concerns or not. Such assessments as were made by the Tribunal of the responses provided inherently involved part of the Tribunal’s decision-making processes. The rules of procedural fairness: "do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision": F Hoffman-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295 at 369 per Lord Diplock.
In this case, I note the assertion in the amended affidavit of Xidan Tong that the specific items relied upon by the applicant were not raised during the hearing. That evidence is unchallenged. On the other hand, the Tribunal’s decision record at [39] records that the Tribunal referred to the delegate’s concerns about the visa applicant’s employment and his hours of employment and sought the review applicant’s comment. Further, at [48] and [49] of the its reasons the Tribunal states (CB 327):
The Tribunal explained to the visa applicant that it needed to be satisfied that he worked as a cook at Abu Catering for at least 6 months. The Tribunal noted that it was concerned as to whether he had been employed in that company, about the nature of his employment, that is, whether he worked as a cook or as a chef and also whether he was employed for at least 20 hours a week. The Tribunal sought comments from the visa applicant. The visa applicant said that he was working for more than 20 hours a week and the only concern was that he did not have the payslips.
The Tribunal repeated its concerns to the review applicant. [T]he Tribunal explained that it needed to consider whether the visa applicant was employed, whether he was employed as a cook or a chef and whether he worked for at least 20 hours a week. The review applicant said that she did not wish to make any further comments.
Further, at [51] the Tribunal records that the review applicant’s representative requested further time to present submissions concerning the visa applicant’s employment at the store and whether such employment could have been at a skilled occupation.
I accept from the amended affidavit of Xidan Tong that the Tribunal did not specifically raise at the hearing a concern about Ms Ona’s statement not specifying the period of the visa applicant’s employment or duties and responsibilities and that the Tribunal did not specifically raise at the hearing the failure of the employer’s employment records to state the hours of the visa applicant’s employment or nature of his duties. Nevertheless, there can be no doubt that the Tribunal made clear to both the visa applicant and the review applicant at the hearing that it was concerned to establish whether the visa applicant worked for more than 20 hours a week and that his duties related to a skilled occupation of a chef. Those were both dispositive issues. The deficiencies in the evidence advanced in the course of the review by the visa and review applicants was not a separate dispositive issue. It was simply a deficiency in the evidence. The Tribunal was not required to put the review applicant on notice of those deficiencies, especially as the review applicant was already aware of the need to satisfy the Tribunal on the questions of the nature and hours of the visa applicant’s employment. As the High Court noted in SZBEL at [48] procedural fairness does not require the Tribunal to give an applicant a running commentary on what it thinks about the evidence it is given.
I do not think that any additional issues arise from the fact that the primary visa applicant and the review applicant were different people (although additional issues might hypothetically have arisen). I am satisfied that the relevant dispositive issues were adequately disclosed to the review applicant at the hearing, as is evidenced from the passage quoted above at [47].
I reject ground 2.
Did the Tribunal err in making adverse credibility findings?
The applicant contends that the adverse credibility finding by the Tribunal was flawed in relation to the visa applicant’s claims that he was employed as a cook and that his employment was for at least 20 hours a week. The applicant advances five matters where the Tribunal is said to have fallen into error in dealing with this issue of credibility. First, the Tribunal is said to have misunderstood the evidence of the visa applicant’s employer concerning the precise basis upon which the visa applicant worked. The applicant contends that the Tribunal was in error in finding an inconsistency between the visa applicant’s employer’s statements and those of the visa applicant. Secondly, the Tribunal is said to have erred in finding an inconsistency in relation to the visa applicant’s statements about working for the purposes of functions and the employer’s statements concerning the amount of time the visa applicant worked. Thirdly, the Tribunal is said to have erred in finding an inconsistency between statements of the employer and the visa applicant and the review applicant about whether the visa applicant worked on weekdays or weekends. Fourthly, the Tribunal is said to have erred in finding an incompatibility with the visa applicant operating a store and also working 20 hours a week as a chef. Fifthly, the Tribunal is said to have erred in rejecting as self serving, claims advanced by the review applicant in the submission on 24 October 2008.
The applicant concedes that assessments of credibility are matters for the Tribunal but contends that the specific conclusions reached were not opened to the Tribunal on the material before it because of erroneous consideration.
I accept that a different Tribunal might have reached different conclusions on the particular items of evidence discussed. I also accept the possibility that a different Tribunal might have taken the same view as that contended for by the applicant in relation to those items of evidence. That, however, is a far cry from accepting that the conclusions reached by the Tribunal were not open to it on the material before it. Mere illogicality in reasoning is insufficient[4].
[4] Minister for Immigration; ex parte Applicant S20/2002 (2003) 198 ALR 59 at [5] and [9] and SZBNK v Minister for Immigration [2005] FMCA 361 at [17]
At [65] of its reasons (CB 330) the Tribunal said:
Some of the information contained in these documents appears inconsistent with the information obtained by the Immigration officers in the course of their inquiries. Thus, the visa applicant’s employer claimed that the visa applicant worked on a ‘on call’ basis, that he did not have fixed dates of employment or a fixed salary. The visa applicant subsequently stated in his submissions to the delegate that he worked on certain dates, three days a week, was paid a fixed salary for the service and that he was not given payslips for his employment. The visa applicant explained that what he meant was that he would start work a day before the function. However according to a statement from Ms Abu which the review applicant provided to the Tribunal, the visa applicant had sometimes taken one or two functions a week, so that his statement that he worked on three days a week before each function appears inconsistent with the evidence from Ms Abu. The review applicant, while noting that she was not very familiar with her brother’s hours of employment, was of the opinion that the visa applicant only worked on weekends. Further, the via applicant provided evidence that at the same time he operated a store, albeit with the assistance of another person, during the week. The review applicant subsequently sought to explain these inconsistencies in the submission received by the Tribunal on 24 October 2008, however the Tribunal is of the view that his document was prepared in response to the Tribunal’s concerns raised at the hearing and the Tribunal is not satisfied that the explanations contained therein genuinely reflect the visa applicant’s employment circumstances.
It was up to the visa and review applicants to satisfy the Tribunal about the nature and duration of the visa applicant’s employment. There was confusion in the evidence. The applicant now seeks to negotiate a path through that confusion, as indeed the review applicant did in the submission received on 24 October 2008. However, the Tribunal was not bound to accept that submission. It was simply an argument seeking to persuade the Tribunal and it was not successful. It is unfair to represent the Tribunal’s rejection of the submissions as a rejection based simply on the temporal quality of it, as something prepared in response to the Tribunal’s concerns. The Tribunal is entitled to reject an attempt to deal with its concerns which is unpersuasive because it contains recent inventions, or involves an uncredible attempt to recraft claims or evidence. That is, in reality what the Tribunal did.
I accept the Minister’s submission that in relation to this ground the applicant’s contentions do not rise above an argument over the merits of the Tribunal’s assessment of the evidence and reasoning. No jurisdictional error has been established. I reject the third ground of review.
Did the Tribunal breach s.359A of the Migration Act?
The applicant contends that the Tribunal breached s.359A of the Migration Act by not disclosing and inviting comment on information obtained from the visa applicant’s employer by Departmental officers that the visa applicant did not have fixed dates of employment. The issue was plainly an important one as the Tribunal explained at [65] of its reasons.
On 21 August 2008 the Tribunal sent to the review applicant’s representative an invitation to comment which included the following:
In May 2006 an officer of DIAC rang the visa applicant’s employer and spoke to Ms Mariwen Abu, the owner and manager of the business. Ms Mariwen Abu informed the officer that the applicant had been working for her as a chief cook since March 2005 on a per contract basis and that he did not receive a regular salary and had no benefits or entitlements. Ms Mariwen Abu stated that the applicant’s duties included planning of the menu, purchasing ingredients and other items needed, food preparation, cooking and cleaning up after work is done. Ms Mariwen referred to the visa applicant’s status as “on-call” and “freelance”.
The letter stated that the information was relevant (together with other information disclosed) because it may indicate that the visa applicant had not been employed in a skilled occupation for a period of, or for periods totalling, at least 12 months in the period of 18 months immediately before the day when the application was made. The review applicant was also invited to provide the following additional information (CB272-274):
· A copy of the visa applicant’s correspondence to DIAC dated 26 May 2008
· Original payslips relating to the visa applicant’s employment with Abu M. Catering and corresponding bank statements showing salary deposits
· Taxation records evidencing visa applicant’s employment with Abu M. Catering
· Any other independent and verifiable document confirming the nature of the visa applicant’s employment with Abu M. Catering
The Minister contends that the relevant information was sufficiently disclosed and that it was sufficient to disclose that Ms Mariwen had referred to the visa applicant’s status as “on call” and “freelance”. In substance, this is said to sufficiently convey the idea that the visa applicant did not have fixed dates of employment.
I agree. In my view, the argument between the parties as to a distinction (if there is one) between oral and written information is a red herring. In relation to s.359A, the argument concerns the statement given by Ms Abu to DIAC. It matters not whether that statement was oral or in writing (it was oral). Whether it was oral or in writing, it was not information given by the review applicant for the purposes of the review. The Tribunal was bound to disclose that information and did so adequately. The reference to Ms Mariwen stating that the visa applicant’s status was “on call” and “freelance” sufficiently conveys the information that he was said not to have fixed days of employment. In SZEWL, Rares J found that the Tribunal breached s.424A of the Migration Act by not disclosing and inviting comment on information given by a witness other than the applicant to the Tribunal. At [47] his Honour said:
In my opinion, “information” within the meaning of s.424A must relate to what a witness said to the tribunal, or what is contained in documentation before the tribunal. Such a construction is reinforced by consideration of s.424. That section entitles the tribunal to get any information that it considers relevant. And, s.424(2) authorises the tribunal to invite a person “to give additional information”. In other words when a person, not being the applicant, gives the tribunal information, that information is not “given by the applicant for review” within the meaning of ss.424(2) or 424A(3)(b).
The issue here is one step removed because Ms Mariwen was not a witness before the Tribunal in relation to the information in issue. She gave information to DIAC for the purposes of the consideration of the visa application by the delegate. It was disclosable information but sufficient particulars of the information was disclosed in the s.359A letter.
I conclude that none of the grounds of review in the amended application have been made out. I find that the Tribunal decision is a privative clause decision and the application must be dismissed.
I will hear the parties as to costs.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 June 2009
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