KANDEL v Minister for Immigration

[2015] FCCA 2093

FEDERAL CIRCUIT COURT OF AUSTRALIA

KANDEL v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2093

Catchwords:
MIGRATION – Subclass 457 visa – Public Interest Criterion 4020 – authenticity of documents – whether the Tribunal had regard to material – whether compelling or compelling circumstances existed – whether Tribunal breached its obligation to give reasons – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.368, 415, 425

Migration Regulations 1994 (Cth), cl.4020 of sch.4

Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940
Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage & the Arts (2011) 180 LGERA 99
Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140
Mentink v Minister for Home Affairs [2013] FCAFC 113
Minister for Immigration & Border Protection v MZYTS (2013) 136 ALD 547
Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration & Citizenship  v SZRKT (2013) 212 FCR 99
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
SZACW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1690
SZSZW v Minister for Immigration & Border Protection [2015] FCA 562 at [17]
Tickner v Chapman (1995) 57 FCR 451

Applicant: DHADIRAM KANDEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2205 of 2014

Judgment of: Judge Smith

Hearing date: 17 June 2015

Date of Last Submission: 22 July 2015

Delivered at: Sydney

Delivered on: 7 August 2015

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Ms B. Tronson

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2205 of 2014

DHADIRAM KANDEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant applied for a Temporary Business Entry subclass 457 visa. In support of that application he sent to the Department of Immigration a reference letter certifying that he had worked with a particular furniture company in Nepal from January 2002 until September 2008. The Department obtained information that suggested that the reference was not authentic. When this was put to the applicant for comment, he provided the Department with a document purporting to be from the Office of Cottage and Small Industry of Nepal (“OCSI”) dated 13 July 2012.

2. The Department then obtained information that the 13 July 2012 document was a fake and put that to the applicant for comment. In response, the applicant claimed that the letter was genuine and provided a copy of the page of the book purporting to contain details of the dispatch record together with a letter from the OCSI dated 22 August 2012.

3. A delegate of the Minister found that the employment claims made by the applicant were false and misleading and decided not to waive the requirement that the applicant not provide such information in support of his claim. On review, the Migration Review Tribunal concluded that both of the letters from the OCSI provided by the applicant were bogus. The first issue in the application before the Court is whether, in arriving at that conclusion in respect of the second letter, the Tribunal had regard to the other material submitted by the applicant concerning the authenticity of the OCSI letters. The second issue concerns the Tribunal’s decision to refuse to waive the requirement that the applicant not submit bogus documents.

4. For the reasons that follow, both of the issues are to be resolved against the applicant and the application will be dismissed.

Background

1. In order to be granted a visa an applicant must satisfy the criteria for the grant of that visa. One of the criteria for the grant of the visa for which the applicant applied was that he satisfy Public Interest Criterion 4020. As the Tribunal noted at [78] of its reasons, that criterion, broadly speaking, requires that:

   ·there is no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made; and

   ·the applicant and each member of the family unit had not been refused a visa because of a failure to satisfy PIC 4020(1) in the period commencing 3 years before the application was made to the present.

2. That requirement can be waived if there are compelling or compassionate reasons justifying the grant of the visa.

Background

1. As already noted, in support of his application the applicant provided the Department with a letter on the letterhead Triveni Furniture & Furnishing Centre dated 10 March 2009. The address on the letter was “Kawasoti, Nawalparasi”. Officers of the Department went to the address in the letter but were unable to locate the business. They did locate a business called Triveni Auto Point and were told by somebody there that there had been no furniture business at that location and that nobody by the name of the applicant had been known as working for the author of the letter. The officers then made further enquiries and ultimately spoke by telephone to the author of the letter to confirm that the applicant had worked with him but had now gone to Australia. Further enquiries revealed that nobody in the area was aware of any furniture business being conducted there.

2. This information was provided to the applicant for comment. In reply, he indicated that he stood by his previously submitted documents and submitted a further letter from the author of the reference letter as well as a reference from his current employer. The Department then gave the applicant a further opportunity to establish that the business had been operating or registered.

3. In response, the applicant sent the Department the OCSI letter dated 13 July 2012. That letter confirmed on its face that the firm named Triveni Furniture and Furnishing Centre had been registered and was operating until 2009/2010 but that it had not renewed its registration after that time. The applicant also submitted a statutory declaration stating that the business operated until 2009/2010 and the applicant’s employer was unable to provide further evidence from the OCSI as the office was deliberately destroyed by Maoists.

4. An officer of the Department called the OCSI and spoke to a person who said that he had checked his records and said that the details of the second letter did not match the Department’s records. Further, the officer was told that on 13 July 2012 only three letters were issued, all bearing numbers that were different to that on the OCSI letter submitted by the applicant.

5. The applicant denied the allegation that the second OCSI letter was a fake and insisted that the government had a poor system of keeping records and that the staff concerned were ignorant. He produced yet another letter from the OCSI dated 22 August 2012. That letter confirmed the contents of the earlier letter and stated that what had been told to the officer of the Department of Immigration was wrong. In addition to this letter, the applicant produced what purported to be a dispatch book for the months of June and July for the 2011/2012 financial year. This dispatch book showed that a letter dated 13 July 2012 with the dispatch number the same as the first OCSI document had been dispatched to “Tridev Enterprises, Kawasati”.

6. In its statement of reasons the Tribunal set out a full description of all of the material relied upon by the applicant. In doing so, it described the 13 July 2012 OCSI letter, the dispatch book and the second OCSI letter. Later, under the heading “Has the applicant given, or caused to be given a bogus document, or information that is false or misleading in material particular?”, the Tribunal stated:

   [92]The Tribunal has considered the evidence of the applicant and Mr Baral, the explanation of the applicant, the further document from the Office of Cottage and Small Industry signed by a person who gave his mobile number for contact and the dispatch book. However the Tribunal is not satisfied that these documents, the explanation of the applicant or the evidence of the applicant and Mr Baral, overcome the significant concerns the Tribunal has about the letter dated 13 July 2012 from the Office of Cottage and Small Industry.

7. The Tribunal was satisfied that the document dated 13 July 2012 purportedly from the OCSI was a bogus document because it purported to have been, but was not issued, in respect of a person operating Triveni Furniture & Furnishing Centre from 2001 until 2009/2010. It was satisfied that the document was counterfeit. It was also satisfied that there was evidence that the applicant had given, or caused to be given, to the Minister or officer the bogus document and so the applicant did not satisfy cl.4020(1) of the Migration Regulations 1994.

8. The Tribunal then turned to the question of whether it should waive the requirement to comply with cl.4020. Although the applicant’s sponsoring company was very satisfied with his work, it was not satisfied that there were compelling circumstances that affected the interests of Australia to justify the granting of the visa. For those reasons the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a visa.

Consideration

First issue: Failure to consider corroborating documents

1. The applicant argues that the Tribunal failed to analyse the contents of the documents produced by him to corroborate the authenticity of the 13 July 2012 OCSI letter. He argues that simply to state, without any analysis, that the documents do not overcome the concerns in relation to another document is a failure to consider relevant critical evidence.

2. The question of whether an administrative decision maker has considered a matter or taken that matter into account (whether that be a relevant consideration, explanation, argument or material that has a logical bearing upon the question to be determined) is essentially one of fact. That said, there is much authority on the meaning of “consider” and “take into account”. For example, in Tickner v Chapman (1995) 57 FCR 451 Black CJ found that the meaning of the verb “consider” to require the decision-maker to undertake an active intellectual process directed at the representation or submission: see also Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage & the Arts (2011) 180 LGERA 99 at [44]; Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140 at [49] and Mentink v Minister for Home Affairs [2013] FCAFC 113 at [44]. However, care must be taken in applying principles that have been developed in particular statutory contexts: Minister for Immigration & Citizenship  v SZRKT (2013) 212 FCR 99 at 128 [99].

3. The duty of the Tribunal was to “review” the decision of the delegate: Migration Act1958 s.415. In undertaking a review, the Tribunal is obliged, in most circumstances, to invite an applicant to attend a hearing in order to give evidence and present arguments about the issues that arise on the review: s.425. It may be accepted, in light of the obligation under s.425, that the duty to review generally entails an obligation to consider the evidence and arguments given by the applicant in support of his claims to be owed protection obligations by Australia. Another way of saying the same thing is that, in order for the Tribunal to fulfil its statutory duties, there must generally be both a consciousness and consideration of the submissions, evidence and material advanced by the applicant: Minister for Immigration & Border Protection v MZYTS (2013) 136 ALD 547 at 559 [38]; SZSZW v Minister for Immigration & Border Protection [2015] FCA 562 at [17]. That said, whether there is such an obligation will depend upon the circumstances of the case and the nature of the evidence and all material: SZRKT at 130-131 [112].

4. In MZYTS the Full Court of the Federal Court found that the Refugee Review Tribunal had failed to consider certain information about the circumstances in the country of nationality of the visa applicant. The Minister had submitted that the Court could not infer that the Tribunal had ignored the material but only that the Tribunal had simply preferred other material which is probative of the question about what would happen to the visa applicant on return to his country of nationality. The Court said:

   [50]We do not accept the Minister’s submission. The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.

5. I do not understand that passage to mean that, in every case where the reasons do not expressly set out an analysis of competing evidentiary material, the Court must conclude that the Tribunal has not considered that material. Critically, there was in that case, no reference at all in the Tribunal’s statement of reasons to the information said to have been overlooked or not considered.

6. When drawing inferences as to what the Tribunal did or did not do in the course of its review it is important to bear in mind the scope of the Tribunal’s obligation to prepare a statement of reasons. The scope of that obligation in respect of the analogous provisions relevant to the Refugee Review Tribunal were considered in some detail by McHugh J in Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at 416. There, his Honour approved the following passage from the decision of the Full Court of the Federal Court in Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940:

   "Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act.

   …

   It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made."

7. Justice McHugh then said:

   However, the obligation to set out "the reasons for the decision (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal.

8. His Honour’s remarks remain good authority.

9. In the present case, I do not accept that the Tribunal failed to consider the material produced by the applicant in corroboration of the authenticity of other documents produced by him. First, the fact that it expressly referred to all of that material indicates at the very least a consciousness of the material; secondly, in its description of that material, the Tribunal revealed that it had read the documents and was aware of their contents; and thirdly, it said expressly that it had considered the material. These three matters are sufficient to satisfy me that the Tribunal had turned its mind to the contents of the evidence and other material and had weighed it against the material which suggested that the document produced by the applicant was bogus. It is difficult to draw any other conclusion in light of the express statement by the Tribunal that it had considered that material.

10. For those reasons the first issue (being that raised by grounds one and three in the application) must fail.

Second issue: Compelling and compassionate circumstances

1. The requirement that the applicant comply with cl.4020(1) may be waived by the Tribunal if it is satisfied that there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident justify the granting of the visa: cl.4020(4).

2. In considering whether to waive compliance with cl.4020(1), the Tribunal considered the material put forward by the applicant in the following findings:

   [104]The Tribunal … accepts that the sponsoring company is very satisfied with the applicant’s work. However, the Tribunal was not satisfied that there are compelling circumstances that affect the interests of Australia that justify the granting of the visa.

   …

   [107]The Tribunal accepts that the applicant is valued by the sponsoring company. However, the Tribunal is not satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, and Australian permanent resident or an eligible New Zealand citizen, that justify the granting of the visa.

   [108]The applicant (sic: Tribunal) also accepts that the applicant volunteers for the Baglung Australia Community. The applicant provided a letter dated 19 March 2014 from Thamman Kunwar of the Baglung Australia Community. Thamman Kunwar stated that the applicant is an active member of the community since 2010. He has been doing volunteer work in the community during their sporting season as well is other community activities and he is very helpful. The Tribunal has taken this evidence into account. However, the Tribunal is not satisfied that there are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or and eligible New Zealand citizen, that justify the granting of the visa.

3. The applicant argues that the Tribunal failed to have regard to the findings set out in these paragraphs in determining whether there were compelling circumstances within the meaning of cl.4020(1). That argument was amended in submissions filed by the applicant after the hearing. The submission was simply that all the Tribunal did in respect of the specific basis raised by the applicant for the waiver of cl.4020 was to note the claim and then to make a conclusory statement.

4. The Minister submitted that whether or not there were compassionate or compelling circumstances was a matter of fact and the finding by the Tribunal was open to it. That submission does not really address the issue raised by the ground. The fact that a finding is open to a decision-maker on the material before it is only a partial answer to the question of whether or not the decision was affected by jurisdictional error.

5. That said, the ground must fail in the way in which it is framed in the application. In light of the fact that the Tribunal made a number of findings and set those findings out in its statement of reasons immediately before its conclusion can only mean that it took those findings into account in reaching its conclusion. The issue, as addressed in the applicant’s written submissions, is more difficult. The Tribunal did not really give any explanation as to why the facts it found did not amount to compelling or compassionate circumstances within the meaning of cl.4020(4). In that way, it could be said to have failed to comply with its obligation to give reasons under s.368(1) of the Act.

1. In Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] McHugh, Gummow and Hayne JJ said in relation to an analogue of s.368(1):

   … It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion.

2. The brevity of the Tribunal’s reasons is not itself a jurisdictional error: SZACW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1690 at [29]. However, as explained by Rares J in Minister for Immigration & Citizenship v SZLSP [2010] FCAFC 108 at [91], the brevity of reasons may indicate that the Tribunal did not, in fact, perform its function of review according to law. It may be that the failure to give reasons in respect of a particular conclusion might support the inference that there were in fact no reasons for that conclusion.

3. In this case, however, the absence of reasoning in respect of the waiver is explicable by the fact that the criterion for the waiver hinges upon satisfaction of compelling or compassionate circumstances. The determination of whether circumstances are compelling or compassionate is essentially one of subjective judgment. Such a judgment may quite properly be explained simply by a bald statement of conclusion. For that reason, while it is possible that the Tribunal may have breached its obligation to give reasons, I do not infer from that fact that there were in fact no reasons for its decision or, for that matter, that there was some other jurisdictional error. I note in this respect that a failure to comply with s.368(1) would not amount to jurisdictional error: Durairajasingham at [70] and also Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Palme (2003) 77 ALJR 1829.

4. For those reasons the second issue must be resolved against the applicant.

Conclusion

1. There is no jurisdictional error affecting the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 7 August 2015