Kaur v Minister for Immigration

[2014] FCCA 2845

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2845

Catchwords:
MIGRATION – Application for review of decision of the Migration Review Tribunal – whether Tribunal failed to comply with s.359A of the Migration Act 1958 (Cth) – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.362B, 357A, 359A, 424A, 476

Migration Regulations 1994 (Cth), Schedule 2, Schedule 4

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162
Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; (2012) 201 FCR 240
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609
SZMPT v Minister for Immigration and Citizenship [2009] FCA 99
SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890
Minister for Immigration and Citizenship v SZLFX  [2009] HCA 31; (2009) 238 CLR 507

Applicant: PAWANPREET KAUR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 2035 of 2013

Judgment of: Judge Nicholls

Hearing date: 1 July 2014

Date of Last Submission: 1 July 2014

Delivered at: Sydney

Delivered on: 5 December 2014

REPRESENTATION

Solicitors for the Applicant: Mr M Jones of Parish Patience Immigration Lawyers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Ms M Stone of DLA Piper

ORDERS

1. The application made on 29 August 2013 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2035 of 2013

PAWANPREET KAUR

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 29 August 2013, seeking review of the decision of the Migration Review Tribunal (“the Tribunal”) made on 29 July 2013 which affirmed the decision of the Minister’s delegate to refuse the grant of a Skilled (Provisional) (Class VC) visa (“the visa”) to Ms Pawanpreet Kaur (“the applicant”).

Background

1. In evidence before the Court is a bundle of relevant documents (“the Court Book” – “CB”). The following background is relevant.

2. The applicant is a citizen of India. She applied for the visa on 6 December 2009 (CB 1 to CB 29). The delegate refused the grant of the visa on 21 June 2012 (CB 37 to CB 45). On 5 July 2012 the applicant applied to the Tribunal for review of that decision (CB 46 to CB 65).

3. By letter dated 3 June 2013 the Tribunal invited the applicant to a hearing scheduled for 25 July 2013 (CB 71). The invitation (scheduled for the same date) was also sent to a subsequent address for service provided by the applicant to the Tribunal (CB 81). The applicant did not attend the hearing (CB 94 to CB 95). The Tribunal proceeded to make its decision pursuant to s.362B of the Act.

4. The Tribunal affirmed the delegate’s decision on what it said were two independent bases. First, the Tribunal found that the applicant did not meet cl.485.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”) which the applicant was required to meet before the visa could be granted.

5. Relevantly, cl.485.224 provides, amongst other matters, that the applicant must satisfy Public Interest Criterion 4020 of Schedule 4 to the Regulations (“PIC 4020”). The version of PIC 4020 in force at the relevant time is reproduced at CB 105.

6. I further note that PIC 4020 provided that there be no evidence before the Minister that the applicant has given, or caused to be given, a bogus document, or information, to any one of a number of persons or bodies, that is fake or misleading in a material particular.

7. The Tribunal found that there was evidence that the applicant had provided a “work reference”, that was a “fraudulent reference relating to her alleged work experience”, to one of the bodies referred to at PIC 4020. In this case, the Trade Recognition Australia (“TRA”) (see [16] at CB 102).

8. On this basis the applicant did not meet PIC 4020 and therefore did not meet a part of cl.485 of the Regulations as she was required to do. The Tribunal did not waive this requirement pursuant to PIC 4020(4). In all the circumstances, the Tribunal found that the applicant did not satisfy cl.485.224 of the Regulations.

9. Second, and as it said, independently, the Tribunal found that the applicant did not satisfy cl.485.221 of the Regulations. The applicant had relevantly nominated “Cook” as her “nominated occupation” for the purposes of the application for the visa (CB 10). The Tribunal found that her skills, as relevant to this occupation, had not been assessed as suitable. This was in circumstances where the TRA had revoked an earlier skills assessment (see [22] at CB 102).

Application to the Court

1. The sole ground of the application is in the following terms:

   “1. The Tribunal erred by failing to comply with s 359A of the Migration Act 1958.

   Particulars

   The Tribunal relied on information concerning the Applicant’s skills assessment which was provided to it by the Department of Immigration and other sources other than the Applicant. As it considered this information to be part of the reason for affirming the decision under review, and the information was not exempt under s 359A(4) or provided to the applicant under s 359AA, the Tribunal was required to follow the procedures set out in s 359A(1) and (2). It failed to do so.”

Before the Court

1. The applicant’s complaint is that the Tribunal failed to comply with s.359A of the Act, because it failed to give to the applicant, in writing, clear particulars of “information” which it considered would be the reason, or a part of the reason for affirming the delegate’s decision. The applicant submits that the “giving” needed to be in writing because s.359AA of the Act was not available to the Tribunal in the circumstances, as no hearing took place (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 (“SAAP”)).

2. The applicant submits that the information that the Tribunal should have given to the applicant for comment related to the revocation of the applicant’s skills assessment recognition by the TRA. The applicant referred to the Tribunal’s decision ([11] – [14] at CB 101):

   “[11] In this case, in her application for the visa, the applicant claimed to have worked as a Cook in a particular restaurant between 1 November 2007 and 10 December 2008. She nominated the skilled occupation of ‘Cook’ and said she had a skills assessment from Trades Recognition Australia (TRA) dated 25 November 2008. She subsequently provided the Department with a copy of that assessment.

   [12] However according to the decision under review (a copy of which the applicant gave to the Tribunal without comment), TRA later advised the Department that a work reference the applicant had provided for the purposes of the skills assessment ‘was fraudulently obtained’ and that the applicant had been advised that the skills assessment had been revoked.

   [13] The decision also states that the applicant was invited to comment on the adverse information provided by TRA, and to identify any compelling circumstances that affect the interests of Australia, or any compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen which would justify the waiver of the relevant provisions of PIC 4020. The decision further states that the applicant did not respond to this invitation.

   [14] The details of the adverse information referred to in the Department’s letter are not explained in the Department’s file, and despite inquiries made by the Tribunal with both TRA and the Department, the Tribunal has been unable to establish what those details are. It has, however, been able to confirm the information provided by the applicant in the decision record, that TRA had advised the applicant that her skills assessment had been revoked.”

3. The applicant argues that, in part, the Tribunal’s finding was based on information contained in the delegate’s decision. She acknowledges that she attached delegate’s decision to her application for review made to the Tribunal.

4. In Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 (“Chamnam You”), a matter on appeal from this Court, Sundberg J held that by the applicant giving the delegate’s decision to the Tribunal, the applicant had also given the Tribunal information contained in that decision. In that circumstance, that information was exempt from the obligation in s.359A(1) because of the operation of s.359A(4)(b) (see also Minister for Immigration and Citizenship v Brar [2012] FCAFC 30; (2012) 201 FCR 240).

5. The applicant formally submitted that Chamnam You was incorrectly decided. That is not of concern in the current circumstances, given that this Court is plainly bound by what was found in Chamnam You.

6. In this regard, the information which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision, and which was derived from the delegate’s decision, is caught by the exemption in s.359A(4)(b) of the Act.

7. Two matters are of note here. First, on a fair reading of what is set out at [12] (at CB 101) of the Tribunal’s decision record, a strong inference may be drawn that the Tribunal understood the meaning of the exemption as set out at s.359A(4)(b) of the Act. The Tribunal made specific reference to “the decision under review” and, in parentheses, that the applicant had given a copy of the delegate’s decision record to the Tribunal.

8. Second, it is important to note exactly what is said to be the “information” relevant to the consideration in this case. To achieve that understanding, regard must be given to the circumstances in which s.359A is engaged (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (“SZBYR”) per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ at [15] in relation to the “parallel” provision of s.424A).

9. As the High Court made plain in SZBYR at [15]:

   “Section 424A does not require notice to be given of every matter the Tribunal might think relevant to the decision under review. Rather, the Tribunal’s obligation is limited to the written provision of ‘particulars of any information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review’.”

10. The best evidence available of the information that the Tribunal considered would be the reason or a part of the reason for affirming the decision, is what it relevantly said in its decision record. We need not be concerned with any “temporal effect” of s.359A of the Act here, as no Tribunal hearing took place in this case (see SZBYR at [13] and SAAP at [11]). In any event, the Tribunal’s decision record can assist in informing the question of what the Tribunal considered “would be” the reason, or a part of the reason, for affirming the delegate’s decision, of course with reference to the some point antecedent to the publication of its decision (see SZMPT v Minister for Immigration and Citizenship [2009] FCA 99 at [20] per Jacobson J, and SZMFZ v Minister for Immigration and Citizenship [2008] FCA 1890 at [36] per Siopis J).

11. From that record, the information that the Tribunal considered would be the reason or a part of the reason for affirming the delegate’s decision  was that (at [12] of CB 101):

    “[12]…[the] TRA later advised the Department that a work reference the applicant had provided for the purposes of the skills assessment ‘was fraudulently obtained’ and that the applicant had been advised that the skills assessment had been revoked.”

12. Given Chamnam You, the applicant does not seek to attack (other than formally) that part of the Tribunal’s reasoning and as it related to s.359A of the Act. Rather, the applicant draws attention to the last sentence of [14] of the Tribunal’s decision record (at CB 101):

    “[14] The details of the adverse information referred to in the Department’s letter are not explained in the Department’s file, and despite inquiries made by the Tribunal with both TRA and the Department, the Tribunal has been unable to establish what those details are. It has, however, been able to confirm the information provided by the applicant in the decision record, that TRA had advised the applicant that her skills assessment had been revoked.”

    [Emphasis added.]

13. The applicant’s submission was that that “confirmation” was, of itself, information for the purposes of s.359A(1) of the Act, which was not caught by the exemption in s.359A(4)(b) of the Act which the Tribunal relied upon, and was not put in writing to the applicant in satisfaction of the obligation in s.359A(1) of the Act (SAAP).

14. The applicant’s written submissions explained that the Tribunal took into account “other information” which it had directly received from the TRA. She further submitted that this “other information” was caught by s.359A(1) of the Act.

15. Before the Court, the applicant did not explain how this “other information” was different to the information in the delegate’s decision, to which the Tribunal referred to at [12] (at CB 101) of its decision record, such that it could be described as “other information”. In any event, what is relevantly set out the Tribunal’s decision record is plainly no more than the “confirmation” of the relevant information to which the Tribunal refers at [14] (at CB 101).

16. The delegate’s decision relevantly contained the following (CB 56.7):

    “On 18 June 2010, TRA advised the Department that the work reference provided to you by your employer, Last Train to Bombay Indian Restaurant was fraudulently obtained. Due to this finding, TRA advised this office that you were advised your skills assessment had been revoked on 6 January 2011.”

    [Emphasis in the original.]

17. The “information” to which the Tribunal refers at [14] (at CB 101) appears to relate to what is set out at CB 90:

    “…

    Thank you for your enquiry to Trades Recognition Australia (TRA). I apologise for the time taken to provide an answer.

    This information is provided under Principle 11(1) a and b of the Privacy Act 1988.

    TRA applicant KAUR, PAWANPREET (DOB 25/12/1986) TRA08/106228996 had her successful TRA skills assessment revoked on 6/01/2011.

    This applicant provided work experience documents from The Last Train to Bombay, but an investigation undertaken by the Department of Immigration and Citizenship revealed that she was not employed in a paid or unpaid capacity by this restaurant.”

18. Some care must be exercised here. In Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 (“SZLFX”) the High Court relevantly said the following ([24] ‑ [25]):

    “[24] As a Full Court of the Federal Court of Australia (Dowsett, Bennett and Edmonds JJ) pointed out correctly, shortly after SZBYR, in SZKLG v Minister for Immigration and Citizenship, s 424A depends on the RRT's “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review. Here, there was no evidence or necessary inference that the RRT had “considered” or had any opinion about the file note.

    [25] As observed equally correctly by Heerey J in MZXBQ v Minister for Immigration and Citizenship, s 424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review.”

19. For current purposes, therefore, in the absence of any other evidence, attention can only be focused on the Tribunal’s decision record as the underlying source for what the Tribunal “considers” “would be” the reason, or a part of the reason, for affirming the delegate’s decision. The material at CB 56 and CB 90 may be information which “could” or “might” be that reason, but in the absence of any other evidence, what “would be” the reason can, in the present case, only be derived from the Tribunal’s decision record, given that it contains the Tribunal’s consideration.

20. The “information” to which the Tribunal referred at [12] (at CB 101) was no more, or different to, that which was derived from the delegate’s decision. At [14] (at CB 101) there were two references to “information”.

21. First, that the TRA had advised the applicant that her skills assessment had been revoked. This is identical to what is at [12] (at CB 101) and as derived from the delegate’s decision. Second, and in its terms putting the matter beyond doubt, was a reference to “the information provided by the applicant in the decision record”.

22. In these circumstances, the information which the Tribunal considered would be the reason is the same information in both [12] (at CB 101) and [14] (at CB 101). The only difference between the two paragraphs is the source of that information.

23. At [12] (at CB 101) there is no argument that the information derives from the delegate’s decision record. At [14] (at CB 101) the information referred to by the Tribunal to “confirm” that information was from another source.

24. In my view, there is a difference between “information” as that term is understood with reference to relevant authorities (SZBYR and SZLFX), and the different concept of confirmation of that information.

25. There may well be circumstances where information taken from one source to confirm information taken from another source may contain sufficient elements of difference in particularity such that, while confirming the information from the latter source, it is different information.

26. However, the obligation in s.359A of the Act does not, or would not, arise from the mere fact that such information was confirmation of the other information. The obligation would arise from the fact that it can be said to be different, or additional information, which the Tribunal considered would be the reason or a part of the reason for affirming the delegate’s decision.

27. In the current case the fact that the relevant information came to the Tribunal from two sources does not alter the fact that it is the same information. That is, information caught in the first instance by s.359A(4)(b) of the Act. That the Tribunal referred to confirmation of that same information does not alter the character or the nature, or for that matter, in the current case, the particularity of that information. As the Minister submits, “confirmation” of itself is not “information” for the purposes of s.359A(1) of the Act.

28. It must be remembered that s.359A of the Act is concerned with fairness. Even if the common law rules of procedural fairness applied, then the applicant would be hard pressed to argue, given that all the information (relevant to the current consideration) was in the delegate’s decision, which she gave to the Tribunal, that she was not aware of the case against her. Nor that she lacked an opportunity to answer that case. The Tribunal’s reference at [12] (at CB 101), that is that part in parentheses, to the fact that she gave the decision record “without comment”, stands in recognition of that opportunity.

29. Of course, this is a case to which s.357A of the Act applies. The applicant’s reliance on SAAP would have been of assistance to her if the Tribunal’s obligation in s.359A(1) of the Act were engaged. In those circumstances the Tribunal would have been compelled to put any information to the applicant in writing in the absence of a hearing. That is, the opportunity to have utilised the facility in s359AA to otherwise meet any obligations arising from s.359A(1) of the Act and, therefore, the inability to utilise s.359AA of the Act.

30. However, in the current case the information which the Tribunal considered would be the reason or a part of the reason for affirming the delegate’s decision was information that was exempt from the requirement set out in s.359A(1) of the Act.

Conclusion

1. In these circumstances there is no jurisdictional error in the Tribunal’s decision as asserted by the sole ground of the application. As no jurisdictional error has been made out the application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  5 December 2014