Kaur v Minister for Immigration

[2016] FCCA 741

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAUR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 741

Catchwords:
MIGRATION – Judicial review – visa – skilled visa –bogus document.

Legislation:

Migration Act 1958 (Cth), ss.5, 65, 357A, 359, 359A, 359AA, 359C, 360(2)(a), 362A, 362B(1F), 366A, 368(1), 375A, 376, 379A

Migration Regulations 1994 (Cth), sch.4
Privacy Act 1988 (Cth)

Cases cited:
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42
Minister for Immigration and Border Protections v SZSRS [2014] FCAFC 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Ahmed v Minister of Immigration & Anor [2015] FCCA 1038
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26

First Applicant: AMANDEEP KAUR

Second Applicant: MANINDER BRAR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 552 of 2015

Judgment of: Judge Harland

Hearing date: 12 February 2016

Date of Last Submission: 12 February 2016

Delivered at: Melbourne

Delivered on:  15 April 2016

REPRESENTATION

Counsel for the Applicants: Ms Costello

Solicitors for the Applicants: FCG Legal

Counsel for the Respondents: Mr Aleksov

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the application for judicial review filed on 19 March 2015 be dismissed.

1. That the Applicant pay the First Respondents costs in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 552 of 2015

AMANDEEP KAUR

First Applicant

MANINDER BRAR

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The first applicant applied for a skilled (Provisional) (class VC) visa. The second applicant is the applicant’s husband. For convenience I will refer to the first applicant as the applicant throughout these proceedings as the second applicant does not make any independent claim.

2. The applicant’s nominated occupation is as a pastry cook. As part of her visa requirements she was required to complete 900 hours of work experience as a pastry cook.

3. On 5 July 2012 the delegate made a decision pursuant to section 65 of the Migration Act 1958 (Cth) to refuse the applicant’s visa application on the grounds that she did not meet the criteria.

4. The applicant applied to review the delegate’s decision and the Tribunal handed down its decision affirming the delegate’s decision on 20 February 2015.

5. The applicant filed an application for judicial review to this court on 19 March 2015.

Relevant background and chronology

1. Ms Kaur says she worked at Pastry Art Design from February 2008 to January 2009 obtaining her required 900 hours of work experience. She is one of a category of students affected by the criminal conduct of Mr CA. Mr CA was charged with several criminal offences relating to the provision of false work references. He confessed to these crimes. The police uncovered several documents on his computer which included hundreds of work references. Redacted parts of Mr CA’s statements to police and associated documents form part of the CB. The County Court made a suppression order with respect to the documents.

2. The redacted CA documents provide a detailed picture of the fraudulent activity. The documents are not difficult to follow even with the parts of the documents blacked out.  Those documents include a statutory declaration by Mr CA, an agreed summary of the material facts, a summary of tape-recorded interview, a statement to the AFP by Mr CA and a schedule of evidence of the names of individuals with work references found on Mr CA’s USB stick. That page is mostly blacked out so as not to identify other individuals but the applicant’s name appears. Those documents appear at CB 80 to CB 116.

3. On 14 June 2012 the Department sent the applicant an invitation letter.  It appears at CB 75. The letter enclosed the redacted CA documents  and summarised the adverse information as follows:

   a)It referred to the requirement that the applicant satisfies public interest criteria (“PIC”) 4020 and specifically to clause 4020(1) with respect to a bogus document or information that is false or misleading.

   b)It then states that there is evidence to suggest the applicant provided or caused the provision of a bogus document or information that is false or misleading and that this may cause her visa application to be refused.

   c)The next section of the letter under the heading “Bogus Document” is significant and I will set it out in full below.

   d)The remainder of the letter contains standard clauses with respect to the time frame for response and the provision of document.

   e)The redacted CA documents were attached. Those documents appear in the Court Book immediately after the letter.

4. The section of the letter extracted in full is as follows:

   Bogus Document

   On 6 January 2009, in support of your application for a Skilled (Provisional) (Class VC) subclass 485 (Skilled – Graduate) visa, you provided to the Department a skills assessment from Trades Recognition Australia (TRA) reference number TRA09/004252238.

   To obtain this skill assessment, you supplied to TRA documents supporting your 900 hours work experience from Pastry Art Design.

   On 4 November 2011, a CA pleaded guilty to the manufacture and sale of work references from Pastry Art Design. CA has admitted the documents were fraudulent in contact and that they were created to assist you to apply for permanent residence in Australia.

   Evidence supplied to the court indicates that the one you submitted to Trades Recognition Australia (TRA) to obtain your skills assessment matches one manufactured by CA. Copies of the evidence are attached for your reference.

   As a result of these events we have reason to believe that the skills assessment submitted as part of your Skilled (Provisional) (Class VC) subclass 485 (Skilled – Graduate) visa application is a bogus document as it has been obtained because of a false or misleading statement.

   You may provide comment on the information that is considered to be non-genuine, and specify if you believe there are any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of PIC 4020 and the grant of the visa.

5. This is a fair summary of the CA documents and provides the applicant with sufficient information to know the nature of the adverse information which she had to address. This particularly as it was combined with the provision of the redacted documents which spell out the issue is very clearly. The redacted documents specifically refer to Mt Ploumidis providing false work references for students in return for payments from Mr CA.

6. The delegates’ decision was issued on 5 July 2012.

7. The Tribunal issued an invitation letter to the applicant dated 11 June 2014. That letter referred to:

   a)Some of the information in the attached letter falling with the terms of Cannon J’s order prohibiting the publication of some information and attaching a copy of that order. It goes on to state that a breach on that order could amount to contempt of court and she should seek legal advice if she had questions about compliance with the order.

   b)The letter then refers to information which the Tribunal has not made up its mind and invites the applicant to comment on that information and provide further information. That portion of the letter is set out below:

   Please note, however that the Tribunal has not made up its mind about the information.

   The particulars of the information are:

   ·   an employment reference issued to you by Pastry Art Design was fraudulently produced or procured

   ·   the employment reference was provided by you or on your behalf to TRA to obtain a positive skills assessment in your nominated occupation

   ·   CA has pleaded guilty in criminal proceedings in Victoria to the manufacture and sale of work references matching the employment reference submitted to TRA to obtain your skills assessment

   ·   CA has admitted that the work references were fraudulent in content and that they were created to assist clients to apply for permanent residence in Australia

   This information is relevant to the review because the criteria for the grant of the Skilled Graduate visa you have applied for include that there be no evidence that you have given or caused to be given to persons including the Minister a bogus document or information that is false or misleading in a material particular in relation to the visa application.

   If the Tribunal relies on this information in making its decision, it may find that you do not meet this criterion for the grant of a visa and so the Tribunal may affirm the decision of the delegate to refuse to grant the visa.

   You are invited to give comments on or respond to the above information in writing.

   Invitation to provide information

   You are also invited to provide the following information in writing:

   Evidence that as at the date on which you made your visa application you had applied for an assessment of your skills for your nominated skilled occupation by a relevant assessing authority and, further, that your skills for that occupation have been assessed by the relevant assessing authority as suitable for that occupation.

8. The fact that the Tribunal did not enclose the redacted documents again does not amount to a failure to provide sufficient particulars to the applicant for her to be able to meaningfully address the case against her.

9. The applicant responded to that letter on 23 June 2014 in detail, providing photographs of her working at Pasty Art Design. She also provided a further letter from, her employer Mr Ploumidis dated 20 June 2014.

10. There was a considerable gap from the time of the delegate’s decision and the Tribunal hearing.

11. In a letter dated 1 October 2014 the applicants were invited to appear before the Tribunal to give evidence and make arguments.

12. The Tribunal hearing took place on 18 November 2014.  Mr Ploumidis gave evidence in addition to the applicant. The applicant also relied on two statutory declarations by Michael Karfut, manager of Pastry Art Design and Angela Tharu and employee at Pastry Art Design which were handed up at the hearing. [see CB 226 and 227].

13. The Tribunal’s decision focused on whether or not the applicant met the requirements for her visa under PIC 4020. The central issue was whether or not the TRA’s assessment was a bogus document.

14. The Tribunal’s decision refers to the CA criminal investigation and the documents found in his possession.

15. At [36] the Tribunal referred to the documents produced by the Department in response to a summons issued by the Tribunal. At paragraph [37] the document identified was the work reference relating to the applicant seized from Mr CA’s premises. The Tribunal noted that the work reference was identical to the one the applicant submitted in the TRA including the typographical errors. The only difference was that the document in Mr CA’s possession was unsigned. The Tribunal does not refer to any additional documents.

Applicant’s grounds for review

1. The applicant relied on five grounds. The applicant sought leave to add additional grounds being grounds four and five. Advance notice was given with respect to those grounds and both sets of written submissions address those grounds. The first respondent did not object to those grounds being added.

2. Those grounds are:

Ground 1

1.  The Tribunal erred by failing to apply the law to the facts and/or by failing to take into account a relevant consideration in that:

a.  the Tribunal found that the applicant's skills assessment from the TRA was obtained because of a false statement, being the work reference provided by Pastry Art Design; and

b.  the Tribunal made this finding without taking into account that the TRA decided that the applicant had completed 900 hours work experience based on the TRA's own verification of her work experience with the relevant employer.

Ground 2

2.  The Tribunal erred by asking the wrong question in that:

a.  the Tribunal asked whether there was no evidence that the contents of the Pastry Art Design reference were false; and

b.  the correct question was whether there was no evidence that the assessment was obtained because of a false statement.

Ground 3

3.  The Tribunal breached s.357A and/or s.359A and/or s.360 and/or s.362A:

a.  by putting matters to the applicant orally, rather than in writing, in circumstances where the matters concerned fraud, were lengthy and included evidence obtained from CA, who is a man convicted of crimes and of questionable credibility;

b.  by putting matters to the applicant about information in a way that was incomplete and failed to identify weaknesses in the information in circumstances where Mr CA' s evidence was that he had no way of knowing whether the students actually completed the 900 hours;

c.  by declining to hear the applicant's relevant evidence about her work at the bakery;

d.  by making a finding that the applicant had paid to procure a false reference letter without warning the applicant that such a finding may be made and without being willing to hear her evidence about working at the bakery; and

e.  by declining to hear evidence from Mr Ploumidis who was owner and head chef at the bakery about the breakdown in his relationship with Mr CA on the basis that the Tribunal had knowledge about the relationship, without revealing the source or content of that knowledge or information; and

f.   by not giving the applicant information to which it was entitled under s.362A.

Ground 4

The Tribunal erred by ignoring relevant material received at the hearing on 18 November 2014, namely:

(a) the corroborating statutory declaration of Michael Karfut declared on 11 November 2014; and

(b) the corroborating statutory declaration of Angela Tharu, declared on 13 November 2014.

Ground 5

Having obtained information from the TRA and the Secretary of the DIBP, the Tribunal was obliged by s.359 to have regard to it. The Tribunal failed to have regard to the information provided by the TRA and Secretary, in that:

(a) the Tribunal failed to have regard to the fact that the TRA’s version of the work reference had attachments that were not part of the work reference seized from CA; and

(b) the TRA provided a letter from Emmanuel Ploumidis verifying the applicant’s work experience and the Tribunal failed to have regard to the letter.

The relevant legislation – visa requirements

1. Schedule 4 of the Migration Regulations 1994 (Cth) sets out the public interest criteria and related provisions.

2. PIC 4020 says the following:

   (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.

   (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).

3. ‘Bogus document’ is defined at section 5 of the Migration Act 1958 (Cth) as:

   “a document that the Minister reasonably suspects is a document that:

   (a) purports to have been, but was not, issued in respect of the person; or

   (b) is counterfeit or has been altered by a person who does not have authority to do so; or

   (c) was obtained because of a false or misleading statement, whether or not made knowingly.”

4. It is clear from the wording of the above sections that the Minister does not need to be satisfied that Ms Kaur knew the document was bogus.  The Full Court examined PIC 4020 in Trivedi and Minister for Immigration and Border Protection [2014] FCAFC 42 (“Trivedi”). I accept the first respondent’s submissions that the threshold is low. The wording of PIC 4020 is clear. The Minister only needs to have a reasonable suspicion. Buchanan J stated in Trivedi that the information or document must be purposely untrue. It is not necessary to establish that the visa applicant knew the information or document was false.

Legislative criteria relied on by the applicant

1. The applicant complains that the Tribunal breached section 357A and/or section 359A and/or 360 and/or section 362A of the MigrationAct 1958 (Cth) (“the Migration Act”).

2. Section 359 states that Division 5 codifies the natural justice requirements that apply to cases under this part and specifically to sections 376 so far as they apply to this part. Section 357A(2) requires the Tribunal to act in a way that is fair and just when applying this division.

3. These sections are set out below:

   375A 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.

   359A Information and invitation given in writing by Tribunal

   (1) Subject to subsections (2) and (3), the Tribunal must:

   (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear 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; and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c) invite the applicant to comment on or respond to it.

   (2) The information and invitation must be given to the applicant:

   (a) except where paragraph (b) applies—by one of the methods specified in section 379A; or

   (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

   (3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

   (4) This section does not apply to information:

   (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b) that the applicant gave for the purpose of the application for review; or

   (ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c) that is non‑disclosable information.

   (5) A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 362B(1F).

   360 Tribunal must invite applicant to appear

   (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   (2) Subsection (1) does not apply if:

   (a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

   (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

   (c) subsection 359C(1) or (2) applies to the applicant.

   (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.

   362A Applicant entitled to have access to written material before Tribunal

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

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

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

1. Sections 375A, 376 and 368 do not apply. The Privacy Act provisions do not apply either: see Dhillon. The issue in Dhillon was different because in that case the Tribunal had not sent him the redacted CA documents which Mr Dhillon had requested.

Argument

Ground 4

1. I will deal with the ground 4 first as it raises a discrete issue. The applicant complains in ground 4 that the Tribunal ignored the two statutory declarations which were handed up at the tribunal hearing. The statutory declarations are brief. They appear at pages 226 and 227 of the CB the first statutory declaration by Angela Tharu. She worked at Pastry Art Design. The second statutory declaration by Michael Karfut. He is the Manager of Pastry Art Design. Both statutory declarations state that they verify that the applicant worked the 900 hours between February 2008 in January 2009. Significantly neither deponent states how they are able to verify that information.

2. Mr Aleksov, counsel for the first respondent pointed out that s.368 of the Migration Act requires the Tribunal to record it decision and to set out the findings on material questions of fact and to refer to the evidence upon which it based its finding of facts.  I am satisfied that the Tribunal did not fall into jurisdictional error in not mentioning the statutory declarations in its reasons because they could not have affected the outcome.

3. The comments of the Full Court of the Federal Court in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at paragraph 34 summarises the issue well. They said:

   “The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material…”

4. It is certainly clear that the Tribunal was in error about the dates the applicant started studying. Paragraph 68 of the Tribunal’s decision is wrong when it refers to the applicant not starting her studies until 25 March 2008. The applicant clearly gave evidence in the transcript in answer to the tribunal members question about when she commenced studies that she started studying in January 2008. She said she started working at Pastry Art Design on to February 2008. The finding that it was implausible that the applicant would have found out about and arranged work experience soon after arriving in Australia and seven weeks before she started the course cannot be sustained. If that was the primary basis for the Tribunal reaching its decision then it would amount to a jurisdictional error. However in circumstances of this case I am satisfied that whilst it is in error this did not amount to a jurisdictional error because the critical issue in the Tribunal reaching the decision was whether the applicant either provided or caused to be provided a bogus document. The central issue is whether or not the applicant’s completed 900 hours of work experience.

5. The applicant’s counsel described these statutory declarations as corroborative evidence that were important in the context of fraud case. I do not accept that submission. In circumstances where the critical issue is whether or not the applicant worked 900 hours and where the evidence is that neither the applicant nor Mr Ploumidis kept records of the applicant’s work hours, the statutory declarations do not add to that evidence. It was within the Tribunal’s discretion to not place weight on those statutory declarations.

6. Whilst it would have been preferable for the Tribunal to have briefly mentioned the statutory declarations in its reasons, its failure to do so does not amount to a jurisdictional error. The Tribunal member does refer to the statutory declarations on page 3 of the transcript.

7. Ground 4 has not been made out.

Grounds 1 and 2

1. These grounds are conveniently dealt with together.

2. In support of Ground 1 Ms Costello says in her written submissions that the Tribunal made an error finding that the false reference letter from the bakery was the false statement. She says that the Tribunal wrongly focused on the reference seized from the Mr CA’s computer not where or not the TRA assessment was caused by a false reference letter.

3. The Tribunal refers to this at paragraph 53 of its decision. Ms Costello argues that this is in error because the Tribunal found that the TRA assessment was based on the reference letter without taking into account that the TRA’s assessment was based on its own verification of the applicant’s work experience. In this regard she refers to the short ‘[t]o whom it may concern’ letter which she says is verification of the applicant’s work experience by Mr Plaumoudis separate to the nine page reference letter. She fails to point out that Mr Plaumoudis’ name appears at the end of both letters as the author.

4. The applicant’s counsel argues that the Tribunal erred by failing to consider whether or not the TRA’s assessment was based on a false or misleading question, that is, a false reference letter. She says the Tribunal did not do that but instead focused on whether or not the reference letter had been obtained by way of a police search of the documents Mr CA had in his possession. She says the Tribunal jumped to the conclusion that the TRA assessment was a bogus document without carrying out the necessary analysis.

5. Counsel for the Minister disagrees with this submission and argues that the Tribunal was correctly addressing itself in reference to the requirements of section 5 of the Migration Act (formerly section 97) when considering whether or not the TRA assessment was a bogus document by reason of the reference letter containing false and misleading statements.

6. The first respondent’s written submissions address this point and argue that the TRA verified the applicant’s work experience through the work reference from Pastry Art Design and the short reference letter, both signed by Mr Ploumidis. There is no suggestion that the TRA took any other steps to verify the applicant’s work experience.

7. The first respondent’s counsel refutes the allegations that the Tribunal asked itself the wrong question and says it is necessary to examine the whole of its reasoning and analysis with respect to the false statements.

8. The first respondent’s counsel points out that the Tribunal found that there were two factors which lead to a finding that the work reference was a bogus document.  Paragraph 66 should not be looked at in isolation. Firstly, in paragraph 68 of its decision the Tribunal refers to it being implausible that the applicant would have started work experience with Pastry Art Design very soon after arriving in Australia and seven weeks before she started her course of study.

9. The second factor was that in circumstances where neither the applicant nor Mr Ploumidis kept records of the hours the applicant worked; it did not make sense that there would be a genuine work reference amongst the documents seized from Mr CA’s computer. This is addressed at paragraphs 69 to 71. The Tribunal noted that whilst the applicant claimed that the College kept records she made no attempt to obtain the records from the College despite being aware that the primary issue in her case before the Tribunal is whether or not she actually worked the required 900 hours.

10. There is no evidence to suggest that the TRA carried out any independent assessment quite apart from relying on the work reference. The fact that the TRA also spoke to Mr Ploumidis does not assist the applicant as he also signed the reference.

11. I am satisfied that the Tribunal asked itself the right question. This is clear on a fair reading of the decision as a whole. Grounds 1 and 2 are not made out.

Ground 3

1. The applicant’s counsel then turned her attention to section 359A which places an obligation on the Tribunal to give the applicant clear particulars of any information which would be the reason part of the reason for affirming the decision. Section 359A applies when the Tribunal gives written particulars. Section 359AA applies when the Tribunal decides to give those particulars orally.

2. I am not satisfied that the fact that the applicant received the redacted documents two and a half years before meant that she was somehow disadvantaged. Rather she has had ample opportunity to get the advice about the implication of those documents and had had the opportunity to gather evidence to answer the allegations.  This is particularly so bearing in mind that she had the assistance of a migration agent. She confirmed that she had the same migration agent assisting her even though her agent did not appear at the hearing.

3. I am also not satisfied that the summary in the invitation letter is inaccurate or misleading.  The complaint Ms Costello makes is that Mr CA’s comment which is recorded in the agreed statement of facts that “he would always push the students to do some training however, he did had no way of knowing whether they actually completed the training?” (See CB 91).  Mr Aleksov pointed out that Mr CA also said: “From my recollection, none of the students completed the full 900 hours.” (See CB 98 [25]).  The Tribunal accepted that the applicant worked some hours.

4. The complaints Ms Costello makes about the summaries contained in the invitation letter would carry great weight if the applicant was not provided with the redacted documents.

5. There are two aspects to Ms Costello’s complaint about procedural fairness. The first is that the tribunal breached its procedural fairness obligations by failing to provide the applicant with the extra pastry documents. The extra pastry documents consist of the short reference letter and generic documents containing pictures and descriptions of various parties. For convenience I will refer to those as the extra pastry documents.

6. The second aspect of her procedural fairness complaint is that the Tribunal inaccurately summarized the CA documents by stating the reference found on the USB stick and the reference provided by the applicant were identical. She refers to what the Tribunal member said to the applicant during the course of the hearing which was that the reference was the same as the reference sheet provided except that there was no signature. In another part of her argument Ms Costello referred to the need for common sense to apply. She used the analogy that the Tribunal would not be required to provide documents that relate to weather for example. In my view the same commonsense needs to apply with respect to the extra pastry documents. The two 9 page reference letters are identical even if there were additional pages being the extra pastry documents on the USB stick.

7. Ms Costello relied on Robertson J’s statement that “[t]he fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error” at [111] of Minister for Immigration and Citizenship v SZRKT [2013] FCA 317. I agree with Roberston J’s statements. The case before him was very different. Ms Costello says the documents need to be ‘important’ not ‘critical’ as referred to by the respondent. I find that the extra pastry documents were neither important nor critical. Ms Costello referred to other cases on this point include Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630. It is not necessary to set these out as I agree with the summations of the law. I do not find they apply in the circumstances of this case.

8. I do not accept the applicant’s submission that to consider whether or not the extra pastry documents could have made any difference to the outcome falls within the area of merits review. Given my findings is that the extra pastry documents could have made no difference to the outcome I do not accept the argument that the failure to provide the documents to the applicant amounts to a jurisdictional error. It could not be said that these documents provided a context to the issue being argued. Even if I am wrong about this it does not amount to a jurisdictional error because providing the extra documents could not make a difference to the outcome.

9. The applicant also argues that the Tribunal breached its obligations under section 362A. That section states that the applicant is entitled to have access to written material before the Tribunal subject to certain exceptions. I am satisfied that those exceptions do not apply in this case. The applicant also relies on the decision of Judge Driver of our Ahmed v Minister of Immigration & Anor [2015] FCCA 1038. At paragraph 31 Judge Driver states that section 362A is not dependent on the applicant making a request of access to documents. That is plain from the wording of this section. As the first respondent’s counsel points out the facts in Ahmed were very different. In that case the applicant had made a request for access which was denied. The documents which the applicant in Ahmed was not given access to were documents which contained adverse information. In this case Ms Kaur was given the documents containing the adverse information. The extra pastry documents could not have assisted her case.

10. The applicant would be in a stronger position if the she had not been provided with the redacted documents.

11. There certainly is merit in Ms Costello’s submission regarding access to documents. The difficulty with Mr Aleksov’s submissions on this point is, how can an applicant reasonably ask for access to documents if they do not know there are documents they could ask to have access to.  It is not necessary to determine this issue definitively because of my findings that these documents could not have affected the outcome.

12. Under ground 3 the applicant’s counsel complains that the applicant was not accorded procedural fairness and was not given the opportunity to meaningfully present her case because in circumstances where there were allegations of fraud it was not sufficient to put the adverse information to the applicant orally. Ms Costello complains that the procedural fairness letter did not provide an accurate summary of the CA documents. She also complains that the applicant received “the dense pile of partially redacted documents” two and a half years earlier. She says this does not cure the inaccurate summary.

13. It is clearly accepted by both counsel that it was the department who provided that the applicant with the redacted CA documents not the Tribunal. Given that the applicant had already been supplied with those documents there was no reason for the Tribunal to supply them again. The fact that she had received those documents over two years before the tribunal hearing or so in my view in the circumstances of this case does not put some sort of extra obligation on the Tribunal with respect to the section 359 notice. It is clear that the Tribunal to was referring to the CA documents. The applicant had been assisted by a migration agent and had ample opportunity to address the issues raised in those documents. One simple action would have been to make enquiries of the College as to whether they had any records of the applicant’s work experience.

14. Ground 3 is broken up into 6 sub-grounds. I will not repeat them as they are set out above.

15. Ground 3(a) cannot be sustained. The complaint that the Tribunal put matters to the applicant orally rather than in writing given the seriousness of the allegations cannot this sustained. The applicant was provided with the documents by the Department. There is no reason why the Tribunal should be obliged to supply those documents again.

16. Ground 3(b) complains that the information put to the applicant was incomplete and it did not identify weaknesses. The obligation of the Tribunal is to put the adverse information to the applicant. The applicant had the CA documents. The applicant had the assistance of a migration agent who was the same agent who assisted her with the proceedings before the delegate and the Tribunal. The applicant confirmed this at page 18 of the transcript.

17. In addition the second invitation letter sent to the applicant refers to the CA documents. It notes that CA has admitted to providing fraudulent work references. The central aspect of this complaint is that the Tribunal did not draw the applicant’s attention to Mr CA’s evidence that he had no way of knowing whether the students completed the 900 hours or not. The critical issue is the 900 hours. It is clear from the transcript and the Tribunal’s decision that it did not accept the applicant’s evidence nor that of Mr Ploumides that neither of them kept any records of the hours she worked despite them being so significant and important in order for her to obtain her visa.

18. The Tribunal member put the adverse information to the applicant and Mr Ploumidis orally. This starts at page 21 of the transcript. This is not the first time the applicant became aware of it as it is information from the CA documents.

19. Ground 3(c) can be quickly disposed of. There is no error in declining to hear the applicant give evidence about her work at the bakery as the Tribunal member made it clear he accepted that she worked at the bakery. The critical issue was whether or not she worked 900 hours.

20. Ground 3(d) can be similarly dismissed. The applicant was on notice that the Tribunal may find that she procure a false work reference. Again the critical issue is the 900 hours. The Tribunal accepted that she worked some hours at the bakery.

21. With respect to ground 3(e) this is not addressed in the written or oral submissions of the applicant.  The CA documents clearly refer to the relationship Mr Ploumidis had with Mr CA. The Tribunal’s decision at [59] refers to being aware of their relationship and makes reference to another case the Tribunal heard where Mr Ploumidis gave evidence.

22. Ground 3(f) complains that the Tribunal did not give the applicant information she was entitled to pursuant to s362A.

23. The applicant’s counsel referred to the fact that the Tribunal did not provide the CA documents to the applicant but the Department did. She complains that the documents were provided so long ago that Tribunal did not meet its obligations to put the adverse information to her sufficiently. She complains that the information the Tribunal put to the applicant was incomplete or in accurate. She sets out a lengthy paragraph from Dhillon’s case in her written submissions which refer to the particulars given to Mr Dhillon. This is not a useful comparison given the fact that Mr Dhillon was not given the CA documents whereas the applicant in this case was.

Ground 5

1. Counsel for the applicant placed much emphasis on section 362A and the requirements for the Tribunal to have regard to any information that is acquired when making its decision on review. She relies on the extra pastry documents that the Tribunal obtained. She argued that the issue is that the TRA had to assess the applicant’s work experience in deciding whether or not it was satisfied that she had completed 900 hours of work experience at Pastry Art and Design. The issue is whether or not the TRA’s assessment was based on a false or misleading statement. The Tribunal considered that if the work reference was false or misleading then it caused the TRA assessment to be a bogus document.

1. There is no evidence to suggest that the TRA carried out any assessment independently of relying on the work reference. The fact the TRA also spoke to her employer does not assist the applicant if the reference is false because the employer the TRA spoke to was Mr Ploumidis who also signed the reference letter.

2. The Tribunal listed the CA documents which included several work references including a work reference for the applicant. The applicant’s counsel Ms Costello placed much emphasis on the fact that the Tribunal received extra documents in answer to its request from the secretary of the Department of Immigration and Border Protection for any documents it had in its position with respect to the applicant’s work reference. That request appears at CB 182 and 183.

3. The reply appears at CB 185 to 194. That consists of a 9 page reference.

4. The Tribunal also issued a request to the TRA for documents in its possession. The TRA responded and attached the reference letters from Pastry Art Design submitted by the applicant. Ms Costello places much emphasis on the fact that included in those attachments was a letter from Mr Ploumedis addressed ‘[t]o whom it may concern’ stating that he was unable to answer his phone the night before but was reconfirming that Ms Kaur worked on a voluntary basis as a pastry cook from 2 February 2008 until 16 March 2009. Ms Costello points out that the letter appearing at page 197 of the court book is not identical to the material provided by the Department. There are also several pages appearing in addition to the nine page reference letter entitled Pastry Art Design Product List. The product list appears at CB 207 to 222.

5. The applicant’s counsel emphasized that the wording of section 359(1) referring to the Tribunal having discretion as to whether or not to request information. Having made that request it is required by the use of the word “must” to have regard to that information when making the decision on review.

6. Ms Costello argued that the Tribunal did not take into account the fact that the documents were not identical. She also argues that the Tribunal failed to take into account that the TRA verified the applicant’s experience by obtaining the short letter which she refers to as a verification letter in addition to the nine page reference. This cannot be sustained for the reasons set out the following paragraphs.

7. It is significant to note that the two nine page reference letters are identical. The ‘[t]o whom it may concern letter’ and the generic product list are additional documents produced pursuant to the Tribunal’s information request. It is difficult to see how these documents could have made any difference to the Tribunal’s decision. The product list does not advance matters. The short ‘[t]o whom it may concern’ letter is inconsistent with the nine page reference letter in terms of the dates the applicant worked at the bakery. The nine page letter refers to the period of 2 February 2008 until 16 January 2009. The short letter refers to 2 February 2008 to 16 March 2009. Even the inconsistency is not significant taking into account the difference in time referred to in the two documents and it is difficult to see how that could have impacted on the Tribunal’s decision.  It is also important to note that the short letter makes no reference to the applicant completing the necessary 900 hours of work experience. This is only referred to in the 9 page reference letter. Mr Ploumidis signed both letters.

8. The question I am being asked to determine is whether or not the omission of any reference to these additional documents is sufficient to have the effect of the Tribunal failing to comply with its obligation under section 359(1) amounting to a jurisdictional error with the result that the matter must be remitted back to the Tribunal.

9. It is not necessary for me to determine the issue as to whether or not the Tribunal is obliged to provide documents it obtains in the course of an enquiry to the applicant or whether it need only do so if the applicant seeks access to the documents because the additional pastry documents were incapable of making any difference to the outcome. The comments of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 apply here. The plurality said at [29] “The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal’s finding that their claims lacked the requisite Convention nexus.”

10. Not all errors are jurisdictional ones.

11. Ms Costello wished to make arguments about the Federal Circuit Court of Australia’s scale of costs with respect to disbursements in the event the applicant was successful. As the applicant’s application will be dismissed it is not necessary to consider this issue.

12. I will order that the applicant pay the first respondent’s costs.

I certify that the preceding eighty four (84) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  15 April 2016