Jayarathne v Minister for Immigration

[2018] FCCA 938

FEDERAL CIRCUIT COURT OF AUSTRALIA

JAYARATHNE & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 938

Catchwords:
MIGRATION – Administrative Appeals Tribunal – Skilled (Provisional) (Class VC) (subclass 485) visa – the applicants provided a Trades Recognition Australia skills assessment – the skills assessment was based in part on a work reference saying that the first applicant had worked for more than 900 hours with a particular employer – that employer was believed to have participated in a fraudulent scheme whereby work references were exchanged for money – the Tribunal found that the applicants had provided a bogus document and accordingly did not satisfy public interest criterion 4020 – whether the Tribunal’s findings were irrational – whether the Tribunal made a jurisdictional error in not giving the applicants certain documents pursuant to s.362A of the Act – whether the Tribunal misunderstood Privacy Principle 6 and thereby fell into jurisdictional error.

Legislation:
Migration Act 1958, s.362A
Migration Regulations 1994, cl.485.224 of Schedule 2, Public Interest Criterion 4020 of Schedule 4
Privacy Act 1988, Privacy Principle 6

Cases cited:
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; (2013) 136 ALD 41; (2013) 302 ALR 572; [2013] FCA 317
Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568; [1996] 9 Leg Rep 2; [1996] HCA 6

First Applicant: URENI NELKA JAYARATHNE

Second Applicant: SHAMAN NALEEN JAYASEKARA

Third Applicant: THARINDU SASANKA JAYASEKARA

Fourth Applicant:

THARUSHI SANDUNIKA JAYASEKARA

By her litigation guardian, the first applicant

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 224 of 2016

Judgment of: Judge Riley

Hearing date: 13 March 2018

Date of last submission: 13 March 2018

Delivered at: Melbourne

Delivered on: 18 April 2018

REPRESENTATION

Counsel for the applicants: Mathew Kenneally

Solicitors for the applicants: WLW Migration Lawyers

Counsel for the first respondent: Catherine Symons

Counsel for the second respondent: No appearance

Solicitors for the respondents: Australian Government Solicitor

ORDERS

1. The application filed on 8 February 2016 and amended on 7 March 2018 be dismissed.

2. The applicants pay the first respondent’s costs of the proceeding fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 224 of 2016

URENI NELKA JAYARATHNE

First Applicant

SHAMAN NALEEN JAYASEKARA

Second Applicant

THARINDU SASANKA JAYASEKARA

Third Applicant

THARUSHI SANDUNIKA JAYASEKARA

Fourth Applicant
By her litigation guardian, the first applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”).  In that decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) not to grant the applicants Skilled (Provisional) (Class VC) (subclass 485) visas.

2. The second applicant is the husband of the first applicant and the third and fourth applicants are their children.

3. The applicants applied for Skilled (Provisional) (Class VC) (subclass 485) visas (“the visas”) on 2 March 2009.  The basis of the application was that the first applicant had a skills assessment dated 27 May 2008 from Trades Recognition Australia (“TRA”).

4. A delegate of the Minister refused to grant the visas on 28 December 2012 on the basis that the first applicant did not satisfy cl.485.224 of Schedule 2 of the Migration Regulations 1994 (“the Regulations”). That regulation required that the applicants meet Public Interest Criterion 4020 of Part 1 of Schedule 4 of the Regulations (“PIC4020”). PIC 4020 provided that:

   (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. The delegate found that the first applicant had provided a bogus document, being her TRA skills assessment.  That document was based in part on a work reference from Axilleon Continental Cakes, Biscuits, Pastries (“Axilleon Cakes”).  The work reference said that the first applicant had work experience, in an unpaid and voluntary capacity, of more than 900 hours with Axilleon Cakes.  The work reference appeared to have been signed by the manager and owner of the business, Ms Tina Galanos, and was dated 6 December 2007.

6. The delegate noted that a person whose identity is the subject of a continuing suppression order by the County Court of Victoria and who will be called Mr X in these reasons, pleaded guilty on 4 November 2011 to offences arising from him preparing work references that falsely represented that certain visa applicants had over 900 hours work experience with various employers.

7. Mr X admitted that he was paid a fee by some visa applicants to prepare the false work references for them and admitted that he paid a fee to employers who allowed him to issue the work references in the names of their businesses.  Mr X admitted that Axilleon Cakes was one such business and that he signed work references in Ms Galanos’s name with her permission. 

8. Mr X admitted that he commenced the fraudulent scheme with Ms Galanos in late 2006.  The first applicant’s work reference alleges that she worked with Axilleon Cakes between 13 September 2006 and 28 November 2007.   Mr X admitted that some of the visa applicants may have worked some hours with their alleged employer, but he believed they generally did not complete the required 900 hours.

The applicants’ claims

1. The applicants did not dispute that Mr X had provided false work references for some people.  However, the applicants submitted that the first applicant had actually done 920 hours of unpaid work experience with Axilleon Cakes and that her work reference was genuine.

The proceedings before the Tribunal

1. The applicants attended a hearing before the Tribunal on 19 August 2015.  The applicants were represented at the hearing by their migration agent.

2. During the hearing, the Tribunal put to the applicants various statements made by Mr X.  The applicants responded at the hearing and also provided post-hearing written submissions.  On legal advice, Ms Galanos declined to assist the applicants with their application to the Tribunal.[1]  The applicants provided a statutory declaration from a friend and a letter from another friend. However,  they did not say that the first applicant had worked for over 900 hours at Axilleon Cakes.

   [1]  Paragraph 24 of the Tribunal’s reasons for decision

Ground 1

1. The first ground of review in the application filed on 8 February 2016 and amended on 7 March 2018 is:

   The Tribunal’s finding that the Applicant did not satisfy Public Interest Criteria 4020 decision on 8 January 2016 that the Applicant did not satisfy Public Interest Criteria 4020 because she had provided a bogus document was irrational and/or unreasonable because it was based on findings that lacked a logical, rational, or probative basis.

   Particulars

   (a)The Tribunal concluded at [52] - [54] of its reasons that the Applicant did not satisfy Public Interest Criteria 4020 because she provided a bogus document: a skills assessment from Trades Recognition Australia.

   (b)The skills assessment was based on information contained in a reference from Ms Galanos dated 6 December 2017 (Galanos reference) to the effect that the Applicant had performed 920 hours of work experience at Axilleon Cakes.

   (c)The Galanos reference closely resembled a reference prepared by Mr [X] for Axilleon Cakes ([X] reference).

   (d)Mr [X] had made admissions to providing references containing false representations that visa applicants had performed over 900 hours of work for Axilleon cakes.

   (e)The Tribunal found at [48] that Ms Galanos had prepared the reference herself. In making the finding at [48], the Tribunal relied on two findings that did not have a logical and probative basis.

   (f)First, the Tribunal found that it was impossible for Ms Galanos to have an electronic copy of [X]’s letterhead or reference in December 2007.

   (i)Mr [X] admitted that he might have e-mailed the letterhead or a reference to Ms Galanos. Mr [X] was uncertain when he sent the e-mail; it may have been in the beginning of 2009.

   (ii)The Tribunal had no basis for the finding that it was not possible that Ms Galanos had an electronic copy of the reference in December 2007.

   (g)The Tribunal found that it was highly relevant that, at the Tribunal hearing, the Applicant had not personally provided an explanation for why the [X] reference and Galanos references were similar.

   (i)The Applicant’s representative provided an explanation for the similarity between the references.

   (ii)The Tribunal provided no explanation for why the Applicant’s personal failure to provide an explanation was relevant.

   (h)As a result of each of the above findings, or the combined effect of the findings, the Tribunal’s ultimate conclusion that the Applicant did not satisfy Public Interest Criteria 4020 lacked a logical or probative basis.

2. This ground concerns paragraph 48 of the Tribunal’s reasons for decision, which is as follows:

   48.The Tribunal has considered the representative’s post-hearing submissions in relation to these issues but is not persuaded by them for the following reasons:

   Although it was conceded that the [X] letter was likely used by Ms Galanos as a template for the applicant’s work reference, the evidence before the Tribunal, which it accepts, is that Tina Galanos did not ever have access to [X]’s computer or his USB stick that contained the Axilleon Cakes work references.  Further, [X] did not send Ms Galanos a copy of the Axilleon Cakes work reference letterhead until approximately early 2009, more than a year after the applicant’s work reference was allegedly written on 6 December 2007.  Therefore, Ms Galanos could not possibly have merely copied and varied [X]’s electronic version of this document; (emphasis added)

   Although it was pointed out that Ms Galanos had earlier been provided with copies of work references by [X] and may have simply retyped his letterhead and edited the letter itself, the Tribunal considers it highly unlikely that Ms Galanos would have felt it necessary to try to locate, or have been able to locate, and use the same clip art as that used by [X] in his fraudulent work references.  Further, the evidence before the Tribunal, which it accepts, is that Axilleon Cakes produced various cakes, biscuits and pastries.  It has never been suggested in evidence that Axilleon Cakes prepared and served meals.  On that basis, the Tribunal considers it totally implausible that had Ms Galanos manually retyped and edited an [X] fraudulent work reference, she would have referred to the applicant as having “a good pace in preparing meal”, given that Axilleon Cakes did not serve meals;

   Although it was claimed that there are some material and significant differences in the two letters, including that the applicant’s reference uses the letterhead on each page whereas the [X] reference only uses the letterhead on the very first page, the slightly different position of the address in each letter and the fact that one has a subject heading and the other does not, the Tribunal considers these differences to be minor and inconsequential, given that the evidence indicates [X] was involved in a systemic fraud with a number of employers over several years.  In such circumstances, and to escape detection by the Department of Immigration, the Tribunal considers that [X] had good reason to slightly vary his fraudulent work references;

   Contrary to the representative’s submissions, the Tribunal considers it highly relevant that the applicant (rather than her representative) was unable to suggest any possible explanation, when invited to do so at the hearing, as to why a fraudulent [X] work reference, which was seized during the execution of a search warrant at his premises, would be so remarkably similar, and in parts, identical to the applicant’s work reference, given the applicant’s claim that she does not know [X]. (emphasis added)

3. The two findings that the applicants submit the Tribunal made without a logical or probative basis were:

   a)that it was impossible for Ms Galanos to have digital copy of a template of one of Mr [X]’s references prior to 2009; and

   b)that it was highly relevant the applicant could not provide an explanation for the similarities between the references.

4. The leading case on irrationality is Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16, in which Crennan and Bell JJ said at [130]:

   In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. (emphasis added)

5. In paragraph 48 of its reasons for decision, the Tribunal was expressly dealing with why it rejected certain submissions made on the applicants’ behalf.  To some extent, the applicants’ unpersuasive submissions caused the Tribunal in paragraph 48 of its reasons for decision to go off on a tangent.  The basic question the Tribunal was required to and did answer was whether there was no evidence that the applicants had provided a bogus document in connection with their visa applications.  The crux of the Tribunal’s reasoning on this question was at paragraphs 49 to 54 of its reasons for decision, which are as follows:

   49.The Tribunal acknowledges that there is no direct evidence that the applicant’s work reference was manufactured by Mr [X].  However, the Tribunal is satisfied that the information outlined at paragraph 27 establishes a widespread practice amongst international students and their agents to pay for false work references to obtain TRA skills assessments for their visa applications, and that Ms Galanos was willingly and actively involved in producing false work references for international students.

   50.The Tribunal accepts that any similarities between the known false work references from Axilleon Cakes and the work reference letter given to TRA by the applicant is not conclusive but the Tribunal considers that, in light of all of the information before it, any similarities between the references raises real concern as to whether she did complete 900 hours work experience at Axilleon Cakes, as claimed. 

   51.Although the applicant maintained she did complete more than 900 hours’ work experience at Axilleon Cakes, the Tribunal prefers the evidence outlined at paragraph 27, which it considers to be more persuasive in establishing that she did not, in fact, do so.  Having regard to the fact that a remarkably similar, and in parts identical, copy of the Axilleon Cakes work reference the applicant submitted to TRA in support of her skills assessment was found during the execution of a search warrant at [Mr X’s] residential premises, notwithstanding that the applicant had never met or had any dealings with Mr [X], combined with the Tribunal’s other concerns about the applicant’s evidence set out above, the Tribunal is not satisfied the applicant undertook over 900 hours volunteer work experience at Axilleon Cakes during the claimed period.

   52.Accordingly, on the evidence before it, which it considers to be of sufficiently probative value, the Tribunal finds that the work reference letter given to TRA by the applicant contained a false statement to the effect that she had completed more than 900 hours’ work experience as a pastry cook at Axilleon Cakes. 

   53.On that basis, the Tribunal reasonably suspects, and so finds, that the applicant’s TRA skills assessment is a bogus document, as defined in s.5(1), in that it was obtained on the basis of a fraudulently produced or procured work reference from Axilleon Cakes, which contained a false or misleading statement that the applicant had more than 900 hours of work experience as a pastry cook.

   54.Accordingly, the Tribunal is not satisfied that there is no evidence the applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to her application for a Skilled (Provisional) (Class VC) visa. Accordingly, the Tribunal finds that the applicant does not meet the requirements of paragraph 4020(1)(a).

6. In paragraphs 49 and 51 of the Tribunal’s reasons for decision, the Tribunal referred to paragraph 27 of its reasons for decision, which is as follows:

   27.After a brief adjournment, the Tribunal explained the procedure under s.359AA of the Act before putting the following information to the applicants for their comment or response:

   The ‘Agreed Summary of Material Facts’, which is one of the documents in the criminal prosecution of Mr [X], indicates that the period when you claim to have undertaken work experience at Axilleon Cakes coincides, in part, with the period when Mr [X] was engaged in his fraudulent activities;

   In his April 2011 statement to the Australian Federal Police, Mr [X] stated that from his recollection none of the students completed the full 900 hours’ work experience with any employer mentioned in the statement.  He knew this through his observations during visits to the business premises (which were sometimes weekly and other times maybe once every two weeks);

   He further stated that ‘all the employers knew that the students weren’t going to complete the full 900 hours, as the students had already paid for the work reference prior to commencing any voluntary work experience:  “I had an agreement with all the employers that they would verify false employment claims if TRA or DIAC checked”;

   He further stated that none of the mentioned businesses ….had an original letterhead (except for 2 unnamed male business owners).  He stated that he had permission to create the letterheads and manufacture false work reference letters … from all the other business owners… He created the business letterheads by obtaining the contact details they would provide him… He would then use his laptop to design the logos in clip art or scan the business card to manufacture the false documents;

   In an unsigned and undated statement from Mr [X] regarding the nature of his dealings with Ms Tina Galanos, which was prepared for the purposes of a separate legal matter, Mr [X] stated that:

   He believed Ms Galanos was well aware she was providing false information to Trades Recognition Australia and the Department Of Immigration when she verified the work experience of students who had worked at Axilleon Cakes for 900 hours;

   Mr [X] and Ms Galanos agreed he could sign the work references on her behalf on the basis that Mr [X] would provide Ms Galanos with a copy of the work reference;

   They were both aware that the students would not complete 900 hours’ work experience at Axilleon Cakes;

   He forwarded a copy of the Axilleon Cakes work reference letterhead to Tina Galanos by email.  He was not sure if he emailed the letterhead with the full content of the letter in it as well.  He is not sure exactly when he did this, but it may have been approximately in the beginning of 2009. …Tina Galanos did not ever have access to his computer or to his USB stick containing the Axilleon Cakes work references.

   Mr Don Katugampala [the applicants’ previous migration agent] confirmed in evidence today that Mr Gros [the applicants’ migration agent at the time of the Tribunal hearing] did not explicitly state that Ms Galanos had confirmed that you worked at Axilleon Cakes.  Rather, this was a “genuine assumption” he inferred from his discussion with Mr Gros;

   On 26 November 2014 TRA provided the Tribunal with a copy of the Axilleon Cakes reference that you submitted with your skills assessment application;

   Although a copy of your work reference letter was not seized during the execution of a search warrant at Mr [X’s] residential premises, the Department of Immigration made available for comparison purposes a redacted copy of another person’s work reference from Axilleon Cakes which was seized during the execution of the search warrant. 

   The Axilleon Cakes reference you provided to TRA states, in part, that:

   She is a quick learner with great deal of understanding.  Her communication skills while dealing with her work colleagues, customers and suppliers were excellent.  Her quality performance in cooking reflected in compliments given by our customers on many occasions.  From the very beginning of her joining us, she displayed a dedication to learn and performed all aspects of tasks assigned to her to the fullest degree.  She is disciplined and was always on time.  She had a good pace in preparing meals and on busy times she handled the pressure well…

   The redacted copy of another person’s work reference from Axilleon Cakes, which was seized during the execution of the search warrant and was part of the evidence in Mr [X’s] criminal prosecution, is almost identical in parts.  For example, it also states that:

   He is a quick learner with great deal of understanding.  His communication skills while dealing with his work colleagues, customers and suppliers were excellent.  His quality performance in cooking reflected in compliments given by our customers on many occasions.  From the very beginning of his joining us, he displayed a dedication to learn and performed all aspects of tasks assigned to him to the fullest degree.  He is disciplined and was always on time.  He had a good pace in preparing meals and on busy times he handled the pressure well…

1. Paragraphs 27 and 49 to 54 of the Tribunal’s reasons for decision provide ample evidence and reasoning for the Tribunal’s conclusion that it was not satisfied that there was no evidence that the applicants had given a bogus document to the Minister.  In terms of SZMDS, it cannot be said that the decision to which the Tribunal came is one at which no rational or logical decision maker could arrive on the same evidence.  It must also be remembered that, in SZMDS, it was made clear at [130] that:

   Not every lapse in logic will give rise to jurisdictional error.

2. As the applicants themselves observed at paragraph 16 of their written submissions:

   Whether a factual finding is a jurisdictional error depends on the context in which the error occurs and how critical it is to the ultimate decision (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] – [113]).

3. It seems to me that any lapse in logic in the present case, given the context and given that the alleged lapses were not critical to the ultimate decision, did not amount to a jurisdictional error.

4. More particularly, the first challenged finding arose as follows:

   Further, [X] did not send Ms Galanos a copy of the Axilleon Cakes work reference letterhead until approximately early 2009, more than a year after the applicant’s work reference was allegedly written on 6 December 2007.  Therefore, Ms Galanos could not possibly have merely copied and varied [X]’s electronic version of this document;

5. The Tribunal made these statements in response to the applicants’ submission that Ms Galanos had, for legitimate purposes, retyped or reworked for the first applicant a work reference previously provided by Mr X for fraudulent purposes.

6. The Tribunal’s conclusion was based on evidence given by Mr X as follows:

   38.I forwarded a copy of the AXILLEON Cake work reference letterhead to Tina GALANOS by email. I am not sure if I emailed her the letterhead with the full content of the letter in it as well. I am not sure when exactly I did this but it may have been approximately in the beginning of 2009.

7. The applicants’ point was that Mr X only said that he may have sent Ms Galanos a work reference, or perhaps just a letterhead, approximately in the beginning of 2009 but he was not sure of the timing.  The applicants argued that it was irrational for the Tribunal to say, on the basis of that evidence, that:

   Ms Galanos could not possibly have merely copied and varied [X]’s electronic version of this document [on 6 December 2007]

8. The applicants conceded that the Tribunal could, without error, have said that it was unlikely that Ms Galanos had merely copied and varied Mr X’s document on 6 December 2007.  The error, according to the applicants, was that the Tribunal had been unequivocal.

9. In the overall context of this case, the first error alleged by the applicants is a trifle.  It was not critical to the decision ultimately reached by the Tribunal. It does not amount to a jurisdictional error.  The fact is that there was a significant body of evidence that the applicants had provided a bogus document to the Minister.  The Tribunal relied on that evidence.

10. Moreover, it was open to the Tribunal to conclude that Mr X’s statement that he may have provided a letterhead or letter to Ms Galanos in approximately early 2009 meant that he provided the letterhead or letter no earlier than about mid-2008. That is what approximately means. With that reading, the Tribunal’s statement that:

    Ms Galanos could not possibly have merely copied and varied [X]’s electronic version of this document [on 6 December 2007]

    is entirely rational.

11. The second challenged finding was that:

    the Tribunal considers it highly relevant that the applicant (rather than her representative) was unable to suggest any possible explanation, when invited to do so at the hearing, as to why a fraudulent [X] work reference, which was seized during the execution of a search warrant at his premises, would be so remarkably similar, and in parts, identical to the applicant’s work reference, given the applicant’s claim that she does not know [X].

12. On the proper construction of the second challenged finding, the Tribunal drew a distinction between the first applicant’s inability to explain why a reference remarkably similar to hers was found at Mr X’s premises and her representative’s attempt to explain that circumstance. The Tribunal was correct to say that the first applicant, as opposed to her representative, was unable to explain why a remarkably similar reference to hers was found in Mr X’s premises.

13. The Tribunal rejected the representative’s explanations for the reasons the Tribunal expressed earlier in paragraph 48 of its reasons for decision. Those reasons were open to the Tribunal in the sense of being sufficiently rational. That meant that there was no satisfactory explanation for a remarkably similar reference to the first applicant’s reference being found in Mr X’s premises.

14. The Tribunal could fairly have characterised as highly relevant the circumstance that there was no satisfactory explanation for a remarkably similar reference to the first applicant’s reference being found in Mr X’s premises. That is, the Tribunal could reasonably and rationally have said:

    The Tribunal considers it highly relevant that the applicant and her representative were unable to suggest any satisfactory explanation for a reference remarkably similar to the first applicant’s being found in Mr X’s premises.

15. In the circumstances, the applicants’ dispute with the second challenged finding is based on an eye keenly attuned to the perception of error[2]. The Tribunal could have expressed its point a little differently, but the basic thinking is sound nevertheless.

    [2]     Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271; (1996) 41 ALD 1; (1996) 136 ALR 481; (1996) 70 ALJR 568; [1996] 9 Leg Rep 2; [1996] HCA 6

16. In any event, in the overall context of this case, I do not consider that the Tribunal’s lapse into irrationality, if any, in relation to the second challenged finding was so critical to the ultimate decision made by the Tribunal that it could be said to amount to jurisdictional error.

17. It must be remembered that the question for the Tribunal was whether there was no evidence that the applicants had provided a bogus document to the Minister.  As stated above, in the present case, there was a significant body of such evidence.

18. Ground 1 is not made out.

Ground 2

1. The second ground of review in the application filed on 8 February 2016 and amended on 7 March 2018 is:

   The Tribunal’s decision on 8 January 2016 is affected by jurisdictional error because the Applicant was denied procedural fairness due to the breach of s.362A of the Migration Act 1958 (Cth) (the Act) in response to the Applicant’s request for written material dated 5 August 2015.

   Particulars

   (a)Under s.362A of the Act the Applicant is entitled to access written material that has been given or produced to the Tribunal for the purposes of review. That entitlement is subject to the Privacy Act 1988.

   (b)On 8 June 2015 the Applicant made a request pursuant to s.362A for written material before the Tribunal.

   (c)On 30 June 2015 the Applicant received a letter from a Tribunal officer stating Folio 155 – 148 and 139 – 129 on Tribunal file 1300716 (excluded documents) would not be released on the grounds that the excluded documents contained personal information and Australian Privacy Principle 6 did not permit disclosure.

   (d)On 5 August 2015, the Applicant’s representative sent an email to the Tribunal registry requesting copies of the excluded documents with sensitive information excluded or a description of the documents.

   (e)On 6 August 2015 the Tribunal registry responded by e-mail and advised the Applicant’s representative that Australian Privacy Principle 6 also prohibited “any description of what the documents may entail”.

   (f)The Australian Privacy Principle 6 does not prohibit the disclosure of a general description of documents. It only prohibits the disclosure of “personal information” within the meaning of section 6 of the Privacy Act. The response by the officer of the Tribunal on 6 April 2015 revealed a misunderstanding of the Privacy Act.

   (g)The Applicant’s e-mail on 5 August 2015 constituted a further request for documents pursuant to s.362A.

   (h)Due to the misconstruction of the Privacy Act, the Applicant’s request on 5 August 2015 was not properly assessed according to law and as a result, material to which the Applicant may have been entitled may not have been disclosed under s.362A.

2. Section 362A of the Migration Act 1958 (“the Act”) states:

   (1)  Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.

   (2)This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information.

   (3)This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1).

3. It was common ground that, in response to a request under s.362A of the Act made on behalf of the applicants on 8 June 2015, the Tribunal:

   a)had provided some documents in full;

   b)had provided some documents with portions redacted; and

   c)had refused access to some documents in their entirety.

4. Ground 2 concerns the applicants’ request on 5 August 2015 in relation to the documents that the Tribunal had refused to provide in their entirety.  In relation to the documents that the Tribunal had refused to provide in their entirety, the applicants asked:

   a)that the Tribunal provide the documents after deleting any sensitive information; or, in the alternative

   b)that the Tribunal provide a description of the documents.  

5. That request was contained in an email sent on 5 August 2015 by the applicant’s barrister and migration agent to the Tribunal. The email said, in part:

   I was provided with copies of documents not previously provided on a disc which I have in my possession. The accompanying letter dated the 30^th of June 2015 sets out which of the document[s] were partially and which fully excluded.

   I ask that if at all possible you provide me with the fully excluded documents once you delete any sensitive information or in the alternative if that is not practicable, kindly provide me with a description of each page or document such as nature of the general content of the document as much as possible including the date of creation of the document without breaching the provisions of the Privacy Act.

6. The Tribunal responded to the applicants’ email on 6 August 2015 saying:

   As per the decision to provide you with partial access states, the delegate has found that the tribunal is not satisfied that disclosure of these folios is permitted under APP 6. This also covers any a (sic) description of what the documents may entail.

7. The applicants conceded that, under s.362A of the Act, the Tribunal was not required to give descriptions of documents. That is correct. That means that the Tribunal did not have to comply with the request summarised in paragraph 39(b) above pursuant to s.362A of the Act and there was no jurisdictional error in the Tribunal not doing so. There could conceivably have been some other error in the Tribunal not disclosing information under s.359A of the Act, for example, but that was not alleged so I take that issue no further.

8. The request summarised in paragraph 39(a) above is unusual. The Tribunal had already provided some documents with redactions. The fact that the Tribunal provided some documents with redactions is evidence that the Tribunal was aware that such a course was open to it. In the absence of any evidence to the contrary, it can only be concluded that the Tribunal correctly considered that it could not provide certain documents in their entirety because no redactions in those documents would be consistent with Privacy Principle 6 of Schedule 1 of the Privacy Act 1988 (“Privacy Principle 6”). To ask the Tribunal to provide those documents with redactions, when the Tribunal had obviously concluded that it could not do so, was very optimistic.

9. Nevertheless, the applicants submitted that the Tribunal made a jurisdictional error by giving an incorrectly broad interpretation to Privacy Principle 6, in that Privacy Principle 6 did not prevent the provision of a description of the documents. However, as the applicants conceded, the Tribunal was not obliged by s.362A of the Act to give a description of the documents. Therefore, even if the Tribunal misunderstood the breadth of Privacy Principle 6, the Tribunal was not obliged to give the applicants a description of the documents and there was no jurisdictional error in the Tribunal not doing so.

10. If the applicants’ argument was that, by misunderstanding that Privacy Principle 6 did not prevent it from giving a description of the documents, the Tribunal demonstrated that it misunderstood Privacy Principal 6 in some other way, and might therefore have denied access to documents that were not covered by Privacy Principle 6, then the argument was speculative. The applicants did not ask the court to look at the documents that the Tribunal did not provide. There is no basis for the court to conclude that there was any jurisdictional error in this regard.

11. Ground 2 is not made out.

Ground 3

1. The third ground of review in the application filed on 8 February 2016 and amended on 7 March 2018 is:

   The Tribunal’s decision on 8 January 2016 is affected by jurisdictional error because the Applicant was denied procedural fairness due to the breach of s.362A of the Act in response to the Applicant’s request for written material dated 8 June 2015.

   Particulars

   (a)The Applicant relies on particulars (a) – (f) of ground 2.

   (b)The reasons for refusing the Applicant’s access to the documents in accordance with her request dated 8 June 2015 were contained in the letter from the Tribunal officer dated 30 June 2015 and email from the Tribunal registry dated 6 August 2015.

   (c)Due to the misconstruction of the Privacy Act, the Applicant’s request on 8 June 2015 was not properly assessed according to law and as a result, material to which the Applicant may have been entitled may not have been disclosed under s.362A.

2. This ground concerns the request for documents made on 8 June 2015.  For the reasons discussed above, the applicants have not demonstrated that the Tribunal made a jurisdictional error in its response to that request.  This ground is not made out.

Conclusion

1. As none of the applicants’ grounds has been made out, the application must be dismissed with costs.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 18 April 2018