Josan v Minister for Immigration
[2016] FCCA 493
•11 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOSAN v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 493 |
| Catchwords: COSTS – Applicant successful in proceedings – amended application filed with substantially altered grounds and relief sought – whether the first respondent should pay costs only after the filing of the amended application. |
| Legislation: Constitution (Cth), s.75(v) Federal Circuit Court of Australia Act 1999 (Cth), s.16 Migration Act 1958 (Cth), ss.97(c), 357A(3) 359A, 359A(1), 360, 362A, 362A(1), 362A(2), 363(3), 375A, 430 Migration Regulations 1994 (Cth), cls.886.211(b) of sch.2, 886.212 of sch.2, 886.223 of sch.2, 886.225 of sch.2, 4020 of sch.4 |
| Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564 Applicant WAEE V Minister For Immigration And Multicultural And Indigenous Affairs (2003) 75 ALD 630 Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 20 CGU Insurance Ltd v Blakeley [2016] HCA 2 Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 Kim v Minister for Immigration and Citizenship & Anor (2008) 167 FCR 578 Kirwan v Cresvale Far East Ltd (in liq.) & Ors (2002) 44 ACSR 21 Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525 Minister for Immigration and Border Protection v MZYTS & Anor (2013) 230 FCR 431 Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZRKT & Anor (2013) 212 FCR 99 Minister for Immigration and Multicultural Affairs & Anor v Ozmanian (1996) 71 FCR 1 Plaintiff M61/2010E V Commonwealth of Australia & Ors (2010) 243 CLR 319 Prodduturi v Minister for Immigration and Border Protection & Anor (2015) 144 ALD 243 Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1992) 178 CLR 379 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 Sandhu v Minister for Immigration and Border Protection [2015] FCA 987 |
| Applicant: | HARVINDER SINGH JOSAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1291 of 2014 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 16 December 2015 |
| Date of Last Submission: | 12 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 11 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr A Aleksov |
| Solicitors for the Applicant: | Da Gama Pereira & Associates |
| Counsel for the First Respondent: | Mr T Smyth |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice. |
ORDERS
THE COURT DECLARES THAT:
In the events and circumstances which have happened the Second Respondent, the Migration Review Tribunal (now the Administrative Appeals Tribunal), erred in finding that the Applicant, Harvinder Singh Josan, had breached Public Interest Criterion 4020, having made that finding as a result of a failure to observe the requirements of procedural fairness.
THE COURT ORDERS THAT:
The First Respondent pay the Applicant’s costs and disbursements of the proceeding from 29 April 2015, and the Court filing fee of the Application as originally filed.
The Application be otherwise dismissed as the decision of the Second Respondent is supportable on another ground, such that the decision is not set aside.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1291 of 2014
| HARVINDER SINGH JOSAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in the present proceeding is a national of India who was born on 24 May 1981 and first travelled to Australia at the age of 25 years in August 2006 as the holder of a Subclass 572 (Student) visa.
After obtaining a Certificate III in Food Processing (Retail Baking) and a Diploma in Business Management from Della International College, he applied on 24 February 2009, on the basis that he had the skills for his nominated occupation of pastry cook, to the Department of Immigration for a Skilled (Residence) (Class VB) Subclass 886 (Skilled – Sponsored) visa.
In order to be granted a Subclass 886 visa the Applicant had to apply for an assessment of his skills as a pastry cook by the relevant assessing authority which was, in this instance, Trades Recognition Australia (TRA) so as to satisfy the requirement of reg.886.212 of Sch.2 to the Migration Regulations 1994 (Cth) (Migration Regulations). This assessment of the Applicant as a pastry cook was necessary to satisfy the criteria in cl.886.223 that his skills had been assessed by the relevant assessing authority as suitable for the Applicant’s nominated skilled occupation.
Further, by cl.886.225 the Applicant had to satisfy Public Interest Criteria 4020 (PIC 4020), as referred to in [8] and [9] below.
TRA utilised Uniform Assessment Criteria (UAC) in considering an application for assessment of training and work experience and by cl.12 of the UAC applicants had to provide evidence to TRA of relevant and directly related work experience equalling not less than 900 hours.
In order to satisfy TRA that he had worked the required 900 hours, the Applicant provided an undated work reference letter from O’Heas Bakery & Deli (O’Heas Bakery), located in Coburg, Victoria, signed by one Dominic Arena (O’Heas Letter), stating that the Applicant had been employed as a pastry cook there from 8 February 2007 to 10 February 2008 and had completed more than 920 hours of work as a Pastry Cook.
Apparently there was initially some problem in TRA verifying with Mr Arena the statements in the O’Heas Letter and a further letter from Mr Arena dated 22 August 2008 (Confirmatory Letter) was submitted to TRA confirming the correctness of the statements in the earlier undated O’Heas Letter.
Decision of Delegate of Minister
The Delegate of the First Respondent, the Minister for Immigration and Border Protection (Minister), by a decision dated 21 February 2013, refused the Applicant’s visa application dated 24 February 2009 on the basis that the Applicant had obtained a satisfactory skills assessment from TRA by reason of the O’Heas Letter and Confirmatory Letter, which contained false or misleading information, incorrectly asserting that the Applicant had been employed for 900 hours with O’Heas Bakery. The Delegate also found that one or other of the O’Heas Letter or Confirmatory Letter was a bogus document as defined by the then s.97(c) of the Migration Act 1958 (Cth) (Migration Act). This meant that the Applicant had failed to satisfy PIC 4020(1) as required by cl.886.225 of the Migration Regulations which relevantly required that there be no evidence before the Minister that the Applicant had given or caused to be given to a relevant assessing authority a bogus document or information that was false or misleading in a material particular in relation to the relevant application for the visa. The Delegate also found that the Applicant had not been employed for 900 hours with O’Heas Bakery. The Delegate rejected the Applicant’s evidence as self-serving and false.
It is convenient at this point to set out the text of PIC 4020(1), (2) and (4), which are as follows:
PIC 4020(1)
There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a Part 5-reviewable decision, 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.
PIC 4020(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 to grant the visa;
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).
PIC 4020(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.
The Delegate’s finding that the O’Heas Letter and Confirmatory Letter contained false or misleading information was based on evidence that on 4 November 2011 a Mr Carmine Amarante had pleaded guilty to the manufacture and sale of work references from O’Heas Bakery, and had admitted that the documents were fraudulent in content and that they were created in order to assist clients to apply for permanent residency in Australia. The Delegate found that the O’Heas Letter or Confirmatory Letter submitted to TRA were comparable to one of those manufactured by Mr Amarante.
Application for Review to the Migration Review Tribunal
By Application for Review to the Migration Review Tribunal (Tribunal) dated 6 March 2013 the Applicant sought review of the decision of the Delegate.
On or about the same date the Applicant under s.362A of the Migration Act made a request for copies of “All Documents Held By The Tribunal” in connection with the conduct of the review. By a Summons to Produce Documents dated 19 February 2014 the Tribunal, pursuant to s.363(3) of the Migration Act, required the Secretary of the Minister’s Department to produce to it documents described in the Summons as follows:
“The Tribunal is specifically requesting information that may link the applicant, Mr Harvinder Singh Josan (DOB: 24/5/1981) to the Amarante investigations, including:
extracts of warrant information for the applicant;
summary of tape record of interview;
AFP employer statement; and
any other information that may link the applicant to Mr Carmine Amarante.
Please also provide any non-disclosure certificates that may be relevant.
The information currently available to the Tribunal includes:
Reference letters from O’Heas Bakery and signed by Mr Dominic Arena;
and
Timesheets for his work as a pastry cook at O’Heas Bakery.”
On 17 February 2014 a delegate of the Minister gave a certificate under s.375A of the Migration Act (375A Certificate). Section 375A is as follows:
Certain information only to be disclosed to Tribunal
(1) This section applies to a document or information if the Minister:
(a) has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and
(b) has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.
(2) If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:
(a) the Secretary must notify the Tribunal in writing that this section applies to the document or information; and
(b) the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.
The 375A Certificate dated 17 February 2014 states:
I certify that, in accordance with s 375A of the Migration Act 1958, the disclosure, otherwise than to the Migration Review Tribunal of any matter or information contained in electronic files AFP Employer Statement AMARANTE Carmine – MRT.pdf, Amarante – Summary of Facts – MRT.pdf and Amarante – Summary of Taped Record of Interview – MRT.pdf would be contrary to the public interest because:
(a) the electronic files AFP Employer Statement Amarante Carmine – MRT.pdf, Amarante – Summary of Facts – MRT.pdf and Amarante – Summary of Taped Record of Interview – MRT.pdf contain third party details not relevant to this particular merits review.
As s 375A applies to the documents/information identified above, the MRT must do all things necessary to ensure that the document or third party information is not disclosed to any other person other than to a member of the MRT as constituted for the purposes of this particular review, pursuant to s 375A(2)(b) of the Migration Act 1958.
The hearing before the Tribunal took place on 7 April 2014. Prior to that, by an email of 3 April 2014, the Applicant’s solicitor Mr Gunn pointed out that in the event that the Applicant was found to have provided a bogus document or information that was false or misleading in a material particular, PIC 4020 could be waived if the Minister was satisfied that there were compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affected the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen justifying the granting of the relevant visa.
It can be assumed that, having regard to the 375A Certificate, neither prior to nor at the hearing before the Tribunal were copies of the documents comprised in the electronic files described in and subject to the 375A Certificate given to the Applicant.
However, two days after the hearing before the Tribunal, the Tribunal gave to the Applicant by letter dated 9 April 2014 particulars as required by s.359A of the Migration Act (359A Letter) of information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review and inviting comment or response by the Applicant thereto. The Tribunal is required to and entitled to give particulars of such information, even though otherwise being subject to a 375A Certificate, in accordance with the decision of Wilcox J in Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 20 who did not follow the earlier decision of Dowsett J in Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686. Dowsett J had held in Davis (supra) that the obligation to maintain secrecy imposed on the Tribunal by s.357A was so specific that the obligation imposed by s.359A to give particulars had to give way to it.
It would seem from the face of the 359A Letter that the particulars given therein must have come from the electronic files the subject of the 375A Certificate. The 359A Letter gave, amongst others, particulars indicating that an extract from a spreadsheet listing the evidence found during the execution of a search warrant on Mr Amarante’s premises indicated that a document with the Applicant’s name and date of birth and employer identified as O’Heas Bakery had been located and was the letter or was in the same form as the Confirmatory Letter given on behalf of the Applicant to TRA.
A response to the 359A Letter was given by the Applicant’s lawyers by a letter dated 23 April 2014.
The Tribunal’s decision was then given on 2 June 2014. The Tribunal affirmed the decision of the Delegate not to grant the Applicant a Skilled (Residence) (Class VB) visa on the following grounds:
a)The Confirmatory Letter was a bogus document and was reasonably suspected to be counterfeit for the purposes of s.97 of the Migration Act so that the Applicant did not satisfy PIC 4020(1)(a);
b)The Tribunal was not satisfied that there were any circumstances that led to the waiver, pursuant to sub-paragraph (4) of PIC 4020, of either of sub-paragraphs (1) or (2) of PIC 4020; and
c)The business management qualifications obtained by the Applicant were not “closely related” to the occupation of a pastry cook and the applicant did not thereby meet the requirements of cl.886.211(b) of sch.2 to the Migration Regulations. This was a ground not relied on by the Delegate.
Accordingly, as indicated above, the Tribunal affirmed the Delegate’s refusal decision.
Present Proceeding before the Court
By application in this Court filed on 30 June 2014 the Applicant sought that the decision of the Tribunal dated 2 June 2014 be quashed and that a writ of mandamus should be directed to the Tribunal requiring it to determine the Applicant’s application according to law. However, by an Amended Application filed on 15 April 2015, the application for an order quashing and for mandamus were no longer sought and the orders now sought are only for the declaratory relief to be discussed below. The reason for this change is that the Applicant does not now seek any relief in respect of the actual decision of the Tribunal to refuse the visa because he accepts that the Tribunal made lawful findings that the Applicant did not satisfy the “closely related” criterion applicable to his visa application, irrespective of any conclusion concerning his claim of procedural unfairness considered below, and that constitutes an independent basis for supporting the Tribunal’s decision.
Rather, the Applicant now confines the relief he seeks to declaratory relief with respect to the findings of the Tribunal that the Applicant did not satisfy PIC 4020, similar to the declaratory relief granted by the Full Court of the Federal Court in Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525.
Minister for Immigration v Dhillon
The facts in Dhillon (supra) in a number of respects are similar to the facts in the current proceeding and were again connected with the criminal activities of Mr Amarante. Mr Dhillon himself was a pastry cook whose application for a Skilled (Residence) Class VB sub-class 886 visa had been rejected by a Delegate on the basis that Mr Dhillon did not satisfy PIC 4020 and therefore had not satisfied cl.886.225 of sch.2 to the Migration Regulations. The Tribunal again had access to redacted material and information that had not been provided to Mr Dhillon.
The factual similarities of Dhillon to the present proceeding can be sufficiently exposed by what the Full Court of the Federal Court said in [4]-[5]:
4. … Public Interest Criterion 4020 required that an applicant for a visa not give, or cause to be given, a bogus document (defined by s 97 of the Migration Act 1958 (Cth)), or information that is false or misleading in a material particular to (among others) the Minister, an officer of the Department or the Tribunal. A Ms Tina Galanos had given Mr Dhillon a reference letter, upon which he relied in his visa application, stating that he had completed more than 900 hours work as a pastry cook from 5 February 2007 to 13 February 2008 at Axilleon Cakes. Ms Galanos was the manager and owner of Axilleon Cakes. The Department, and subsequently the Tribunal, however, had information in the redacted material, to which Mr Dhillon had not been given access, suggesting that the reference letter from Ms Galanos was a bogus document and contained false or misleading statements upon which Mr Dhillon’s visa application depended. That information was based in part upon the result of investigations into a Mr Carmine Amarante and Ms Galanos in the course of which a search warrant was executed under s 3E of the Crimes Act 1914 (Cth). The redacted material included two statements which had been made by Mr Amarante and an agreed summary of facts in which he had agreed to various facts for the purposes of a criminal proceeding against him in the County Court of Victoria. One of the statements had been made by Mr Amarante in the course of the investigation into his involvement in creating false documents of the kind relied upon by Mr Dhillon; the other had been made by him in the course of the prosecution of Ms Galanos for her involvement in providing false statements of the kind given by her to Mr Dhillon.
5. The redacted material did not specifically identify Mr Dhillon as a person to whom a false reference letter had been given by Ms Galanos, but the redacted material contained information which challenged the truthfulness of the facts asserted in her reference letter for Mr Dhillon, and also, of course, raised doubt about the truthfulness and honesty of his claim of having completed 900 hours’ work with Axilleon Cakes. Mr Amarante had admitted to his own involvement in the production of hundreds of fraudulent documents, including work reference letters for Axilleon Cakes, for use by students to obtain permanent residence in Australia. He claimed that money had been obtained for the references and that employers (including Ms Galanos) knew them to be false. The statement Mr Amarante had made in relation to the investigation into him had said:
23. Employers would sometimes ask “Do I have to keep them on for the whole 900 hours? “ I said “put them in here until they’re confident enough and they may not have to do the full 900 hours, it’s up to you“. They would normally say “yeah, no problems“. I told them that TRA or DIAC may contact them and ask if the students had completed 900 hours. I said “You need to say that the student has completed their 900 hours work experience“.
However, the information in the agreed summary of facts tendered in the County Court proceedings against Mr Amarante expressed a potentially important qualification to what he had said in his statement. One of the agreed facts in the summary tendered in the County Court proceedings was:
He [Mr Amarante] would always push the students to do some training however, he had no way of knowing whether they actually completed the training. Some of the students did not even go in [to the employers] as they were too busy (emphasis added).
I refer hereafter in this judgment to the underlined paragraph above as the “Qualifying Fact”.
In Dhillon the Full Court regarded the Qualifying Fact as of great significance. It held that it tempered the force of Mr Amarante’s statement he had previously given that all claims by students of having completed 900 hours were false because of the qualification that Mr Amarante did not know, and had no way of knowing, whether the students had actually worked the 900 hours they claimed to have worked. In particular, at [15] of the judgment in Dhillon, the Full Court said:
15. … The information in the redacted material was material and relevant to the Tribunal’s decision against Mr Dhillon on the Public Interest Criterion. The qualification to Mr Amarante’s statement in the agreed summary of facts bore relevantly and probatively upon the vital findings that the document relied upon by Mr Dhillon was bogus and that he ought not to be believed. It was also relevant and probative to forensic decisions that might have been made about the conduct of the proceeding before the Tribunal, including whether to persuade the Tribunal to subpoena either Ms Galanos or Mr Amarante. …
However, there was no reference to the Qualifying Fact in the s.359A Letter giving particulars to Mr Dhillon. Further, the written material held by the tribunal, to which Mr Dhillon had sought access under s.362A, had redacted the Qualifying Fact.
It was found in Dhillon that the Tribunal’s denial to Mr Dhillon of access to the redacted material including the Qualifying Fact was legally wrong and, therefore, the Tribunal had decided adversely to Mr Dhillon in respect of the PIC 4020 issue, not giving him a fair hearing because it had not acted in a way that was “fair and just” for the purposes of s.357A(3) by breaching the obligation in s.362A(1), whereunder an applicant is 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 review. It was not suggested by the First Respondent that Dhillon was wrong and I am obviously bound to follow it, notwithstanding that the facts in this case appear to be more damning for the Applicant in that here there were documents specifically identifying him found at Mr Amarante’s premises, and a form of the Confirmatory Letter was seized there and such was not the case in Dhillon.
Likewise, in the present proceeding and similarly to Dhillon, the Qualifying Fact was not disclosed to the Applicant although it was before the Tribunal. By a Response, filed 23 November 2015 to a Notice to Admit Facts filed 19 November 2015, the Minister formally admitted the following:
That the documents referred in the certificate under s.375A of the Migration Act 1958 (Cth), relevant to the review by the Migration Review Tribunal in this case (MRT Case No.1303466; DIBP ref. BCC 2009/95410) (at CB 233) included the following information, or information to the following effect:
“Mr Amarante would always push students to do some training, however, he had no way of knowing whether they actually completed the training.”
In Dhillon the Full Court was hearing the Minister’s appeal from the decision of the Federal Circuit Court of Australia (FCCA) quashing the decision of the Tribunal on the ground that Mr Dhillon had been denied procedural fairness because he had not been given the redacted material which had been available to both the Delegate and the Tribunal in finding that he had not satisfied PIC 4020. The Full Court agreed with that aspect of the FCCA’s decision below, but held that the appeal from the FCCA had to be allowed because the decision of the Tribunal ought to have been affirmed on the “closely related” ground, irrespective of any conclusion concerning a claim of breach of procedural fairness. Accordingly, in the result the Full Court allowed the appeal and set aside the orders of the FCCA and ordered in lieu thereof that the decision of the Tribunal be affirmed. However, the Full Court also made the following declaratory order in favour of Mr Dhillon, namely:
For the avoidance of doubt it is declared that the Migration Review Tribunal erred in finding that the first respondent had breached Public Interest Criterion 4020, having made that finding in breach of his entitlement to access the redacted information to which he was entitled pursuant to his request made under s.362A.
It is declaratory relief of this nature that the Applicant seeks for himself in this proceeding.
I note at this point that the Full Court in Dhillon appears to have regarded the practical utility of the making of the declaration as based upon the following factors stated in [15] of the judgment as follows:
The conclusion that the decision of the Tribunal on the Public Interest Criterion was erroneous because of the failure to provide the redacted material under s 362A is also of practical significance to Mr Dhillon and the outcome of any future visa application he may make. The finding of Mr Dhillon having given, or caused to be given, a bogus document or false information precludes him under Public Interest Criterion 4020 from being granted a visa for a period of three years unless justified by “compelling circumstances”: see Vyas v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 281 FLR 247; Kandel v Minister for Immigration and Border Protection [2014] FCCA 1479. The Tribunal’s decision to the extent that it is based on acceptance of a failure to meet the Public Interest Criterion should not be affirmed if made in breach of s 362A in circumstances where access to the redacted material might, as was the case here, reasonably have affected the decision of the Tribunal on that ground.
Logan J in Sandhu v Minister for Immigration and Border Protection [2015] FCA 987 (a case I further refer to below) was also of the view that this was the motivation of the Full Court in Dhillon in granting declaratory relief: see [40] of Sandhu (supra).
Applicability of Dhillon to the Present Proceeding
In Dhillon the Tribunal’s denial of access to the redacted material, including the Qualifying Fact, was based upon its conclusion that access was not permitted or authorised by s.362A because of the qualification relating to the Privacy Act 1988 (Cth) found in s.362A(2). The Tribunal’s basis for denial by reason of subsection 362A(2) was found by the Full Court to be wrong.
However, in this proceeding, the First Respondent submits that s.362A is subject to s.375A and that the Applicant is not entitled to complain as a matter of procedural fairness that he was not told of the Qualifying Fact because his entitlement to any written material given or produced to the Tribunal for the purposes of the review is subject to the 375A Certificate and was negated by the terms of the 375A Certificate.
The first point this argument raises is the proper construction of the 375A Certificate. It is trite law that a document or instrument such as, in this case, the 375A Certificate, must be read as a whole: see Re Media, Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1992) 178 CLR 379 at 386-387.
As Rix LJ said in C v D [2012] 1 All E.R. 302 at 317 para.49:
There is a general principle of construction that a document which falls to be construed should be read as a whole and its separate parts should be so construed, if that is possible, as to bring rational sense and consistency to that whole.
Section 375A(1)(a) has application to a document or information if the Minister has certified in writing that “disclosure of any matter contained in the document, or of the information,” would be contrary to the public interest. The 375A Certificate under consideration speaks of “any matter or information contained” in the identified electronic files and says in the first paragraph that their disclosure would be contrary to the public interest. That first paragraph, in general terms, certifies that disclosure (except to the Tribunal), in an all-encompassing and blanket sense of anything at all contained in the electronic files, would be contrary to the public interest.
However, the second paragraph of the 375A Certificate intituled (a) gives the reason for the certification as the fact that the electronic files relating to Carmine Amarante “contained third party details not relevant to this particular merits review”.
Then in the third paragraph of the 375A Certificate the Tribunal is directed to do all things necessary “to ensure that the document or third party information is not disclosed to any person other than to a member of the MRT as constituted for the purposes of this particular review …”.
In my view the most reasonable construction of the 375A Certificate is that no document comprised within the electronic files is to be disclosed to any person, including the applicant, nor is any information relating to third parties to be likewise disclosed, but that disclosure of information relating to the Applicant in connection with Mr Amarante is not prohibited from disclosure. In other words, in my view the second and third paragraphs of the 375A Certificate qualify and confine the general blanket terms of the first paragraph such as to not prohibit the disclosure to the Applicant of the Qualifying Fact. The combined effect of the second and third paragraphs and their express, particular and specific reference to “third party information” implies the exclusion or limitation of the operation of the more general terms of the first paragraph.
If this construction is correct, then under s.362A the Qualifying Fact ought to have been made known to the Applicant, having regard to the importance placed on upon the Qualifying Fact by the Full Court in Dhillon, and disclosure by the Tribunal to the Applicant was not precluded by the 375A Certificate.
Nevertheless, in any event, whether that construction of the s.375A Certificate is right or wrong, the decision of Wilcox J in Burton (supra) is that whilst s.362A is subject to s.375A, s.359A(1) is not affected by s.375A and even if a valid 375A Certificate is issued, an applicant is still nonetheless entitled to particulars under s.359A(1).
This indeed seems to have been the view taken by the writer of the 359A Letter in this case because it is specifically stated on the first page of that document, in the prefatory words, that “The particulars of the information are:” and the particulars of the information then follow.
The information given by the 359A Letter is in my view rather more generous and detailed than the type of particulars that Wilcox J decided in Burton (supra) had to be given. However, unfortunately, the problem is that the information said to be given as particulars in the 359A Letter does not include the Qualifying Fact. The omission was no doubt inadvertent and as at 9 April 2014 neither of the judgments of the FCCA on 28 April 2014 or the Full Court in Dhillon had been delivered.
In these circumstances the Applicant submits that he is entitled to a form of declaratory order such as that made in Dhillon. In Dhillon, as indicated above, the Full Court held that the failure of the Tribunal to give and make available the Qualifying Fact meant that the Tribunal had decided PIC 4020 against Mr Dhillon without affording him the fair hearing to which he was entitled under s.360 of the Migration Act. Denial of procedural fairness may result in a decision made in excess of jurisdiction to which s.75(v) of the Constitution (Cth) will respond: see Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332 at 357 ([48]); Re Refugee Review Tribunal & Anor; Ex parte Aala (2000) 204 CLR 82 at 91 ([17]).
Utility of Declaratory Relief
However, the First Respondent submits that the Applicant is disentitled from declaratory relief because there would be no practical utility or purpose in granting the same. It is of course generally the case that a declaration will not be made if it has no practical consequences or there is no real controversy to be determined: see the discussion by Kiefel J in the decision of the Full Court of the Federal Court in Minister for Immigration and Multicultural Affairs & Anor v Ozmanian (1996) 71 FCR 1 at 30-33.
On the other hand, the Applicant asserts that there will be a practical purpose to declaratory relief.
The controversy centres around the preclusionary provision comprising PIC 4020(2), the text of which appears at [9] above.
The Applicant says that in circumstances where he intends, as he has indicated, to apply again for a visa in Australia, the beneficial effect for him of the declaratory relief which he seeks is that it will affect the date from which the Applicant’s PIC 4020(2) exclusion commences, in that it would not commence from the date of the decision of the Tribunal, but only from the date of the decision of the Delegate and this is sufficient to ground declaratory relief. The Applicant says that if declaratory relief is not granted the three year exclusionary period will run from the date of the Tribunal’s decision, being 2 June 2014 until 1 June 2017, when only then will the force of PIC 4020(2) cease to apply.
The Applicant says that if the declaratory relief he seeks is granted, the exclusionary three year period will run from the date of the decision of the Delegate, which was 21 February 2013 and so the force of PIC 4020(2) expires as of 21 February 2016.
On the other hand, the First Respondent says that the three year period runs from the date of the decision of the Delegate, even in circumstances where the Tribunal has affirmed the Delegate’s decision. The First Respondent relies on the following statement of principle of the Full Court of the Federal Court of Australia expressed in the judgment of Tamberlin J in Kim v Minister for Immigration and Citizenship & Anor (2008) 167 FCR 578 at 583 ([23]) which states:
“It is now settled law that an affirmation of a decision of the delegate by the Tribunal has the effect that the decision of the delegate is the original decision which continues to operate and is not substituted by the later decision of the Tribunal: see Yolbir v Administrative Appeals Tribunal (1994) 48 FCR 246 at 249-250.”
Further, the First Respondent relies on the decision of the Full Court of the Federal Court in Prodduturi v Minister for Immigration and Border Protection & Anor (2015) 144 ALD 243. That case also involved a cook who had applied for a Skilled (Provisional Class VC) Subclass 485 visa. That was a visa of a class granted to international students who had recently completed their education in Australia, permitting them to work for a period in Australia.
The decision of the Delegate in Prodduturi (supra) was made on 27 April 2012 and it was found that in his visa application to the Minister, Mr Singh had falsely claimed that TRA had favourably assessed him as a cook, whereas he had never been assessed as a cook by any assessing authority, and was not entitled to the grant of a visa as sought. The Tribunal affirmed the Delegate’s decision and an application for constitutional writs to the Federal Circuit Court of Australia was dismissed.
On appeal to the Full Court of the Federal Court, Mr Singh in fact affirmatively contended and conceded that he was never qualified for the visa for which he had applied. He raised a number of complaints, but his real purpose in the appeal was the setting aside of the Tribunal’s decision, not because he was entitled to a visa, but because he wished to be relieved of the consequences that PIC 4020(2) had for him in any other visa application he might make: that is that any fresh application by the appellant for a visa before 27 April 2015 was liable to be refused by reason of PIC 4020(2) – see [8] of Prodduturi.
In the result the Full Court found that there was no utility in Mr Prodduturi’s appeal. It dealt with this point at [30]-[32] as follows:
30. The appellant’s case in the Federal Circuit Court could not have succeeded in its avowed purpose of bringing to an end the effect that non-compliance with PIC 4020 had on the appellant’s future capacity to apply for visas. The reasons for this are technical but irresistible. The original decision that the appellant had failed to satisfy PIC 4020 was made on 27 April 2012 by the delegate. If the appellant had succeeded in the Court below in setting aside the decision by the Tribunal to affirm that decision on the basis that the Tribunal had no jurisdiction over the matter, this would have left the delegate’s decision in place and, despite his success, the appellant would have remained unable to apply for a visa for three years.
31 . That problem underscored the necessity from the appellant’s perspective to set aside the delegate’s decision of 27 April 2012. The appellant’s amended notice of appeal seeks such an order and does so on the basis that the visa application which had been made was itself invalid.
32 . There are four obstacles for the appellant in taking this course. First, this was not how the case was run at first instance. Secondly, the delegate who made the decision is a necessary party to any application to set aside her decision. Thirdly, the Federal Circuit Court had no jurisdiction to entertain an application to set aside the delegate’s decision. Fourthly, this Court has no such jurisdiction on appeal.
The ultimate conclusions of the Full Court on the utility issue were expressed in paragraphs [36]-[38]:
36. It follows that there are no means by which the decision of the delegate may be set aside in any court but the High Court. That being so, it is apparent that the Minister’s contention that these proceedings lack utility must be accepted. Even assuming the appeal were allowed and this Court set aside the decision of the Tribunal this would leave the appellant still saddled with the decision of the delegate with which this Court simply cannot interfere.
37 . In such a situation:
(a) the Tribunal would remain bound to refuse to grant the visa; and
(b) the appellant would still be unable to apply for a visa for 3 years from 27 April 2012 because of the delegate’s decision.
38 . Consequently, there could be no utility in granting constitutional relief even if the applicant had shown the existence of jurisdictional error. The appropriate course in that circumstance is to refuse relief: SZBYR v Minister for Immigration and Citizenship (2007) 96 ALD 1 at 10 [28]-[29] and 23 [87].
The decision in Prodduturi on the issue of utility is consistent with the statement of principle of the Full Court in Kim referred to in [52] above. In my view, the reference in PIC 4020(2)(b) to “the Minister making a decision to grant or refuse the application” is a reference to the decision of the Delegate and not the Migration Tribunal. In the present case the three year period for the Applicant expired on 21 February 2016.
Consideration of whether the Applicant should be granted declaratory relief
In Dhillon (supra) the decision of the delegate to refuse the application for a visa on the basis that Mr Dhillon did not satisfy PIC 4020 was dated 2 February 2012 (see [17] of the judgment of the primary judge in Dhillon v Minister for Immigration [2014] FCCA 552). Accordingly, on the basis that the preclusion period runs from the decision of the delegate, the three year preclusion period for Mr Dhillon under PIC 4020 was going to expire on 2 February 2015. The judgment of the Full Court in Dhillon granting him declaratory relief was dated 21 November 2014. In Sandhu (supra) the Delegate’s refusal to grant a visa was dated 3 October 2012 and, therefore, the three year preclusion period was to end on 3 October 2015. The decision of Logan J in Sandhu granting declaratory was delivered on 6 August 2015.
However, the declaratory relief granted in each of Dhillon and Sandhu to the effect that the MRT had erred in finding that each of the applicants in those cases had breached PIC 4020 did not affect the persisting effect of the date of the Delegate’s decision in each case as the point from which the three year preclusion period was calculated.
Notwithstanding, during consideration of this matter, after the conclusion of oral argument, it seemed to me arguably implicit in the decisions of Dhillon and Sandhu that the declaratory relief which was granted was fundamentally supported by the general reputational benefit which accrued to the respective applicants by the making of the declarations in circumstances where it had been found that they had been involved in the submission to the Minister of bogus and counterfeit documents. I accordingly invited the parties to make any further submissions on the availability of declaratory relief in this case being supported on reputational and personal grounds, and further submissions were received in that regard.
The Tribunal found that the Confirmatory Letter was a bogus document, reasonably suspected of being counterfeit, and that it was given or caused to be given by the Applicant to an Immigration Officer in relation to his visa application. It seems to me impossible to say that such a finding could not have possible adverse implications for the Applicant in the future. The Applicant has always consistently denied that he has been guilty of any dishonesty and that the Confirmatory Letter was a bogus document.
It is no reason to refuse the making of a declaration because there will be no orders for certiorari and mandamus in this case. That did not preclude the making of a declaration by the High Court in Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564 or in Plaintiff M61/2010E V Commonwealth of Australia & Ors (2010) 243 CLR 319. This Court may award appropriate declaratory relief pursuant to s.16 of the Federal Circuit Court of Australia Act 1999 (Cth) which is in the same terms as the terms as s.21 of the Federal Court of Australia Act 1976 (Cth).
It is clear that courts are able to grant declaratory relief in order to protect a party’s reputation. In Ainsworth v Criminal Justice Commission (supra) 564 at 597, Brennan J said:
Where an official entity, purportedly exercising a statutory power or performing a statutory function which requires it to observe the rules of natural justice, publishes a report damaging to a person's reputation without having given that person an opportunity to be heard on the matter, prima facie that person is entitled to a declaration that the report, so far as it damages his or her reputation, has been produced in breach of the entity's duty to observe the rules of natural justice.
In Kirwan v Cresvale Far East Ltd (in liq.) & Ors (2002) 44 ACSR 21 at 105 Young CJ in Eq. at 105 ([406]-[408]) stated:
If, as a result of an erroneous judicial decision, a person has been prejudiced in a real way, even if the actual decision is not capable of reversal, that person should be entitled to a declaration that, for instance in this case, he has not been guilty of improper conduct.
In Plaintiff M61/2010E v Commonwealth of Australia (supra) the High Court held that a denial of procedural fairness made appropriate a declaration that the process undertaken to arrive at the reviewer’s recommendation was flawed in certain identified respects, even though certiorari and mandamus would not lie. The Court said at [103]:
103. In the circumstances of this litigation it cannot be said that a declaratory order by the court will produce no foreseeable consequences for the parties. Declaratory relief is directed here to determining a legal controversy; it is not directed to answering some abstract or hypothetical question. Each plaintiff has a “real interest” in raising the questions to which the declaration would go. … Moreover, there is a considerable public interest in the observance of the requirements of procedural fairness in the exercise of the relevant powers.
104. Accordingly, each plaintiff should have a declaration moulded in terms similar to the declaration made by this court in Ainsworth.
In CGU Insurance Ltd v Blakeley [2016] HCA 2, French CJ, Kiefel, Bell, Keane and Nettle JJ at [99] said:
Depending upon the circumstances, it is sufficient that the claimant will derive some benefit or advantage from the declaration over or above any benefit or advantage that might be derived by an ordinary citizen.
In the circumstances of this case, I consider that the Applicant is entitled to declaratory relief, similar to that granted in Dhillon and Sandhu, on the grounds, first, that declaratory relief will tend to mitigate any reputational damage the Applicant may suffer by the Tribunal’s decision concerning the bogus document and, second, that in any event I should follow as precedents the like cases and decisions of the Full Court of the Federal Court in Dhillon and of Logan J in Sandhu.
That conclusion is not precluded by the decision of the Full Court of the Federal Court Prodduturi because in that case:
a)There was no claim for declaratory relief as sought in this proceeding;
b)It was conceded that Mr Prodduturi had never been certified as a cook by any assessing authority and had never qualified for or been entitled to the issue of the visa for which he had applied; and
c)It was accepted that the visa application contained false information, although Mr Prodduturi said this was the responsibility of his migration agent rather than himself.
In this case, on the other hand, the Applicant has always asserted that he is truly a qualified pastry cook, was in truth employed for 920 hours by O’Heas Bakery and there was never any bogus or counterfeit documents submitted to the Minister.
Further Argument of Ignoring the Applicant’s Evidence
The Applicant raises a further argument which is conceded to be of a technical nature, but which again, it is accepted by him, does not lead to the quashing of the Tribunal’s decision.
This second argument is, as I understand it, to the effect that the Tribunal committed jurisdictional error in not performing its statutory task because it did not lawfully address and consider the Applicant’s claim in his statutory declaration sworn 9 September 2010 (Statutory Declaration) that he had worked and completed more than 920 hours of work as a Pastry Cook at O’Heas Bakery and that, if this evidence had been considered and accepted, it could have led to the Tribunal exercising the waiver power granted by PIC 4020(4): see the decision of Robertson J in Minister for Immigration and Citizenship v SZRKT & Anor (2013) 212 FCR 99 and the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS & Anor (2013) 230 FCR 431.
This submission requires a consideration of what the Tribunal was in truth considering and its reasons for decision.
The fundamental or ultimate issue before the Tribunal was whether the Applicant met all the criteria for the grant of the visa for which he had applied because s.65 of the Migration Act required that the Minister be satisfied that all relevant criteria prescribed by the Migration Act or the Migration Regulations had been met.
An important sub-question before the Tribunal became whether or not in seeking to obtain an assessment under cl.886.223 from TRA, he had given or caused to be given to TRA in his application for assessment under cl.886.212, a bogus document or information that was false or misleading in a material particular that was in breach of PIC 4020(1).
By the very nature of that bogus document issue the credibility of the Applicant in this connection was in play.
The relevant background relating to this issue was that the visa Application was lodged on 24 February 2009 under cover of a letter from the Applicant’s solicitors dated 19 February 2009 which enclosed a letter from TRA dated 25 September 2008 stating that the Applicant had provided evidence satisfying completion of 900 hours of directly work related experience as set out in cl.12 of UAC. Then, by letter dated 20 January 2012, the Department invited the Applicant to comment on information, relating to Mr Amarante, concerning the possibility that the Applicant had obtained the skills assessment from TRA fraudulently by supplying to TRA documents supporting 900 hours of claimed work experience from O’Heas Bakery.
His solicitors responded by letter dated 15 March 2012 in which it was asserted, among other things, that the Applicant had in truth worked 920 hours at O’Heas Bakery. This letter further advised the Department that TRA had written to the Applicant in November 2010 advising that it was considering revoking his skills assessment on the grounds that it believed that the reference letter submitted by the Applicant from O’Heas Bakery was not genuine and in response to this, amongst other documents, the Applicant had sent to TRA his Statutory Declaration.
The decision of the Delegate was issued on 21 February 2013 and is summarised at [8] and [10] above. The Delegate rejected the Statutory Declaration as self-serving and false.
Then the Applicant’s solicitor by email of 3 April 2014 raised the issues summarised in [15] above.
Then the Tribunal gave to the Applicant the 359A Letter referred to in [17] above which identified in the plainest terms problems with the credibility of the Applicant’s claims to have worked over 900 hours and of his overall credibility as well. The Applicant responded to the 359A Letter by his lawyer’s letter of 23 April 2014 referred to in [19] above.
That letter, in support of a waiver request under PIC 4020(4), contained the following sentence:
“As such, Mr Josan submits, that in the event he is found by the Tribunal to have provided a bogus document or information that is false or misleading in a material particular (which is not admitted), then his charitable work for Pek Care International is a basis upon which to waive the refusal of his visa on that basis.”
In these circumstances, the Applicant was under no doubt that his overall credibility was a major issue at the Tribunal hearing. The reasons for decision of the Tribunal comprise some twelve pages and 61 paragraphs, of which 49 paragraphs deal with the issue of the letters from O’Heas Bakery, possible breach by the Applicant of PIC 4020(1) and possible waiver. There is, in [6]-[19], what appears to me to be a full statement of the events and circumstances forming the background to the matters to be considered at the hearing, including appropriate reference to the O’Heas Letter and the Confirmatory Letter, and the circumstances of how they came to light in connection with the activities of Mr Amarante.
At [18] of its Decision Record the Tribunal noted that the Applicant maintained at the hearing that he had completed the work experience at O’Heas Bakery and it recorded that the Applicant had provided to the Department additional documents supporting that position.
In [20]-[37], the Tribunal considered the claims and evidence. At [24] the Tribunal recorded that the Applicant claimed to have genuinely worked at O’Heas Bakery and that Mr Arena had attended the Tribunal hearing in support of the Applicant’s claims in this regard. It was further noted that the Tribunal had had regard to this submission and had carefully considered and weighed up all the evidence before it.
The Tribunal recorded at [25] that there was information before the Tribunal that a form of the Confirmatory Letter had been found during the execution of a warrant at Mr Amarante’s residence and that an officer of the Department had informed the Tribunal in writing that this letter, so found, was identical to the Confirmatory Letter given to TRA.
At [26] the Tribunal recorded that when this fact was put to the Applicant at the hearing, the Applicant said he did not know and said that he had gone to the shop to see Mr Arena, and Mr Arena had given him the letter. The Applicant told the Tribunal that he had explained to Mr Arena that he needed a letter from him for TRA.
There was further consideration by the Tribunal in the balance of [26] and then in [27]. At [28] the Tribunal recorded that neither the Applicant nor Mr Arena gave convincing evidence as to who typed the Confirmatory Letter and that both the Applicant and Mr Arena were unsure of how the Confirmatory Letter came to be on the USB stick located at Mr Amarante’s premises, and neither party was able to give consistent evidence as to the origin of that letter. It recorded that if the Applicant was to be believed, the Confirmatory Letter came from Mr Arena, but, on the other hand, Mr Arena himself was unable to give convincing evidence of the origin of the letter.
Further, in [28], the Tribunal recorded that in the letter of 23 April 2014 written by the Applicant’s lawyers in response to the 359A Letter, it had been stated that the Applicant did not know Carmine Amarante and had never had any cause to have dealings with him, but that at the Tribunal hearing the Applicant stated that he knew of Mr Amarante because he was a teacher at his college.
In [30], the Tribunal stated that it “has placed greater weight” on the evidence of Mr Amarante that he manufactured the documents located on the USB stick in his premises, which would explain how it came to be located on the USB stick. The use of the comparative phrase “has placed greater weight” is an indication that the Tribunal had compared and weighed the evidence relating to Mr Amarante with the evidence of Mr Arena and the Applicant in connection with the provenance of the Confirmatory Letter and decided to prefer the evidence of Mr Amarante. Then, at [31], the Tribunal, for the reasons there stated, expressed the view that the Confirmatory Letter was a manufactured document and was, in that respect, counterfeit.
The Tribunal stated at [35] that it found that the Applicant had given, or caused to be given to the Minister or an officer, a “bogus document” and the Applicant thus did not satisfy PIC 4020(1)(a).
In [36] the Tribunal noted that, having regard to its finding of the Confirmatory Letter being a bogus document, it did not need to reach any concluded view as to whether the Applicant had in fact worked the 900 hours as claimed. The Tribunal then, however, did go on to state that it did not consider that the Applicant had worked the 900 hours as claimed. In the balance of [36], there is a consideration of the relevant evidence, including the Timesheet, the Applicant’s own Statutory Declaration, as well as statutory declarations from two other parties. The Tribunal noted that the Timesheet was prepared and signed by the Applicant himself and the Tribunal noted that it was unconvinced and placed no weight on that Timesheet which the Applicant had prepared himself in support of his claim to have undertaken 900 hours work experience. The Tribunal noted that it did not regard the two other statutory declarations submitted to it as confirmatory of 900 hours.
Paragraph 36 ends by the Tribunal stating that it “places no weight on the Applicant’s own statutory explanation as to his claimed work experience in the circumstances”.
In this proceeding the Applicant criticises the Tribunal for not expressing any reason for its conclusion not to place any weight on the Applicant’s Statutory Declaration, which in fact merely had simply stated as follows (omitting formal parts):
I worked as a pastry cook at O’Heas Bakery and Deli, 203-205 O’Heas Street, Coburg VIC from 8/2/2007 to 10/02/2008 under the supervision of Mr Dominic Arena. I worked on an unpaid basis and completed more than 920 hours work as a Pastry Cook.
I consider that this criticism of the Tribunal is unfair and unwarranted. The decision of the Tribunal must be read fairly and as a whole without a fine-tooth comb seeking to identify error. As the Full Court of the Federal Court said in Applicant WAEE V Minister For Immigration And Multicultural And Indigenous Affairs (2003) 75 ALD 630 at [46] and [47]:
46. The tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47. The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
In this case, the reasons of the Tribunal disclose a reasoning process involving the engaging with, and consideration, weighing, comparing and evaluating of both the documentary and oral evidence before it. The Tribunal expressly recorded at [24] that the Applicant maintained his claim to have genuinely worked at O’Heas Bakery, and it stated, and there is no reason to think otherwise, that it had carefully considered and weighed up all the evidence before it. It is clear that the Tribunal questioned the Applicant during the hearing on relevant issues. It found in a number of respects that the Applicant had not given convincing evidence. It expressly referred at [36] to considering the Applicant’s Statutory Declaration and other evidence proffered by him at the hearing.
It seems to me that if the last sentence of [36] of the its reasons had been stated or interweaved earlier in its reasons for finding that the Confirmatory Letter was a bogus document, there could be no possible suggestion that it was objectionable for not stating a reason or reasons for rejection of the contents of the Statutory Declaration. In this connection the following passage from the judgment of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 63 is apposite:
Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.
The Tribunal in this case considered the totality of the documentary and oral evidence, including that led on behalf of the Applicant, including his Statutory Declaration, on the issue of 900 hours and whether or not the Confirmatory Letter was a bogus document. It clearly preferred and accepted the documentary evidence connected with Mr Amarante in coming to the view that the Applicant had not worked the 900 hours claimed by him and that the Confirmatory Letter was a bogus document. Having come to these views it was entirely appropriate and sufficient for the Tribunal to record that it placed no independent weight on the Statutory Declaration without ascribing a further separate or independent ground for its rejection of the Statutory Declaration. The rejection of the Statutory Declaration was consistent with and supported by the Tribunal’s rejection of the rest of the Applicant’s case that he had worked 900 hours. Once the Tribunal had found that it did not believe the Applicant on the substance of his case that he had worked 900 hours, there was nothing illogical or unreasonable in the Tribunal rejecting simpliciter the bare assertion in his Statutory Declaration that he had worked more than 920 hours. The rejection of that bare assertion in the last sentence of [36] was a result of the analysis and weighing up of the evidence and findings preceding it.
In my view the Tribunal complied with its obligations under s.430 of the Migration Act to set out its decision, its reasons for the decision, its findings on material questions of fact and the evidence on which the findings of fact were based. The Tribunal’s reasons disclose a process of weighing evidence and preferring some over the other.
Accordingly, there is no reason to infer that the Tribunal overlooked the issues of whether or not the Applicant had worked over 900 hours and the Statutory Declaration. The Tribunal fully considered from [38]-[48] whether or not there were compelling or compassionate circumstances which might satisfy the requirements of PIC 4020(1) or (2) to be waived, and there is no force in the criticism of the Tribunal’s decision in this regard.
Costs
As stated in [22] above, the initial application was filed in this Court on 30 June 2014, and sought that the decision of the Tribunal be quashed as well as a writ of mandamus.
The Amended Application filed on 15 April 2015 abandoned the claim for the relief sought in the original application and substantially abandoned the grounds relied upon in the original application. In these circumstances I do not consider that the Applicant is entitled to any costs of the proceeding prior to the date of filing of the Amended Application on 15 April 2015.
Costs usually follow the event and the result in this case is that the Tribunal decision is not going to be quashed. However, since the filing of the Amended Application the substantive and clearly dominant issue in the case has really been whether or not the Applicant should be granted declaratory relief of the type granted in Dhillon, and on this issue he has been successful.
The matter was mentioned before Judge Turner on 29 April 2015 and adjourned generally to await the success or otherwise of the special leave application to the High Court in Prodduturi. It seems clear that from at least that date the Minister had considered the Amended Application filed on 15 April 2015 and decided to oppose the granting of any declaratory relief in this case.
Accordingly, I am of the view that I ought to order the First Respondent to pay the Applicant’s costs and disbursements of the proceeding as and from 29 April 2015, and the Court filing fee of the application as originally filed.
The declaration and orders of the Court accordingly are as follows:
THE COURT DECLARES THAT:
1. In the events and circumstances which have happened the Second Respondent, the Migration Review Tribunal (now the Administrative Appeals Tribunal), erred in finding that the Applicant, Harvinder Singh Josan, has breached Public Interest Criterion 4020 having made that finding as a result of a failure to observe the requirements of procedural fairness.
THE COURT ORDERS THAT:
2. The First Respondent pay the Applicant’s costs and disbursements of the proceeding from 29 April 2015, and the Court filing fee of the Application as originally filed.
3. The Application be otherwise dismissed as the decision of the Second Respondent is supportable on another ground such that the decision is not set aside.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Associate:
Date: 11 March 2016
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