Josan v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

JOSAN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 493

Catchwords:
MIGRATION – Application for review of decision of Migration Review Tribunal affirming decision of delegate of Minister for Immigration and Border Protection to refuse to grant applicant a Skilled (Residence) visa – Application rejected for failure to meet public interest criterion – decision made with reference to material not provided to applicant – material suggested that applicant’s work reference was a “bogus document” – whether Tribunal required or authorised to refuse applicant’s request for access to material – Whether failure to provide material a breach of procedural fairness – whether declaratory relief should be granted to applicant.

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
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Details
Case
[2016] FCCA 493
Decision Date

CaseChat Overview and Summary

The applicant, Josan, sought judicial review of a decision by the Migration Review Tribunal (MRT) which affirmed the Minister for Immigration and Border Protection's refusal to grant him a Skilled (Residence) visa. The refusal was based on the applicant's failure to meet Public Interest Criterion 4020 (PIC 4020), with the delegate considering material suggesting the applicant's work reference was a "bogus document." The central dispute concerned whether the MRT was authorised to refuse the applicant access to this material and whether the failure to provide it constituted a breach of procedural fairness.

The court was required to determine two primary legal issues. Firstly, whether the Migration Review Tribunal was required or authorised to refuse the applicant access to certain material that was subject to a section 375A certificate, which certified that disclosure would be contrary to the public interest due to containing third-party details not relevant to the merits review. Secondly, the court had to consider whether the failure to provide this material to the applicant constituted a breach of procedural fairness, and consequently, whether declaratory relief should be granted.

Justice Dowdy reasoned that while section 375A of the Migration Act 1958 (Cth) imposed secrecy obligations, the MRT was still entitled to provide particulars of information that would form the basis of its decision, even if that information was otherwise subject to a section 375A certificate. This was in accordance with the decision in *Burton v Minister for Immigration and Multicultural and Indigenous Affairs* (2005) 149 FCR 20. The court found that the particulars provided in the section 359A letter, which indicated concerns about the applicant's work reference being a bogus document or containing false or misleading information, must have originated from the documents covered by the section 375A certificate. The court concluded that the MRT had complied with its procedural fairness obligations by providing the applicant with particulars of the information that would be relied upon, allowing him an opportunity to respond.

The court dismissed the applicant's application for judicial review. The applicant was successful in proceedings only after filing an amended application with substantially altered grounds and relief sought. Therefore, the court ordered that the first respondent pay the applicant's costs only from the date of the filing of the amended application.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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.