Hasnat v Minister for Immigration and Anor
[2017] FCCA 3048
•5 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HASNAT v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3048 |
| Catchwords: PRACTICE AND PROCEDURE – Application for an adjournment – whether an adjournment was in the interests of the administration of justice – application refused. |
| Legislation: Migration Act 1958 (Cth), ss.359AA, 375A, 476 Migration Regulations 1994 (Cth), Schedule 2, cl 886.225, Schedule 4, Public Interest Criterion 4020 |
| Applicant: | MOHAMMED ABUL HASNAT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 955 of 2017 |
| Judgment of: | Judge Street |
| Hearing date: | 5 December 2017 |
| Date of Last Submission: | 5 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2017 |
REPRESENTATION
| The applicant appeared in person. |
| Solicitors for the Respondents: | Ms G Doyle Sparke Helmore Lawyers |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 955 of 2017
| MOHAMMED ABUL HASNAT |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 7 March 2017 affirming a decision of the delegate not to grant the applicant a Skilled (Residence) (Class VB) visa. The applicant is a citizen of Bangladesh and applied for the visa on 30 June 2010. On 12 January 2016, the delegate refused the grant of a visa.
The Tribunal’s decision
On 27 January 2016, the applicant applied for review. By letter dated 17 January 2017, the applicant was invited to attend a hearing before the Tribunal on 17 February 2017. The applicant appeared on that date to give evidence and present arguments. The applicant was represented by his migration agent at that hearing.
The Tribunal identified that the issue in the present case was whether the applicant meets the public interest criterion (“PIC”) 4020 as required by cl 886.225 of the Migration Regulations 1994 (“the Regulations”). The Tribunal identified that the requirements of PIC 4020(1) and (2) can be waived if there are compelling or compassionate reasons justifying the granting of a visa. The Tribunal identified the information provided by the applicant, in which he claims a suitable skills assessment from TRA dated 4 December 2009 and that he was employed at a restaurant from 1 October 2008 to 10 October 2009.
Applicant’s employment evidence
The Tribunal referred to the delegate’s finding that the information provided by the applicant as to his employment was inconsistent with the restaurant owner’s evidence, who could not confirm the applicant’s employment. The Tribunal referred to the records kept for volunteers, and those records were unable to verify the applicant’s identity or confirm his employment with the restaurant. The delegate concluded that the work reference provided to TRA by the applicant for the purpose of obtaining a skills assessment was a bogus document.
The delegate noted that the applicant was provided with an opportunity on 20 August 2015 to comment on the concern that non-genuine information had been supplied to the Department. The delegate noted the applicant did not respond to that invitation, and the delegate concluded that the applicant did not satisfy PIC 4020 because a bogus document had been given to the Department.
The Tribunal made reference to the applicant’s claim in relation to having worked for Mr Moti Mahal, the restaurant’s previous owner, for the period of October 2008 to October 2009. The Tribunal referred to the TRA skills assessment provided and to the statutory declaration provided by the applicant to the Tribunal. The Tribunal referred to a medical certificate provided from Dr Alam dated 15 February 2017. At the hearing the Tribunal discussed with the applicant the requirements of cl 866.225 and PIC 4020, including the waiver of provisions.
Section 357A certificate
The Tribunal made express reference to explaining to the applicant that the Department had issued a s 357A certificate regarding disclosure of certain information to the Tribunal. The Tribunal, in its reasons, records explaining that the information pertained to third parties and that the Tribunal had formed the view its disclosure may cause detriment to those parties. The Tribunal explained that it was of the view that the certificate was valid and invited the applicant to make comment on its validity. The Tribunal noted that the applicant did not put any submissions in relation to the validity.
The Tribunal noted the applicant had acknowledged that he did not work as a cook after completing the experience. The Tribunal noted the applicant had no explanation as to why he had not sought to secure employment as a cook since finishing at Moti Mahal. The Tribunal raised with the applicant anomalies in relation to the information he provided and noted the applicant was unable to provide an explanation. The Tribunal invited the applicant, under s 359AA, to comment and/or respond to the information it considered to be the reason, or part of the reason, for affirming the decision under review. The Tribunal made express reference to informing the applicant he may seek additional time to comment or respond to the information and that the Tribunal would consider whether it was reasonable for him to be given additional time.
Bogus document
The Tribunal referred to the departmental file recording the investigation undertaken in March 2011 as to the applicant’s employment at the restaurant. The Tribunal explained that when shown a photo board including the photograph of the applicant neither Mr Ahmed or Mr Mondal could verify the applicant had worked at the restaurant. The Tribunal gave particulars that neither verified that they had given a work reference. The Tribunal explained that this information is relevant to the review because if relied upon it may cast doubt on the applicant’s claims to have worked at Moti Mahal in the period October 2008 to October 2009.
The Tribunal explained that it may find that the applicant did not work at the restaurant as claimed in the work reference used to obtain the TRA skills assessment. The Tribunal explained that it may not then be satisfied that there is no evidence that the applicant has provided a bogus document and/or false or misleading information in material particular in relation to his visa application, and that he would not satisfy PIC 4020(1). The Tribunal explained that if the requirement in PIC 4020(1) is not waived, the decision under review would be affirmed. The Tribunal noted the applicant did not seek further time and asserted that he had worked for them. The Tribunal proceeded to consider whether or not the applicant had provided a bonus document or information that is false or misleading in a material particular. The Tribunal found that it was not satisfied there is no evidence the applicant has given, or caused to be given, to the Minister or to the Tribunal a bogus document and/or information that is false or misleading in material particular in relation to the visa application.
The Tribunal made reference to the material casting doubt on the applicant’s claims about the severity of his condition. The Tribunal found, based on the information before it, that during the investigation undertaken in March 2011 by the Department, Mr Ahmed and Mr Mondal were shown a photo board, including the photograph of the applicant, and neither Mr Ahmed or Mr Mondal would verify the applicant had worked at the Moti Mahal restaurant as claimed in his work reference used to obtain the TRA assessment.
The Tribunal noted that it had other concerns about the inconsistencies and anomalies in the evidence before it. The Tribunal found that the inconsistencies and anomalies could not be adequately explained by reason of the applicant having a condition of stress, anxiety or depression. The Tribunal formed the view that the applicant did not undertake 900 hours’ work experience in the period October 2008 to October 2009. The Tribunal was not satisfied the applicant undertook the work experience described in the work reference dated 15 October 2009 provided to the Tribunal and to TRA for the purpose of obtaining a skills assessment.
The Tribunal found that Mr Ahmed did not indicate during the Department’s investigation that he recognised the applicant because the applicant did not work at the restaurant as the applicant claimed. The Tribunal was not satisfied that it could rely upon the statutory declaration attested by Mr Ahmed. The Tribunal found that it was not satisfied the applicant was employed as a volunteer cook at the Moti Mahal Indian restaurant from 1 October 2008 to 10 October 2009 and that the applicant completed more than 900 hours work experience, as stated in the work reference provided to TRA for the skills assessment and to the Tribunal in relation to the visa application.
The Tribunal found that the TRA assessment which was provided to the Department with the visa application is a bogus document because the Tribunal reasonably suspects that the TRA assessment was obtained because of a false or misleading statement, namely, the work reference indicating that he completed at least 900 hours’ work experience) pursuant to s 5(1)(c). The Tribunal was not satisfied there is no evidence that the applicant has given or caused to be given to the Minister a bogus document or information that is false or misleading or material particular in relation to his visa application.
It was in those circumstances the Tribunal found the applicant did not meet PIC 4020(1). The Tribunal was not satisfied that the requirements should be waived. The Tribunal was not satisfied on the evidence before it that the applicant possesses skills and qualifications which could be utilised in Australia such that there are compelling circumstances that affect the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen to justify the grant of a visa.
The Tribunal concluded that the requirements of PIC 4020(1) should not be waived and in those circumstances found that the decision should be affirmed.
Proceedings before this Court
Nature of the hearing
This matter was fixed for a final hearing by orders this Court made on 8 September 2017. At the commencement of the hearing, the Court explained to the applicant that this was a final hearing to determine whether the decision of the Tribunal was affected by relevant legal error. The Court explained that the relevant legal error had to be either an excess of statutory power or a denial of procedural fairness to the applicant. The Court explained that, in summary, this mean the Court was considering whether the Tribunal’s decision was unlawful or unfair.
The Court explained that if satisfied the Tribunal’s decision was unlawful or unfair, the decision would be set aside and sent back for further review. The Court explained that if not satisfied the Tribunal’s decision was unlawful or unfair, the application would be dismissed with costs.
The Court explained that it would have identified the evidence and then hear submissions from the applicant and then hear submissions from the solicitor for the first respondent provided the applicant put submissions, and then hear submissions from the applicant in reply. The applicant confirmed that he understood the nature of the hearing, as explained by the Court.
Adjournment request
From the bar table, the applicant then indicated that he wished to seek an adjournment because he thought this was only a conditional hearing and that his matter would be heard next year.
No earlier notice of an adjournment application had been given by the applicant to the first respondent. The first respondent opposed the adjournment. The orders made by the Court clearly identified that the matter was fixed for a final hearing. Nothing said by the applicant identified any basis upon which an adjournment is warranted in the interests of the administration of justice. It is for these reasons an adjournment was refused.
Grounds of the application
The grounds of the application are as follows:
1. DIBP did not investigate properly about my work experience to know whether they are real or bogus.
2. DIBP declared my past work experience invalid, which was not based on proper investigation.
3. AAT did not exercise its power to quashed the decision taken by DIBP even though it has right to do so.
When invited to put submissions as to why the Tribunal’s decision was unlawful or unfair or in support of the grounds of the application, the applicant indicated he did not wish to put any submissions. The Court reminded the applicant that it would not call upon the solicitor for the first respondent if he put no submissions and the applicant maintained the position that he did not wish to put submissions.
Section 375A certificate
The Court invited the solicitor for the first respondent to address the issue in respect of the s 375A certificate. The first respondent submitted that the circumstances in the present case were those where the Tribunal had identified that the certificate was one that the Tribunal considered valid and that the Tribunal raised with the applicant the substance of the information potentially adverse to the applicant and, on the face of the Tribunal’s reasons, complied with the requirements of s 359AA in respect to that information.
It was in those circumstances the first respondent submitted that there had been no jurisdictional error and denial of procedural fairness to the applicant by reason of the non-provision of the documents the subject of the certificate under s 375A.
The Court again invited the applicant to respond to the submissions of the first respondent and put submissions as to why the Tribunal’s decision was unlawful or unfair. No submissions were put by the applicant.
I accept the first respondent’s submissions. No jurisdictional error or denial of procedural fairness occurred because of the s 375A certificate and the substance of the documents was sufficiently disclosed to the applicant in the course of the review. The applicant had a proper opportunity to respond to the substance of the documents. On the face of the material before the Court the Tribunal complied with s 359AA.
Consideration
Ground 1
Ground 1 seeks to cavil with the adverse findings by the Tribunal. The adverse findings by the Tribunal in relation to the bogus document were open for the reasons given by the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with its obligations of procedural fairness in the conduct of the review.
In substance, Ground 1 is an invitation to this Court to engage in impermissible merits review. No jurisdictional error is made out by Ground 1.
Ground 2
In relation to Ground 2, this, in substance, is a ground cavilling with the adverse findings by the Tribunal. For the reasons already given, the adverse findings were open to the Tribunal for the reasons given by the Tribunal. It was a matter for the Tribunal to determine the applicant’s credit. The adverse credit findings cannot be said to lack an evident and intelligible justification. No jurisdictional error is made out by Ground 2.
In relation to Ground 3, this, in substance, again addresses a disagreement with the adverse findings, but does not identify any jurisdictional error. For the reasons already given, the Tribunal, on the face of its reasons, complied with the statutory requirements in the conduct of the review and made findings that were open. No jurisdictional error is made out by Ground 3.
Conclusion
As the application fails to make out any jurisdictional error, the application is dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 23 January 2018
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