KAUSHAL v Minister for Immigration
[2012] FMCA 1234
•20 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KAUSHAL v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1234 |
| MIGRATION – Application to review decision of Migration Review Tribunal – whether Tribunal erred in relation to whether Trades Recognition Australia was the relevant assessing authority for the applicant’s nominated occupation – whether Tribunal erred by failing to consider compelling or compassionate circumstances – whether failure to comply with s.359A of the Migration Act. |
| Education Services for Overseas Students Act 2000 (Cth), s.20 Legislative Instruments Act 2003 (Cth), s.12 Migration Act 1958 (Cth), ss.65, 97, 119, 359A, 360 Migration Amendment Regulations 2011 (No.1) (Cth) (SL 2011 No.13) Migration Regulations 1994 (Cth), reg.2.26B(1A), cll.485.221, 485.223, 485.224 and 487.223 of Schedule 2 |
| Burton v Minister for Immigration & Anor [2008] FMCA 576 Minister for Immigration and Citizenship v Brar and Another (2012) 201 FCR 240; [2012] FCAFC 30 Minister for Immigration and Citizenship v SZIZO and Others (2009) 238 CLR 627; [2009] HCA 37 Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed and Another (2005) 143 FCR 314; [2005] FCAFC 58 MZYHF v Minister for Immigration and Citizenship and Another (2010) 118 ALD 534; [2010] FCA 1250 SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 Singh v Minister for Immigration & Anor [2012] FMCA 145 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 SZMHD and Another v Minister for Immigration and Citizenship and Another (2009) 110 ALD 290; [2009] FCA 712 Zhang v Minister for Immigration & Anor [2012] FMCA 1011 |
| Applicant: | GAURAV KAUSHAL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2512 of 2011 |
| Judgment of: | Barnes FM |
| Hearing dates: | 27 July 2012 and 28 September 2012 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | A Kumar |
| Solicitors for the Applicant: | Harish Prasad & Associates |
| Counsel for the Respondents: | G Kennett SC |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2512 of 2011
| GAURAV KAUSHAL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Migration Review Tribunal dated 10 October 2011 affirming a decision of a delegate of the first respondent not to grant the applicant a Skilled (Provisional) (Class VC) visa (Class VC visa).
The Tribunal recorded that the applicant arrived in Australia in July 2007 as the holder of a student visa. On 26 November 2009 he applied for a Class VC visa. At the time of the visa application, that visa class contained two subclasses: Subclass 485 (skilled as graduate) and Subclass 487 (skilled as regional sponsored). The applicant sought to satisfy the criteria for the grant of a Subclass 485 visa. In the visa application he stated that he had completed a Certificate III course in Hospitality and an Advanced Diploma in Management. He nominated his occupation as cook, and enclosed a copy of a Trades Recognition Australia (TRA) Skills Assessment dated 2 April 2009 which assessed his skills as suitable for the occupation of cook. The skills assessment recorded that it was based on the applicant having completed necessary formal training requirements and 900 hours of directly related work experience.
On 20 July 2010 the Minister's delegate wrote to the applicant informing him that the results of an investigation conducted by the Department indicated that some of the information, in particular the work experience information he had provided to the Department of Education, Employment and Workplace Relations (DEEWR) to obtain a positive skills assessment, “may be false or misleading”. The delegate advised that the delegate was not satisfied that the applicant met the criteria in the then applicable cl.485.223 of Schedule 2 to the Migration Regulations 1994 (Cth) (which referred to evidence not having become available that the information given or used was false or misleading in a material particular.) The delegate stated that “information from a number of sources ha[d] indicated that the documentation [the applicant] provided to…obtain a positive skills assessment was fraudulently obtained”. The letter sought the applicant's comments. The applicant did not respond.
On 25 August 2010 the delegate decided to refuse to grant a Class VC visa to the applicant on the basis that he did not meet the requirements of cl.485.223. The delegate referred to a Departmental investigation in relation to work references from The Last Train to Bombay and found that information indicated that the applicant's work reference letter from this restaurant, provided to TRA to obtain his positive skills assessment, had been “fraudulently obtained” and that he did not complete the work experience claimed. The delegate was satisfied that evidence had become available that information given or used to obtain the skills assessment was false or misleading in a material particular.
The applicant sought review by the Tribunal on 25 August 2010. After his application to the Tribunal, but before it made its decision, cl.485.223 was repealed and cl.485.224 was amended to require, amongst other things, that at the time of the decision the applicant satisfied Public Interest Criterion 4020 (see Schedule 3 to the Migration Amendment Regulations 2011 (No.1) (Cth) (SLI No.13 of 2011 which commenced on 2 April 2011).
Public Interest Criterion 4020 (PIC 4020) relevantly requires that there is no evidence that the applicant has given or caused to be given “a bogus document or information that is false or misleading in a material particular” in relation to the visa application. The Minister may waiver the requirements of this provision if satisfied that compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident justify the granting of the visa (PIC 4020(4)(b)).
In the course of its review the Tribunal requested confirmation from TRA that the applicant's skills assessment had been revoked. On 4 July 2011 TRA advised the Tribunal that the applicant’s “successful skills assessment [had been] withdrawn on 6 January 2011 for providing fraudulent work experience documents from Last Train to Bombay restaurant” and that the applicant had been sent a letter in January 2011 to inform him that his application had been withdrawn.
On 5 July 2011 the Tribunal wrote to the applicant inviting him to comment on certain information and to provide information. In particular, he was invited to comment on information about the Departmental investigation indicating that the information he had provided to the TRA demonstrating 900 hours of work experience in The Last Train to Bombay was false and on the fact that his successful skills assessment had been withdrawn for providing fraudulent work experience documents. The applicant was also invited to provide a copy of his application to TRA, independent and verifiable evidence of his employment as a cook at The Last Train to Bombay, and any information relevant to a possible waiver of PIC 4020(1).
The applicant's solicitor/adviser replied to the Tribunal on 10 August 2011 and referred to the fact that the applicant had voluntarily taken part in an interview with DEEWR in relation to obtaining his TRA assessment and that he instructed that he had not been involved in submitting the skills assessment application to TRA, that he did not sign it and that he had not seen a copy of it.
It was claimed that the applicant had been unable to find work experience after completing his course, that a colleague had suggested it was possible to get the work experience, and that he paid $2,000 to this person, thinking that he was paying for a placement for work experience. When the applicant learnt that a TRA assessment had already been undertaken, he was said to be quite concerned that he had not undertaken the work. He claimed “pressure was applied on him and he was told that it was now too late for him to query it because he would find himself in jail”, so he did not withdraw his application. The adviser also made some submissions about the applicant's personal circumstances and submitted that he would suffer great financial hardship if the visa was refused.
Subsequently the Tribunal was provided with supporting letters from the applicant's employer and other persons, further information from his adviser and a letter from the applicant's girlfriend who claimed that they planned to marry once her divorce was finalised in January 2012. The adviser submitted that the Tribunal should take this information into account in finding there were compassionate or compelling circumstances affecting the interests of an Australian citizen.
The Tribunal decision
In its reasons for decision of 10 October 2011, the Tribunal set out the applicable legislation and referred to the fact that the applicant was seeking to satisfy the criteria for the grant of a Subclass 485 visa. The Tribunal initially suggested that the issue was the application of PIC 4020 but, as discussed below, ultimately made its decision on the basis that at the time of decision the applicant’s skills had not been assessed as suitable for his nominated skilled occupation and hence he did not meet cl.485.221.
The Tribunal outlined the applicant's claims and evidence, including evidence given at a Tribunal hearing on 6 October 2011. It recorded that at the hearing the applicant had advised that he did not have a current skills assessment. He repeated the claims that had been made by his adviser. When invited to speak about compelling circumstances, he referred to his relationship with his girlfriend of seven months and the fact that they had been living together for six months, and claimed they planned to marry after she obtained a divorce. He also referred to his employment in Australia and to assistance he provided to family members.
In its findings and reasons the Tribunal stated that one of the issues before it was whether the applicant's skills had been assessed by the relevant assessing authority as suitable for his nominated skilled occupation as required by cl.485.221(1).
The Tribunal recorded that when making the application the applicant had nominated the occupation of cook, which was a skilled occupation specified in Instrument IMMI 11/068, for which the relevant assessing authority specified in that instrument was TRA.
The Tribunal referred to the fact that the applicant had initially provided a skills assessment issued by TRA in April 2009, but that TRA had informed the Tribunal on 4 July 2011 that the skills assessment had been withdrawn because the applicant had provided fraudulent work experience documents from The Last Train to Bombay restaurant. The Tribunal stated that the applicant had not provided any evidence to indicate that TRA had issued him with any other skills assessment for his nominated occupation. He had informed the Tribunal at the hearing that he did not currently have a skills assessment for his nominated occupation from the relevant assessing authority.
The Tribunal addressed the applicant's suggestion at the hearing that he would be able to apply for another skills assessment, as he had now completed additional work experience. However the Tribunal decided that to the extent that this constituted a request for time to undertake a skills assessment, it would not grant the applicant more time. It had regard to the fact that TRA had revoked its assessment some 10 months before the Tribunal decision and that the applicant had been informed of this. Hence he had been aware for 10 months that he did not have a valid skills assessment for his nominated occupation. In addition, the Tribunal had written to the applicant on 5 July 2011 identifying the absence of a skills assessment as a relevant and adverse consideration. However the applicant had taken no steps to undertake a skills assessment in circumstances where he was represented by a registered migration agent and would have been aware of the requirement to hold a valid skills assessment. The Tribunal was of the view that “the applicant had ample opportunity to obtain the skills assessment, or at least to initiate the process to obtain the skills assessment”. The Tribunal proceeded to make its decision on the material before it.
The Tribunal concluded that, having regard to the advice from TRA, it was not satisfied that at the time of the decision the applicant's skills had been assessed as suitable for his nominated skilled occupation by the relevant assessing authority. It was not satisfied that the applicant met cl.485.221(1), and hence cl.485.221. For the same reasons the applicant did not meet cl.487.223, applicable to Subclass 487. Thus the Tribunal found it unnecessary to consider whether the applicant met PIC 4020. The Tribunal affirmed the decision not to grant the applicant a Class VC visa.
This application
The applicant sought review by application filed in this court on 4 November 2011. At the time of preparation of pre-hearing submissions and on the first hearing date of 27 July 2012 the applicant sought to rely on a further amended application filed on 13 July 2012. However in the course of the hearing it became apparent that ground one of the further amended application did not reflect the oral submissions of counsel for the applicant. I gave leave to the applicant to file a further further amended application, reformulating ground one to reflect the oral submissions of counsel for the applicant, in order to clarify the precise basis on which it was asserted that there was a jurisdictional error. I also made orders for the first respondent to file and serve written submissions in relation to any such reformulated ground one, once it was clear what that ground was intended to encompass, and for the applicant to file and serve written submissions in reply.
The applicant filed a further further amended application on 3 August 2012. However he added to ground one, rather than reformulating it. The first respondent filed written submissions addressing this extended ground one, making the point that while some six arguments could be discerned in ground one as reformulated, only one of them reflected the argument that had actually been advanced by counsel for the applicant at the hearing on 27 July 2012. Despite this, counsel for the first respondent addressed the possible arguments he discerned in ground one. The applicant's written submissions in reply did not clarify the intended scope of ground one.
In circumstances where it appeared from the further further amended application and the post-hearing submissions that the reformulated ground one went well beyond, and in some respects might be seen as contrary to the arguments that had been advanced for the applicant at the hearing, I listed the matter for further hearing to enable counsel for the applicant to clarify the arguments which he sought to maintain in relation to ground one. Counsel for each of the parties had the opportunity to address such issues.
After the hearing the solicitors for the applicant wrote to my associate (providing a copy to the solicitor for the first respondent) stating that they had been advised by Mr Kumar of counsel that he had overlooked replying to a particular issue raised by Mr Kennett SC for the first respondent. I have also had regard to this additional submission as there was no objection by the first respondent.
There are three grounds in the further further amended application. Grounds two and three are the same as the grounds in the further amended application.
Issues in relation to TRA
The further further amended application filed on 3 August 2012 added two sentences to the end of ground one as well as particular (d). Ground one is as follows:
The Tribunal misconstrued s 97 of the Migration Act 1958 and PIC 4020 in the circumstances where another person had given the TRA document to the First Respondent’s delegate; committing jurisdictional error in its consideration. The Tribunal erred in concluding that Trade Recognition Australia (TRA) was the relevant assessing authority for the occupation of Cook in respect of the decision that was being reviewed when it should have found that TRA acted outside its power as it did not have the relevant authority to assess and such assessment could not have been provided to the delegate and should have found that the delegate had erred when it found that TRA was the relevant assessing authority. The Tribunal should have found that Instrument 11/068 came into effect on 28 September 2011 and was not in effect at time of the making of the MRT review application although in force at the date of making its decision on 10 October 2011 ought to have found that the criteria could not be met remitting the matter to the delegate to determine the application in accordance with the law (and not reviewed a decision owing to the delegate’s jurisdictional error was not a decision at all). The Tribunal failed to consider the effect of the instrument Immi 11/068 coming into effect after filing of the review application; the Applicant was denied procedural fairness/natural justice when the Tribunal failed to take this into account and/or denying the Applicant opportunity to address and/or making allowance for commencement of instrument Immi 11/068 in its decision.
Particulars
(a)In respect of the decision under review, the Tribunal committed jurisdictional error as Trade Recognition Australia or no other person or body had been approved in writing by the Education Minister or the Employment Minister for the purpose of reg.2.26B(1A), to be the relevant assessing authority for the occupation of Cook.
(b)The Tribunal erred in failing to determine at what the instrument IMMI 11/068 for the purpose of reg.2.26B(1), relevantly specifying Trade Recognition Australia to be the relevant assessing authority for the occupation of Cook, came into force and was valid (coming into effect on 28 September 2011).
(c)Without a validly approved and specified (reg.2.26B(1) and (1A)) relevant assessing authority for the occupation of Cook; cls 485.221 and 487.223 was not capable of being met by the Applicant in respect of the decision at the time the matter was before the delegate and the Applicant denies that IMMI 11/068 is capable of retrospective application.
(d)The Application ought to have been considered under IMMI 11/068 by the delegate. The TRA was not the assessing authority when the matter was before the delegate.
As a preliminary point I note that insofar as the applicant contended (in paragraph [9] of his pre-hearing submissions) that the delegate had refused the visa application on the basis that the applicant had not provided an assessment from the relevant assessing authority, that was not the basis for the delegate’s decision. Rather, the delegate refused the visa application on the basis that the applicant did not meet the requirement of the then applicable criterion in cl.485.221, because the delegate was satisfied that evidence had become available since the time of the application that the information (a work reference from The Last Train to Bombay) given or used to obtain the skills assessment mentioned in cl.485.221(1) was false or misleading in a material particular. The delegate also found that the applicant did not meet the equivalent criterion in cl.487.223 in relation to Subclass 487.
Further, insofar as it was contended that at the time of the visa application the applicant was required (pursuant to both cll.485.214 and 485.221) to submit an assessment of his skills for the nominated occupation, cl.485.221 is a time of decision criterion and not a time of application criterion. It requires that the skills of the applicant for the nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation at the time of decision. The Tribunal made its decision on the basis that it was not satisfied that at the time of the decision the applicant’s skills had been assessed as suitable for the nominated skilled occupation by the relevant assessing authority and hence that he did not meet cl.485.221.
It is relevant to note that cl.485.224 is also a time of decision criterion. At the time of the Tribunal decision it required the applicant to satisfy certain public interest criteria, including PIC 4020 which, relevantly, allowed for waiver of its requirements in certain compassionate and compelling circumstances. While the Tribunal outlined the requirements of PIC 4020 (which refers to an absence of evidence that the applicant has given bogus documentation or information that is false or misleading in a material particular) as an issue and raised its application at the hearing, in fact it made its decision on the basis of the criterion in cl.485.221 (and the equivalent criterion in cl.487.223) and hence found it unnecessary to consider whether the applicant met PIC 4020.
Insofar as ground one relies on an alleged misconstruction of PIC 4020 (and s.97 of the Migration Act 1958 (Cth)), as indicated further below in relation to ground two, the Tribunal did not make any finding of non-compliance by the applicant with PIC 4020(1) and its decision did not rely on any such non-compliance.
In pre-hearing written submissions the applicant appeared to rely on a contention that TRA had not been validly specified as a relevant assessing authority at the time the visa application was made and was before the delegate. The applicant initially contended that the Tribunal erred because there was no entity approved in writing by the Education Minister or the Employment Minister for the purpose of reg.2.26B(1A) of the Migration Regulations to be the relevant assessing authority for the occupation of cook at the time of the delegate’s decision as IMMI 11/068 did not come into effect until 28 September 2011 (in fact IMMI 11/068 commenced on 1 October 2011). It was submitted that the Tribunal should have found that the delegate had erred when he or she found that TRA was the relevant assessing authority.
It was submitted that the Tribunal ought to have found that the applicant could not at any time when the application was before the delegate have satisfied the requirements to provide a skills assessment and that it committed a jurisdictional error in failing to address this issue.
It was also said that the Tribunal erred in having regard to the advice from TRA dated 4 July 2011 advising of the withdrawal of the skills assessment on 6 January 2011.
There was no explanation in the applicant’s written submissions of how such circumstances supported the claim that the Tribunal misconstrued s.97 of the Migration Act (the section that contains the definition of “bogus document”) and PIC 4020.
At the hearing Mr Kumar for the applicant contended that prior to 28 September 2011 the applicant could not have “put in an application” because TRA was not the relevant assessing authority. At first Mr Kumar appeared to suggest that the applicant could not have made a visa application, but he subsequently explained that his contention was that the applicant could not have provided the delegate with a skills assessment prior to 28 September 2011. However the applicant’s concern was then said to be that TRA was not the relevant assessing authority until IMMI 11/068 was in place and that, as the Tribunal’s decision was made on 10 October 2011, essentially he had only two weeks within which to comply with the requirement in cl.485.221 that his skills had been assessed. It was submitted that the Tribunal had to have regard to the fact that the specification of TRA had occurred only approximately two weeks before its decision.
As indicated, having regard to the difference between the written and oral submissions for the applicant and the lack of clarity in ground one, the applicant was given the opportunity to file and serve a further further amended application containing a reformulated ground one raising the ground addressed at the hearing and the first respondent was given an opportunity to address such reformulated ground. However the further further amended application subsequently filed contained an expanded ground one.
As the first respondent pointed out in post-hearing submissions in response to the further further amended application, some six arguments can be discerned in ground one, notwithstanding that only one of them reflects the argument advanced for the applicant at the hearing. Nonetheless, the first respondent addressed each of these possible arguments. The applicant had an opportunity to respond both in writing and at the adjourned hearing.
The applicant did not take issue with the first respondent’s characterisation of the six arguments that could be discerned in ground one or suggest that there were any other arguments raised by ground one as formulated in the further further amended application. Hence it is appropriate to consider this ground by reference to the issues outlined in the first respondent’s further written submissions.
(i) Whether the Tribunal “misconstrued s 97 of the Migration Act 1958 and Public Interest Criterion 4020”
This argument was in ground one as originally formulated. It was not pressed by the applicant on the first hearing date, although he subsequently sought to maintain it.
In any event, as indicated above, the Tribunal did not make any finding of non-compliance by the applicant with PIC 4020(1). Its decision did not rely on any such non-compliance. Section 97 includes the definition of “bogus document” (an expression which appears in PIC 4020) but is irrelevant in the absence of any reliance on PIC 4020 by the Tribunal in its findings and reasons. It has not been established that the Tribunal misconstrued s.97 of the Migration Act and/or PIC 4020 in a manner constituting jurisdictional error.
(ii) Whether the Tribunal “erred in concluding that TRA was the relevant assessing authority for the occupation of Cook in respect of the decision that was being reviewed when it should have found that TRA acted outside its power”
Insofar as this aspect of ground one may be seen as involving a contention that IMMI 11/068 did not apply to the Tribunal’s consideration of the visa application (in particular in relation to the time of decision criterion in cl.485.221) at the first hearing counsel for the applicant accepted that IMMI 11/068 applied to the Tribunal’s consideration of the application. It was also accepted that TRA was the relevant assessing authority for the purposes of the Tribunal’s decision at the time of its decision.
Insofar as the applicant now maintains any contention that TRA was not the relevant assessing authority at the time of the Tribunal’s decision, such contention was not explained in any detail (cf the arguments considered in Zhang v Minister for Immigration & Anor [2012] FMCA 1011). In any event, such claim is not made out. It has not been established that at the time of the Tribunal’s decision TRA had not been validly designated as a relevant assessing authority for the purpose of any decision to be made on the applicant’s visa application by virtue of the operation of IMMI 11/068.
It appears that the applicant’s main contention in this respect is that IMMI 11/068 did not have retrospective effect and, in particular, was not in force at the time of the visa application. These arguments appear to be based on the concession in Singh v Minister for Immigration & Anor [2012] FMCA 145 to the effect that at the time of the Tribunal decision in that case, TRA had no relevant function as it has not been approved as an assessing authority by the Education Minister or the Employment Minister as required under reg.2.26B of the Migration Regulations, although the applicant did not address this argument in any detail.
The date on which the Tribunal’s decision was made distinguishes this case from the circumstances before Driver FM in Singh where no relevant assessing authority had been validly specified at the time of the Tribunal decision. The fact that it came into effect after the delegate’s decision does not mean that the instrument was incapable of applying in relation to time of decision criteria for the visa.
Indeed, in the applicant’s reply to the first respondent’s further written submissions, he conceded that IMMI 11/068 specified TRA as the relevant assessing authority from 28 September 2011, the day it was signed. In fact it would appear that IMMI 11/068 was operative from the day of commencement, being 1 October 2011 (see s.12 of the Legislative Instruments Act 2003 (Cth)).
The Minister accepted for the purpose of this decision that the Instrument purportedly in force specifying TRA prior to the commencement of IMMI 11/068 did not comply with the requirements of reg.2.26B of the Regulations. However no such issue was raised in relation to IMMI 11/068. It does not purport to operate in a retrospective manner to alter the legal character of things done in the past, such as the validity of a visa application. Rather, it purports only to apply for the purpose of things done in the future, such as assessments and the making of decisions on visa applications not finally determined at the time it came into effect. The fact that the Instrument applies in relation to a person who applied for a visa before 1 July 2010 does not indicate a purported retrospective application.
The applicant did not fully develop his argument in this respect, but insofar as he referred to the applicability of the time of application criterion in cl.485.214 (that an applicant must have applied for an assessment of his skills for his nominated skilled occupation “by a relevant assessing authority”) this criterion was not in issue before the Tribunal. Rather, what was in issue was whether, as required under cl.485.221, at the time of the Tribunal’s decision the applicant’s skills for the nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation. Moreover, even if cl.485.214 was not capable of application at the time of the visa application that does not render cl.485.221 inoperative at the time of decision.
As Smith FM pointed in Hu and Another v Minister for Immigration and Citizenshipand Another (2007) 214 FLR 296; [2007] FMCA 1710 at [27]:
It is then open to the Minister when making regulations, to specify whether a pending visa application must satisfy criteria as they in fact stand at the time of decision, or as they might have stood in earlier versions of the regulations.
Similarly, it was open to the Minister to specify a relevant assessing authority for the purposes of determination of whether a time of decision criterion was subsequently met and for the Tribunal to consider at the time of decision whether there was a skills assessment by TRA. This did not involve a retrospective operation of IMMI 11/068.
If it was intended to be contended that the fact that TRA was not the relevant assessing authority prior to the commencement of IMMI 11/068 meant that the instrument was given retrospective operation because there had previously been a skills assessment by TRA, that is not the case.
It has not been established that the lodgement of the visa application at a particular time crystallised any legal right to have the application assessed according to particular criteria. All that was acquired was a right to have the application considered according to the Migration Act. This would entail consideration according to the criteria in force when the decision was made. IMMI 11/068 did not purport to change the content of an existing right or otherwise to operate retrospectively.
Further it was not necessary for the Tribunal to consider whether TRA acted outside its power either when it accepted the skills assessment application, considered it or withdrew it for the purposes of determining whether at the time of the Tribunal decision the applicant’s skills had been assessed by TRA as suitable for the nominated occupation of Cook. Nor was it necessary for it to make a finding as to the date on which IMMI 11/068 came into effect. It made a finding as to the effect of IMMI 11/068 as at the time of its decision in that it recognised (correctly) that TRA was the relevant assessing authority specified in the instrument for the nominated occupation of Cook.
No jurisdictional error is made out on this basis.
(iii) Whether the Tribunal “should have found that the delegate had erred when it (sic) found that TRA was the relevant assessing authority”
Counsel for the applicant advised that this aspect of ground one was not pressed. In any event, the delegate’s error in proceeding on the basis that TRA had been designated as the relevant assessing authority did not deprive the Tribunal of jurisdiction to review the delegate’s decision on its merits (see for example, Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed and Another (2005) 143 FCR 314; [2005] FCAFC 58 at [33]).
As the first respondent submitted, any error of law by the delegate would not itself be relevant to that review. The Tribunal did not err by failing to analyse the delegate’s decision in those terms. Rather, the issues arising on the review were to be determined by the Tribunal on the basis of the material before it and the applicable law at the time of its decision (Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31). No jurisdictional error is established on this basis.
(iv) Whether the Tribunal “ought to have found that the criteria could not be met remitting the matter to the delegate … (and not reviewed a decision [which] owing to the delegate’s jurisdictional error was not a decision at all)”
The applicant pursued this aspect of ground one notwithstanding that it was not addressed in oral submissions.
Insofar as it involves a suggestion that an error by the delegate affected the jurisdiction of the Tribunal, such claim is not made out. As indicated, any such error would not deprive the Tribunal of jurisdiction to review the delegate’s decision on its merits.
The contention that “the criteria could not be met” (apparently on the basis that TRA was not validly specified prior to the coming into effect of instrument IMMI 11/068) appears to address time of application criteria or the position at the time of the delegate’s decision. As set out above, this contention does not establish jurisdictional error on the part of the Tribunal. What was in issue for the Tribunal was whether the applicant could satisfy the criterion in cl.485.221 at the time of the Tribunal decision, not at some earlier date. As indicated above, by the time of the Tribunal decision TRA was validly designated as the relevant assessing authority for the nominated occupation of Cook for the purpose of any decision to be made on the applicant’s visa application.
There is no basis for the suggestion that the Tribunal should have remitted the matter to the delegate. The basis for such contention was not explained. As the first respondent submitted, it is without foundation. The Tribunal had jurisdiction to determine for itself whether the applicant met the relevant criteria for the grant of the visa.
No jurisdictional error is established on this basis.
(v) Whether the Tribunal “failed to consider the effect of the instrument IMMI 11/068 coming into effect after filing of the review application”
This aspect of ground one appears to reflect the argument advanced for the applicant at the first hearing.
However as the first respondent indicated in written submissions, the applicant’s submissions do not appear to involve any contention that the Tribunal was under a duty to exercise any of its procedural powers in a particular way (for example, to adjourn its review). Rather, it appears to be contended that the recent commencement of IMMI 11/068 should have been given some weight in the Tribunal’s decision.
However the grant or refusal of a visa under s.65 of the Migration Act does not involve an exercise of discretion such as to warrant such an approach. The only question for the Tribunal was whether the criteria applicable to the relevant class of visa were met. The criterion which the Tribunal regarded the applicant as not having met (in cl.485.221) did not call for any exercise of judgment about the reasons why the applicant did not have a relevant skills assessment.
The fact that IMMI 11/068 had come into operation only shortly before the Tribunal decision did not impose any particular procedural obligation on the Tribunal. It is notable that the Tribunal was not asked by the applicant’s adviser to take any action on this basis. Moreover it considered whether the applicant should be given further time to obtain a skills assessment, despite the fact that he had not taken any action to do so in the previous 10 months. No lack of procedural fairness has been established insofar as this was intended to be raised by the applicant.
It has not been established that the applicant was put at any disadvantage or subjected to any unfairness by the commencement of IMMI 11/068 such as to support any argument that the Tribunal was required to do anything other than make a decision. As the first respondent submitted, the designation of TRA as the relevant assessing authority with effect from 1 October 2011 did no more than bring the statutory provision into line with the basis on which the applicant had been proceeding since before he lodged his visa application. He had obtained a skills assessment from TRA and lodged it on the basis that he would meet the relevant criteria. He did not attempt to argue that the process was otiose when confronted with information to the effect that his assessment had been fraudulently obtained.
At the adjourned hearing Mr Kumar suggested that this aspect of ground one was addressed in paragraphs [6] and [7] of his post-hearing submissions in which he contended that the recent coming into effect of instrument IMMI 11/068 was a matter the Tribunal had not raised with the applicant at the hearing and that this was an issue of procedural fairness and/or natural justice. In this context, it also appeared to be contended that PIC 4020 came to the aid of the applicant’s situation.
However insofar as a claim of a denial of procedural fairness is raised in this respect, such a claim fails on a factual level in the absence of a transcript of the Tribunal hearing. In any event, at paragraph [24] of the Tribunal reasons for decisions, the Tribunal recorded that it raised with the applicant the issue that he needed and did not have a current skills assessment from the relevant assessing authority for the nominated occupation.
If the substance of the applicant’s complaint is that the Tribunal did not raise with him and ask him to comment on the fact that the instrument had only just come into effect, again there is no factual basis for such a contention in the absence of a transcript of the Tribunal hearing to establish that anything was not said in this respect. Furthermore, it is not apparent that this would be information that would have to be put to the applicant pursuant to s.359A of the Migration Act (beyond the manner in which the Tribunal raised with the applicant the fact that he may not satisfy cl.485.221 in the absence of a skills assessment). The fact that IMMI 11/068 had only just come into effect (that is, the timing of its operation) was not the reason or part of the reason for affirming the decision under review. It has not been established that there was any denial of procedural fairness in the Tribunal failing to raise this issue with the applicant. This aspect of ground one is not made out.
Insofar as the issues raised in this part of ground one overlap with the sixth issue identified by the first respondent, it is also addressed further below.
(vi) Whether the Tribunal denied the applicant “procedural fairness/natural justice when the Tribunal failed to take [the time IMMI 11/068 came into effect] into account and/or denying the Applicant the opportunity to address [the issue] and/or making allowance for the commencement of instrument Immi 11/068 in its decision”
Insofar as the argument in this respect is that the Tribunal should have made some allowance for the recent commencement of IMMI 11/068, as discussed above this does not raise any issue of a lack of procedural fairness in the circumstances of this case.
If the argument is that the applicant was denied the opportunity to make submissions on this issue, as the first respondent submitted, the recent commencement of the instrument was not relevant to the review by the Tribunal and would not require that the applicant be given the opportunity to comment. No obligation to canvass it arose under s.360 of the Migration Act or indeed under the general law. Furthermore, there is no evidence of the applicant having been denied the opportunity to raise this issue. Indeed the applicant did raise the prospect of seeking a new skills assessment. The Tribunal considered this as an adjournment request, but declined to delay its decision. No jurisdictional error has been established in its consideration of such request.
After the adjourned hearing, the solicitor for the applicant wrote to my associate advising that Mr Kumar had overlooked a submission in reply which he wished to make. In the absence of any objection from the solicitor for the first respondent (who was copied into this email) I have considered this contention. It is as follows:
Mr Kumar advised that he overlooked to reply Mr Kennett SC’s contention in his oral submissions today that PIC 4020 did not apply as the Tribunal did not make a finding that the TRA assessment was fraudulent. In reply to Mr Kumar still submits that PIC 4020 had application before the Tribunal (as his written submissions state at paragraphs 7 – 9); in the Applicant’s case as it was a revocation of TRA assessment case owing to alleged to be fraudulent document (CB 58). How the Tribunal characterised the absence of TRA assessment before it, there was an issue of fraudulent document (although not given by the Applicant) before the Tribunal and re-iterates his submissions as to the application of PIC 4020. Mere statement of the evidence another way does not change the evidence as it was the Tribunal and the delegate [sic].
Notwithstanding the lack of clarity in this submission, it appears that Mr Kumar maintains his contention that PIC 4020 had to be considered by the Tribunal because the skills assessment had been withdrawn by TRA. However as indicated above, because the Tribunal was satisfied that the applicant did not meet another of the criteria for the class of visa for which he applied, it was not necessary for it to also consider whether the applicant met any of the other applicable criteria (including the criterion in cl.485.224 which required that at the time of the decision the applicant satisfied PIC 4020).
In particular no obligation to consider either PIC 4020 or the recent commencement of IMMI 11/068 arose by virtue of the fact that one of the criteria for the visa in question required the Tribunal to be satisfied that an applicant met PIC 4020 or because compliance with that criterion could be waived in compassionate or compelling circumstances where such criterion was not the basis for the Tribunal’s decision.
None of the bases for ground one relied on by the applicant in the further further amended application have been established.
Whether the Tribunal erred in failing to consider compelling and/or compassionate circumstances under PIC 4020
Ground two in both the further amended application and further further amended application is as follows:
The Tribunal committed jurisdictional error by misconstruing s97 of the Migration Act 1958 and PIC 4020, by failing to consider compelling and/or compassionate circumstances under PIC 4020 in the circumstances where another person had given the TRA document, a provision it was bound to consider.
Particulars.
The Tribunal states at MRT decision [CB102] p7 at [36]: “It is thus unnecessary to consider whether the applicant meets PIC 4020”. The Tribunal failed to consider PIC 4020 in respect of the Applicant. The Tribunal misconstrued s97 of the Migration Act 1958 and PIC 4020.
Notwithstanding the reference to s.97 of the Migration Act (which is merely a definition section that contains the definition for “bogus document”) the essence of ground two appears to be a contention that the Tribunal was under an obligation to consider PIC 4020 and in that context to consider compelling and/or compassionate circumstances. This contention appears to be put on the basis that according to the applicant, some other person had given TRA his skills assessment application. Issue was also taken with the fact that while the applicant had advanced various bases on which consideration ought to have been given to compelling and/or compassionate circumstances, the Tribunal had merely found that it was unnecessary to consider whether the applicant met PIC 4020.
Counsel for the applicant submitted that to the extent that the Tribunal considered the TRA assessment, PIC 4020 was engaged (because it referred to information given to a relevant assessing authority) and that an inference could be drawn that the Tribunal found the information given to TRA in obtaining the assessment was misleading in a material particular. It was submitted that the Tribunal committed a jurisdictional error:
... by misconstruing analogous requirements of s97 of the Migration Act 1958 and PIC 4020 by failing to consider compelling and/or compassionate circumstances…
It also appears to be submitted that the Tribunal erred in determining that it was unnecessary to consider whether the applicant met PIC 4020, because it was said to have conducted its review on the basis that PIC 4020 was relevant, but then substantially changed the basis of the decision.
In oral submissions it was acknowledged that the Tribunal made a finding based on there being no evidence of a skills assessment by TRA before it, as the assessment had been withdrawn. However it was suggested that although there was evidence before the Tribunal as to whether or not there were compelling or compassionate circumstances within PIC 4020(4), the Tribunal had "opted" not to consider this.
The applicant submitted that it was relevant that the instrument (IMMI 11/068) specifying TRA as the relevant assessing authority for the occupation of Cook had only come into effect shortly before the Tribunal decision and that the Tribunal was aware that the previous assessment had been withdrawn. It was contended that on the information before it, in circumstances where the instrument specifying TRA as the relevant authority had just come into force, the Tribunal should have considered whether there were compassionate and compelling circumstances on the basis that such exceptions were to be interpreted in a beneficial way in favour of the applicant.
The short answer to this ground is that the Tribunal affirmed the decision not to grant the applicant the visa because he failed to meet one of the applicable time of decision criteria (cl.485.221). This criterion required that at the time of the decision the applicant’s skills had been assessed as suitable for the nominated skilled occupation by the relevant assessing authority. In circumstances where the Tribunal found that the applicant failed to meet one of the applicable criteria, it was not a jurisdictional error for it to fail to consider whether he would meet any or all of the other applicable criteria. In particular, it was not necessary for the Tribunal to consider whether the applicant met cl.485.224 (which required, among other things, that at the time of the decision the applicant satisfied PIC 4020).
The fact that the delegate considered this issue, that submissions were made to the Tribunal in this respect, and that in the early part of its reasons for decision the Tribunal referred to PIC 4020 as in issue does not establish jurisdictional error on its part. The Tribunal did not place any reliance on the criterion which brought PIC 4020 into play. Hence it was not necessary for it to consider whether any or all of the requirements of PIC 4020(1) should be waived on the basis of compassionate or compelling circumstances.
While compelling or compassionate circumstances of the kind mentioned in PIC 4020(4) might result in a waiver of PIC 4020(1), they do not have any broader relevance. Absent any finding by the Tribunal of non-compliance with PIC 4020(1), the possible existence of such circumstances was irrelevant and did not have to be considered by the Tribunal. The Tribunal was not obliged to and did not make any finding of non-compliance by the applicant with PIC 4020(1) in its findings and reasons and did not rely on any such non-compliance.
Ground two is not made out.
Section 359A of the Migration Act
Ground three in both the further amended application and the further further amended application is as follows:
The Tribunal committed jurisdictional error when it failed to comply with and provide clear particulars [pursuant to S359A(1)(a), (b) and (c)] of the Act, when it stated at CB100 at [25] “... The Tribunal noted that the DIAC investigation suggested that he did not perform the 900 hours work experience as a cook at that restaurant...” linking other 37 applicants and Mr Virk on s359A letter at CB 64 which detail has not been provided to the applicant (and in circumstances where the Applicant stated that he had not submitted papers for TRA assessment) or alternatively breached s360 of the Act.
Particulars
No document was given to the Applicant in respect of the two (second and third) of the three dot points in the s359A letter appearing at CB 64 or any information on other 37 applicants (or hearing on that issue); TRA assessment the main basis of (sic) which the decision turned.
The information provided to the applicant by the Tribunal in its letter of 5 July 2011 was as follows:
The particulars of the information are:
·You applied for a Class VC visa on 26 November 2009. You enclosed with your application a copy of the TRA assessment advice indicating that you were successful in the assessment of your skills for the occupation of a cook. The advice indicates that the assessment was based on your formal qualifications in addition to 900 (sic) work experience.
·Investigations carried out by DIAC staff indicate that the information you provided to the TRA demonstrating 900 hours work experience in the Last Train to Bombay was false.
· On 30 June 2011 the Tribunal received information from DIAC concerning the investigation into the Last Train to Bombay. It indicates that on 5 February 2010 an interview was conducted with Mr Virk, the owner of the Last Train to Bombay, who confirmed that all his staff were paid cash in hand and were provided with a weekly payslip and a group certificate. Mr Virk was shown a list of 38 applicants who claimed to have completed 900 hours work experience at The Last Train to Bombay restaurant. Mr Virk identified 7 people who had completed work experience in his restaurant and had been provided with employment references. On 9 February 2010 Mr Virk attended the office of DEEWR and was interviewed by DEEWR staff and he again identified 31 applicants who provided false references.
This information is relevant because it may cause the Tribunal to find that you had given, or caused to be given, to the Minister, an officer, or the relevant assessing authority, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa. If the Tribunal so finds, the Tribunal may not be satisfied that you meet Public Interest Criterion (PIC) 4020 and cl.485.226. You may then not meet the requirements for the grant of the visa for which you have applied.
·On 4 July 2011 TRA informed the Tribunal that your successful skills assessment was withdrawn on 6 January 2011 for providing fraudulent work experience documents from Last Train to Bombay restaurant. TRA advised that you were sent a letter in January 2011 to advise you of the withdrawal.
·This information is relevant because the Tribunal may not be satisfied that you meet cl.485.221 which, relevantly, requires that the skills of the applicant for the applicant's nominated skilled occupation be assessed by the relevant assessing authority as suitable for that application.
The applicant was invited to comment on or respond to this information in writing. He did so through his adviser.
The applicant submitted that while the Tribunal stated that it had sought information from TRA, it failed to put “all” the information it obtained to the applicant for comment. In particular, it was contended that insofar as TRA had relied upon information from a Mr Virk in withdrawing the assessment, no document had been provided to the applicant regarding Mr Virk's assertions. It was said that the information in this respect was inadequate and simply asserted the position adopted by TRA and by the Tribunal.
As discussed below, reliance was placed on Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 (at [25]). This case related to notification obligations under s.119 of the Migration Act. Somewhat confusingly, Mr Kumar submitted that Zhao was a case in which the Full Court of the Federal Court had “considered the need for information in the in relation (sic) section 359A letter”. It was submitted that the Court made a finding that a s.359A letter was neither particular nor adequate because the letter did not “fairly inform the visa holder of the basis upon which the cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open”. Counsel for the applicant also submitted that this had been considered to be the proper construction of s.359A in Chen v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 142 FCR 257; [2005] FCA 229 at [62], and that the decision in Minister for Immigration and Citizenship v Brar and Another (2012) 201 FCR 240; [2012] FCAFC 30 was distinguishable “as the decision and other documents were not provided by the Applicant but sought by the Tribunal from the first respondent”.
The applicant submitted that the information put to him for comment was inadequate because while the s.359A letter referred to an investigation, a number of matters and an interview with Mr Virk (the owner of The Last Train to Bombay), no document was given to him in respect of the investigation or interview. Nor was there any information on the “other 37 applicants”. This was said to be information the Tribunal considered would be part of the reason for affirming the decision under review in circumstances where the TRA assessment was said to be the main basis on which the delegate’s decision turned.
It was also submitted that the s.359A letter did not say that the applicant had “done anything” or whether he was one of the persons included in the group of people with false references or those who had completed work experience referred to in Mr Virk's evidence. Hence it was said that the necessary level of particulars had not been provided under s.359A (see Chen at [61] – [64]). It was submitted that the Tribunal committed jurisdictional error when it failed to provide clear particulars in breach of s.359A of the Migration Act.
In oral submissions Mr Kumar submitted that the Tribunal had failed to comply with both subss.359A(1)(a) and 359A(1)(b) of the Migration Act because the letter did not give clear particulars of any information it considered would be the reason or part of the reason for affirming the decision under review and the Tribunal did not ensure as far as reasonably practicable that he understood why the information was relevant to the review. It was clarified that it was not being submitted that the Tribunal should have given the applicant information about all of the people to whom Mr Virk referred, but it was contended that the Tribunal had to inform the applicant whether he belonged to the group who had provided false references or those who had completed work experience and had been provided with references. The applicant submitted that it was unclear what the s.359A letter was seeking from the applicant, who was said to have advised the delegate that he had not given or caused to be given a bogus document to DEEWR.
However in oral submissions counsel for the applicant conceded that it was not necessary that the applicant actually be provided with documents, as distinct from clear particulars of information.
It was also said to be relevant that at the time of the s.359A letter TRA had no role in respect of the skills assessment for the relevant class of visa. Mr Kumar explained that his contention in this respect was based on the decision of Driver FM in Singh in which his Honour found that at the time of the Tribunal decision in question, TRA was not an approved authority for skills assessment for the purposes of the visa criteria. Hence information provided by the applicant that was allegedly false was said to be relevant only to a visa criterion that was inoperative. It is not clear how this was said to give rise to a jurisdictional error. It would not be a jurisdictional error for the Tribunal to invite comment on information not subject to the s.359A obligation.
Mr Kumar acknowledged that IMMI 11/068 had come into effect before the Tribunal decision and that it specified TRA as the relevant assessing authority for the skilled occupation of cook in relation to a person who applied for a visa before 1 July 2010. However Mr Kumar appeared to suggest that there was an issue as to how the instrument should have been construed in circumstances where this matter was decided by the delegate before the instrument came into effect.
Apart from the issues raised in ground one, it was submitted generally that the Tribunal breached s.360 of the Migration Act which obliges the Tribunal to invite the applicant to a Tribunal hearing to give evidence and make submissions in relation to the issues on the review.
At the hearing I asked counsel for the applicant to explain his claim that there had been a breach of s.360 of the Migration Act. Issue was taken with the fact that while the delegate refused the visa application on one basis and the Tribunal had investigated that issue, it had decided the matter on another basis. It was submitted that the applicant had “to be clear [about] what he needed to address when the decision [was] made”. It was also submitted that this information had not been put to the applicant at the hearing.
Insofar as the applicant relied on s.360 of the Migration Act, as the first respondent acknowledged, that section requires by implication that the review applicant be made aware of what were “the issues arising in relation to the decision under review” (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152 at 162 – 165; [2006] HCA 63 at [32] ‑ [44]). However there is no factual basis for any suggested breach of s.360 in the absence of a transcript of the Tribunal hearing.
Moreover, insofar as it was suggested that the Tribunal's possible reliance on cl.485.221 was not raised with the applicant, that is contrary to the Tribunal's account of the hearing. The Tribunal recorded that it asked the applicant whether he had a current skills assessment and that the applicant said that he did not. The Tribunal also recorded that it explained to the applicant that he was unable to meet one of the requirements for the grant of the visa unless he had an assessment. Thus, the dispositive issue or point on which the decision ultimately turned was made clear in the hearing. In addition, this issue was clearly raised with the applicant in the s.359A letter, such that he could not have failed to have been aware from the correspondence from the Tribunal and from the matters raised at the hearing what were the live issues on the review. It has not been established that there was any failure by the Tribunal to comply with s.360 of the Migration Act.
In relation to s.359A of the Migration Act, the applicant appeared to assert that there had been a contravention on a number of bases. Insofar as the ground as pleaded appears to locate a breach of s.359A in the paragraph of the Tribunal's reasons in which it summarised what was said in the course of the hearing, there is a lack of clarity about whether the complaint is about the Tribunal having made a finding that the applicant had not performed 900 hours of work experience or that it had not given sufficient particulars of such information in the course of the hearing. In any event, as the first respondent contended, either complaint would be misconceived. It cannot be said that there is a breach of s.359A in a remark made in an oral hearing or a conclusion recorded in the Tribunal's reasons.
Insofar as it was submitted that the Tribunal was required to put to the applicant “all” the information it had obtained (whether from TRA or from DIAC), s.359A(1) does not impose such a requirement. Rather it obliges the Tribunal to put to the applicant “clear particulars” of any information it considers would be the reason or a part of the reason for affirming the decision under review.
Insofar as the applicant relied on Zhao and Chen, Zhao did not address the level of particulars required in a s.359A letter. Rather it considered the extent to which the particulars of the grounds included in a notice of intention to cancel a visa under s.119 of the Migration Act had to be provided. It was in the context of considering the level of particularity required under s.119 that the Full Court made the comment (at [25]) relied on by the applicant in this case. The present case is not a case involving cancellation of a visa or a s.119 notice. It may be said, by analogy, that the level of particularity required under s.359A “must serve the statutory purpose” as stated in the different context under consideration in Zhao (at [25]) (albeit this was not the manner in which the argument was put by the applicant).
Similarly, Chen did not involve any consideration of s.359A of the Migration Act. Chen relevantly concerned the degree of particularity required in a notice under s.20 of the Education Services for Overseas Students Act 2000 (Cth) alleging breach of visa conditions. In that context, Lander J pointed out (at [64] – [68]) that while the level of particularity in a s.20 notice must also “serve the statutory purpose” (as had been said in Zhao in relation to a s.119 notice) the purpose of a notice under s.20 of the Education Services for Overseas Students Act was “quite different to the statutory purpose under s 119 of the Migration Act” and did not require the same sort of particularity as a s.119 notice. These cases do not assist in clarifying the level of particularity required in a s.359A letter.
On the other hand, in Brar the Full Court of the Federal Court considered the requirements of s.359A of the Migration Act. In that context the Court relevantly made the point (at [71]) that:
The question is not whether the Tribunal provided particulars of the information available to it, but whether it has provided 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”.
It is the case that the s.359A(4)(b) exception would not apply to information the Tribunal obtained from DIAC or from TRA, as distinct from information the applicant gave for the purpose of the application for review, which was in issue in Brar. However Brar makes it clear that the Tribunal’s obligation in respect of information does not extend to provision of particulars of all the information it had that was not within the s.359A(4) exceptions.
Counsel for the applicant conceded at the hearing that the Tribunal was not obliged to give the applicant copies of the documents provided to it, but rather that it must give him clear particulars of “information” of the nature specified in s.359A(1) of the Migration Act. Insofar as any contention that s.359A required the provision of documents is maintained, the relevant obligation is to provide “clear particulars of information” (see, for example, Burton v Minister for Immigration & Anor [2008] FMCA 576 at [68]).
The nature of the obligation under s.359A of the Migration Act is analogous to the obligation of the Refugee Review Tribunal’s obligation under s.424A of the Act. In MZYHF v Minister for Immigration and Citizenship and Another (2010) 118 ALD 534; [2010] FCA 1250 (at [28] – [31]) Bromberg J summarised the relevant principles as follows:
Further, the nature and content of the obligations upon the Tribunal under s 424A(1) were recently summarised by Flick J in SZMTJ v Minister for Immigration and Citizenship and Anor (No 2) [2009] FCA 486. I respectfully agree with his Honour’s observations at [52] that each of the requirements of s 424A are not to be treated as though they were divorced one from the next. The greater degree of clarity in the particulars of any information provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant.
In relation to s 424A(1)(a), Flick J at [45] emphasised that a visa applicant is to be provided with “sufficient specificity” of the information to be relied upon. Language which fails to identify information with “sufficient specificity” and which fails to set out information “unambiguously” may fail to comply with s 424A(1)(a): see for example MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] per Tracey J.
In SZNKO v Minister for Immigration and Citizenship [2010] FCA 297, Flick J traced the legislative history of the requirement for particulars in s 424A. His Honour noted that prior versions of s 424A had referred merely to “particulars of any information”. The requirement that “clear particulars” be provided was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth). As his Honour noted, that change in language cannot be ignored. The change came at the same time that s 424AA was introduced and thus the facility provided to the Tribunal to communicate orally its intended reliance upon “information”, rather than in writing under s 424A. Although the language of s 424A(1)(a) was also brought into line with that of paragraph (a) of s 424AA, it may be inferred that the change from “particulars” to “clear particulars” was somewhat motivated by the concern that extra care be taken in the giving of particulars, especially as particulars could now be given orally.
As Flick J further noted at [44] of SZMTJ, s 424A(1)(b) imposes what has been said to be “strict requirements”. His Honour referred to the decision of Rares J in SZEOP v Minister for Immigration and Citizenship [2007] FCA 807, where Rares J said that s 424A(1)(b) required the Tribunal to ensure, as far as reasonably practical, that it identified to the visa applicant why the information was relevant to the review. Such an identification is necessary to avoid the visa applicant being left to choose between uncertain inferences that might otherwise be available. The visa applicant needs to be told by the Tribunal why the information is relevant to the review. That obligation is not fulfilled if the Tribunal leaves it to chance that the visa applicant appreciates the relevance of the information from the course of the hearing, or from other circumstances surrounding the way in which the review was being conducted: SZEOP at [36].
The main complaint made by the applicant appears to be about the sufficiency of particulars provided in the s.359A letter. Insofar as the contention is that the Tribunal had to provide particulars of information about other visa applicants in a similar position, it has not been established that such information was information that would be the reason or part of the reason for affirming the decision under review. The decision related to the applicant, not to other persons in a similar position.
Beyond this, what was put to the applicant in the letter of 5 July 2011 was sufficient to give him clear particulars of the information the Tribunal considered would be the reason or part of the reason for affirming the decision under review. There were, in effect, two aspects to the information provided with which issue is taken. The first aspect related to the information provided to TRA about the applicant’s work experience being false (in the second dot point). The second aspect was the information the Tribunal received from DIAC about the investigation into The Last Train to Bombay.
The s.359A letter referred to the TRA assessment indicating the assessment was based on the applicant’s formal qualification and 900 hours of work experience. I note in passing that the fact that the Tribunal included reference to information provided by the applicant during the process that led to the decision under review that would be within the s.359A(4)(ba) exception does not establish a contravention of s.359A(1).
Having set the scene, the Tribunal then put to the applicant (in the second dot point) that DIAC investigations indicated that the information he provided to TRA demonstrating 900 hours of work experience at The Last Train to Bombay was false. In that context the letter advised the applicant of the basis upon which that view had been reached and of the ultimate source of the information, insofar as Mr Virk, the owner of the restaurant, had identified 31 people on a list of 38 visa applicants whose work references claiming work at the restaurant were false. There is a clear and obvious inference (especially having regard to the basis on which the delegate refused to grant the visa) that the applicant was one of the people who had provided false references.
Insofar as issue was taken with the adequacy of the particulars of the information from DIAC referred to in the third dot point the content of the third dot point has to be seen in the context of other information provided. It was not necessary for the Tribunal to provide further particulars in respect of such information in order for the applicant to understand the case he had to meet. Indeed I note from his response of 10 August 2011 that the applicant (through his adviser) appeared quite clearly to understand the information put to him by the Tribunal.
As to the claim that it was not clear what information was being sought from the applicant, the Tribunal’s obligation under s.359A of the Migration Act was to give the applicant the opportunity to comment or respond to information. He was given that opportunity.
As submitted for the first respondent, the phase “clear particulars” in s.359A needs to be understood in its statutory context as part of a procedural fairness division intended to ensure that an applicant is put in a position where he or she can advance a case to respond to the issues arising on the review. The Tribunal was under an obligation to acquaint the applicant with information that would be the reason or part of the reason for affirming the decision under review, and explain how it was relevant to those issues. The extent of particulars required has to be seen in light of the statutory purpose. In this case the issues on the review in relation to the application for a visa were made clear. When the three dot points in the s.359A letter relating to the issue of a false work experience claim are read together with the commentary that follows, it appears that the substance of the information being put to the applicant was clearly put and he was sufficiently given an opportunity to respond. The relevance of the information was also clearly put to the applicant in the s.359A letter. It has not been established that there was any failure by the Tribunal to comply with s.359A of the Migration Act in this respect.
Insofar as the applicant appeared to raise a s.359A issue in relation to whether TRA was the approved assessing authority at the time of the delegate's decision, he did not elaborate on such claim in any meaningful sense other than to refer to Singh. The applicant did not take issue with the effect of IMMI 11/068 which specified TRA as the relevant assessing authority for the skilled occupation of “cook” and came into operation before the Tribunal decision. The fact that there may not have been effective specification of TRA as a relevant assessing authority at some earlier time, such as at the time of the delegate's decision or the time of the s.359A letter, is not in point. In that respect I note that the s.359A letter referred not only to the provision of a bogus document or information that was false or misleading to the relevant assessing authority, but also referred to the relevance of giving such information to the Minister, or an officer in relation to the application for a visa. It was not necessary for the s.359A letter to make clear the relevance of whether TRA was the relevant assessing authority at the time of the delegate's decision. What was required under s.359A was the provision of information that the Tribunal considered would be the reason or a part of the reason for affirming the decision under review, not the reason for the decision of the delegate.
Moreover, regardless of the status of TRA at the time of the delegate’s decision, the Tribunal, relevantly, gave the applicant particulars of the fact and notification of the withdrawal of his successful skills assessment, the reasons for the withdrawal and of the relevance of this information to the time of decision criterion in cl.485.221.
I note that the first respondent submitted formally that if there had been any failure to provide sufficient particulars in this respect it would not go to the Tribunal's jurisdiction in circumstances where the Tribunal did not, in its reasons, rely on any finding that the applicant had provided false information to TRA in connection with the skills assessment and the applicant did not contest, but rather confirmed, the proposition that the assessment had been based on a false reference. Hence it was said that he was not put at any disadvantage by any deficiency in the particulars. It was formally submitted that even if clear particulars were not provided, that should not be regarded as resulting in a failure to comply with s.359A(1) of the Migration Act. Alternatively, any such failure could be said to be immaterial as it did not go jurisdiction (see SZMHD and Another v Minister for Immigration and Citizenship and Another (2009) 110 ALD 290; [2009] FCA 712 and cf SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2005) 228 CLR 294; [2005] HCA 24). The first indicated that if necessary he would seek to submit that this aspect of SAAP should be reconsidered in the light of Minister for Immigration and Citizenship v SZIZO and Others (2009) 238 CLR 627 (at 639 – 640); [2009] HCA 37 but accepted that such submission could only be accepted in the High Court.
However I am not, in any event, satisfied that there was a failure by the Tribunal to comply with s.359A of the Migration Act in the manner contended for by the applicant.
Ground three is not made out.
As none of the grounds relied on by the applicant have been made out the application must be dismissed.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 20 December 2012
0
21
5