Kaushik v Minister for Immigration
[2019] FCCA 2850
•9 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KAUSHIK v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2850 |
| Catchwords: MIGRATION – Judicial review – refusal to grant Skilled Residence Visa – whether decision affected by jurisdictional error. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.75 Migration Regulations 1994 (Cth), sch.2, cl.886.225, sch.4, cl. 4020 |
| Cases cited: AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; (1983) 57 ALJR 420; (1983) 47 ALR 45 Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 |
| Applicant: | GURVEER SINGH KAUSHIK |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 366 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing dates: | 24 June and 14 July 2016 |
| Date of Last Submission: | 14 July 2016 |
| Delivered at: | Sydney (via video-link to Perth) |
| Delivered on: | 9 October 2019 (by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth)) |
REPRESENTATION
| Counsel for the Applicant: | Mr L Boccabella |
| Solicitors for the Applicant: | AJ Torbey & Associates |
| Counsel for the Respondents: | Mr PJ Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 366 of 2015
| GURVEER SINGH KAUSHIK |
Applicant
And
| MINISTER FOR IMMIGRATION , CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, Mr Gurveer Singh Kaushik (“Mr Kaushik”), filed an application for judicial review (“Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”). The Judicial Review Application sought review of a decision of the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) affirming a decision of a delegate of the first respondent (“Delegate’s Decision” and “Delegate” respectively), the then Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (“Minister”) to not grant Mr Kaushik a Skilled (Residence)(Class VB) visa (“Skilled Visa”).
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, in November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers, including:
a)the originating application filed 4 August 2015;
b)the Court Book (“CB”) of relevant materials, including the Tribunal Decision at CB 542-552;
c)the response filed 12 August 2015;
d)the applicants’ written submissions filed 1 June 2016 and 24 June 2016;
e)the Ministers’ written submissions filed on 17 June 2016 and 8 July 2016;
f)the Lorenzo Boccabella Affidavit filed 1 June 2016 (“Boccabella Affidavit”) annexing a transcript of the Tribunal hearing on 29 April 2015 (“Tribunal Trancript”); and
g)the transcript of the hearing on 24 June 2016 and 14 July 2016 (“Transcript”).
In the above circumstances, the delay, which the Court very much regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment. These Reason for Judgment are being delivered by video-link by Judge Street pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth).
Background
The background to the Judicial Review Application is as follows:
a)Mr Kaushik is a citizen of India who first arrived in Australia on a student visa in June 2007, and on 25 November 2009 Mr Kaushik applied for the Skilled Visa: CB 1-16 and 123;
b)a letter dated 16 September 2009 from Trade Recognition Australia (“TRA”) stated TRA was satisfied Mr Kaushik had partaken in 900 hours of work experience in his occupation as a cook: CB 48-49;
c)on 10 May 2013 the Delegate wrote to Mr Kaushik stating adverse information had been obtained by the Delegate as a result of an investigation into the TRA documents and the alleged work experience he partook at Maharaja Indian Restaurant (“Maharaja”), and that as a result Mr Kaushik may not satisfy the public interest criterion as there was evidence he had provided, or caused to be provided a “bogus document” in relation to his Skilled Visa application: CB 90-94;
d)on 7 June 2016 Mr Kaushik provided to the Delegate, supporting documentation in the form of two statutory declarations and a letter confirming a log book of Mr Kaushik’s work experience that was provided to his study institution: CB 96-103;
e)on 10 July 2013, the Delegate, having not been satisfied that Mr Kaushik met the public interest criteria in cl.4020 of sch.4 of the Migration Regulations 1994 (Cth) (“Migration Regulations”) (“Public Interest Criteria”) as the TRA was a bogus document, concluded that Mr Kaushik did not meet the requirements of cl.886.225 of sch.2 of the Migration Regulations and refused to grant a Skilled Visa: CB 123-130;
f)on 25 July 2013 Mr Kaushik lodged an application with the Tribunal, for review of the Delegate's Decision: CB 145-156;
g)on 2 October 2013 the Tribunal invited Mr Kaushik to comment on information it identified would be the reason for affirming the Delegate’s Decision, and provided the particulars of that information and requested Mr Kaushik to provide specific information: CB 169-173;
h)a response to this invitation was provided to the Tribunal on 16 October 2013, in addition to other requested documentation, and submissions made by Mr Kaushik’s lawyer: CB 176-282 and CB 319-326;
i)on 19 November 2013 Mr Kaushik and his lawyer attended a hearing with the Tribunal and Mr Kaushik was asked to provide any further information or comments in writing, and did so on 28 November 2013: CB 342-347;
j)on 4 December 2013 the Tribunal made a decision affirming the Delegate's Decision not to grant Mr Kaushik a Skilled Visa (“Initial Tribunal Decision”), and following a review to this Court the matter was remitted, by consent, on 11 November 2014: CB 353 and CB 369-372;
k)on 25 November 2014 the Tribunal requested the Delegate to provide details of the Maharaja investigation and to provide copies of any record of interview with the owner of Maharaja, Mr Baljit Binning (“Mr Binning”): CB 389 -390;
l)the Tribunal requested further information from the Delegate on 10 December 2017, specifically asking whether it could confirm whether Mr Harpreet Singh (“Mr Singh”) was part of the investigation, if Mr Singh's photograph was presented to Mr Binning and finally to confirm if Mr Binning indicated that Mr Singh had been employed or not: CB 411 and 415;
m)on 27 April 2015 Mr Kaushik's lawyer provided submissions, and documents referred to in his submissions, in support of Mr Kaushik's claims, including a copy of the submissions made to this Court in relation to the Initial Tribunal Decision, and a copy of a decision made on 12 December 2015 to grant Mr Kaushik's wife a Subclass 187 permanent residence visa: CB 440-467 and 439;
n)Mr Kaushik appeared before the Tribunal on 29 April 2015 with his lawyer who also provided further written submissions on 1 May 2015, and Mr Kaushik’s wife, Mrs Prity Sharma Kaushik (“Mrs Kaushik”), who gave oral evidence before the Tribunal: CB 480, 543 and 549;
o)by letter dated 5 May 2015 the Tribunal advised Mr Kaushik that at the hearing on 29 April 2015 the Tribunal had raised concerns with him about the reliability and credibility of Mr Binning and his wife (“Mrs Binning”) (together the “Binnings”), and invited him to comment on or respond to certain information, particulars of which referred to:
i)evidence given by Mr Binning at previous Tribunal hearings of other applicants who claimed work experience at Maharaja and that Mr Binning gave different answers when asked how many students had worked at Maharaja for work experience in 2008 and 2009: CB 489;
ii)the Binnings having appeared as witnesses to give evidence at other Tribunal hearings of the claimed work experience students, their evidence being vague and inconsistent with each other and that they had difficulty recalling who worked at the restaurant and provided different names when asked about students who worked at the Maharaja: CB 489;
iii)evidence being given at different hearings before the same Tribunal member and referred to matters considered by the Court in Bajwa v Minister for Immigration & Border Protection [2014] FCCA 2890, Sekhon v Minister for Immigration & Border Protection [2014] FCCA 2834 and Nanre v Minister for Immigration & Border Protection [2015] FCCA 134 (together the “Maharaja Matters”); and
iv)the relevance of this information and that if the Tribunal found that Mr Kaushik did not meet the Public Interest Criteria then he would not satisfy cl.886.225 of sch.2 of the Migration Regulations, though the requirement to satisfy the Public Interest Criteria might be waived if the Tribunal was satisfied that there were compelling or compassionate circumstances: CB 489-490;
p)on 15 May 2015 Mr Kaushik's lawyer forwarded to the Tribunal a request pursuant to s.362A of the Migration Act seeking material held by the Tribunal, namely all material possessed relating to the “Maharaja Matters”, submitted that the Tribunal's letter was not a valid notice under ss.359A and 359B of the Migration Act, and if this submission was not accepted, then he applied for an extension of time to respond to the letter, requested the Tribunal supply Mr Kaushik with the Tribunal's decisions in the Maharaja Matters, and further requested that Mr Kaushik be given full disclosure of the three files in relation to those matters and details of all notes and documents made by the Delegate in relation to its investigation of Maharaja: CB 497-499;
q)the Tribunal responded on 18 May 2015, attaching a copy of the site visit report that was referred to in the Tribunal's invitation to comment, and advising that otherwise sufficient information had been provided to enable a response to be prepared : CB 502-523;
r)on 3 June 2015 Mr Kaushik's lawyer provided further written submissions and supporting documentation to the Tribunal: CB 524-534; and
s)the Tribunal Decision affirmed the Delegate’s Decision to not grant Mr Kaushik a Skilled Visa on 7 July 2015: CB 542-552.
Tribunal Decision
In the Tribunal Decision the Tribunal :
a)stated one of the requirements for the grant of the Skilled Visa was that Mr Kaushik provide evidence of a skills recognition from TRA in his nominated occupation, being a cook, based upon his qualifications and his completing 900 hours of work experience: CB 543 at [3];
b)noted that following an investigation by the Minister, the Delegate concluded the TRA recognition provided by Mr Kaushik was a “bogus document” and therefore Mr Kaushik did not satisfy the Public Interest Criteria, and as there were no circumstances to warrant waiving the Public Interest Criteria Mr Kaushik did not satisfy cl.886.225 of sch.2 of the Migration Regulations: CB 543 at [4];
c)referred to the matter having been remitted for reconsideration, and confirmed Mr Kaushik was represented at the hearing and throughout the matter: CB 543 at [6];
d)explained while the Skilled Visa application was being processed the Minister conducted an investigation into Maharaja, the restaurant Mr Kaushik used to support his TRA, and in the course of the investigation Mr Binning was interviewed on 15 February 2011, and could not identify Mr Kaushik or confirm he had undertaken work experience at Maharaja, thus the Minister had concluded Mr Kaushik had not undertaken the work experience as stated in his TRA: CB 544 at [12];
e)traversed the exchange between Mr Kaushik and the Delegate when he was invited to comment on what had been revealed by the investigation into Maharaja, including Mr Kaushik’s lawyer providing submissions and further documents, and noted the Delegate was satisfied the TRA contained false and misleading information: CB 544 at [14]-[16];
f)noted the issue on review was to determine if Mr Kaushik met the Public Interest Criteria as required by cl.886.225 of sch.2 to the Migration Regulations and to do so this required the Tribunal to be satisfied that there was no evidence Mr Kaushik had given, or caused to be given, a bogus document or misleading information in relation to the Skilled Visa application: CB 545 at [18]; and
g)cited the legal principles regarding “misleading information” and “bogus document”: CB 545-546 at [20]-[22].
Having made these preliminary remarks, the Tribunal then dealt with the issue of Mr Kaushik having worked the 900 hours at Maharaja. In respect of this issue, the Tribunal:
a)considered and weighed:
i)the submissions made at the Tribunal hearing that there was evidence from an education provider Mr Kaushik had undertaken at least 300 hours and Mr Kaushik having provided detailed testimony at the Tribunal hearing: CB 546 at [23];
ii)the evidence and information before the Tribunal regarding the investigation into Maharaja including Mr Binning’s interview with investigators, the subsequent statutory declarations of the Binnings stating that Mr Kaushik had in fact worked at Maharaja: CB 546 at [25]; and
iii)a statutory declaration of Mr Singh claiming he had undertaken paid and voluntary work at Maharaja with Mr Kaushik, and that Mr Binning had not recognised his photo during the investigation: CB 546 at [26];
b)raised concerns with the reliability of the Binnings’ evidence, found that the responses of Mr Binning on 15 February 2011 were less reliable than desired, though was not prepared to accept that all persons who claimed to undertake work experience at Maharaja did so: CB 546 at [26]-[27];
c)detailed that during hearings before the Tribunal relating to other applicants who claimed work experience at Maharaja, the Binnings had varied the amount of students they claimed had undertaken work experience at Maharaja, provided inconsistent evidence and were unable to recall or provide records, therefore the Tribunal did not consider them reliable or credible witnesses, and did not accept the inconsistencies were due to variations of staff from time to time: CB 546-547 at [29]-[30];
d)stated Mr Kaushik’s claim was to have commenced working at Maharaja on 2 August 2008, completing the 900 hours in June 2009, and staying on as a volunteer until September 2009: CB 547 at [32];
e)accepted Mr Kaushik had undertaken 300 hours of work experience at Maharaja as there was sufficient evidence from the education endorsements, and corroborative evidence of Mr Singh who claimed to have worked at Maharaja between January and December 2009: CB 547 at [33];
f)did not accept Mr Kaushik completed the 900 hours as claimed:
i)as the only corroborative evidence was that provided by Mr Binning and the Tribunal considered the evidence unreliable: CB 547 at [34];
ii)as Mr Kaushik’s evidence at the tribunal hearing was unconvincing, specifically referring to his evidence as to the appearance of the dining area as being easily obtained through simply attending Maharaja as a customer, or for a birthday party as is depicted in the photographs he provided: CB 547 at [34]; and
iii)as other statutory declarations were from those who were not in a position to categorically state that Mr Kaushik had partaken in the 900 hours of work experience: CB 548 at [34];
g)noted the critical nature of the number of hours of work experience required by the TRA, that it was undisputed that had Mr Kaushik not completed the 900 hours he would not have been approved by the TRA and voluntary work (unable to be verified by pay slips) was accepted as work experience, however found this did not explain the lack of corroborative evidence Mr Kaushik kept to support his claim, particularly where he had kept a log book of the 300 hours for his studies: CB 548 at [35];
h)did not accept the submission the TRA forced students to do unpaid work as it was irrelevant to the issue of Mr Kaushik having completed the requisite hours, and acknowledged that while subsequent offers of employment support that Mr Kaushik had the necessary skills as a cook and Mr Kaushik may well have prepared a curry dish he claimed to have learnt at Maharaja on a radio program, this again does not support the assertion of having undertaken the 900 hours necessary for the TRA: CB 548 at [36]-[37]; and
i)was not persuaded Mr Kaushik had partaken in 900 hours of work experience and reasonably suspects the TRA was obtained as a result of misleading information, therefore the TRA was a bogus document that was provided to the Minister and Mr Kaushik therefore did not meet cl.4020(1) of sch.4 of the Migration Regulations.
Having found Mr Kaushik did not meet the Public Interest Criteria the Tribunal turned its attention to consider whether there ought to be a waiver of the Public Interest Criteria. Relevantly, the Tribunal:
a)referred to the submissions made in respect of Public Interest Criteria including that Mr Kaushik had immediate family who are Australian citizens, his spouse is studying in Australia, he had been residing in Australia permanently since 2007 and he is a hardworking law abiding resident: CB 549 at [43]-[44];
b)noted the letter from Mrs Kaushik’s employer stating if she departed before a two year period it would be grounds for the cancelation of her visa and this would seriously disrupt her life, while Mr Kaushik will be unable to apply for any visa prior to 11 July 2016: CB 549 at [45]-[46];
c)had regard to Mrs Kaushik’s oral evidence at the Tribunal hearing that she wants to extend their family and buy a house, has family and friends residing in Australia, and that her Indian heritage requires her to stay where her husband stays, and did not consider any plans to have children or purchase a house would amount to compassionate and compelling circumstances: CB 549 at [47];
d)referred to Mrs Kaushik not having included Mr Kaushik on her visa application as he was found not to have satisfied the Public Interest Criteria in his application before the Delegate, further that Mrs Kaushik had a decision to remain in Australia or leave with her husband, but any decision that was made would be only temporary in nature and it was not uncommon for a husband and wife to spend time apart and this is not compassionate and compelling circumstance for the Tribunal to waive the Public Interest Criteria: CB 549 at [47];
e)acknowledged Mr Kaushik was in paid employment however having to terminate his employment was not a compassionate and compelling circumstance to justify the granting of the Skilled Visa, and the limited information provided on the impact of Mr Kaushik having to depart on his relatives in Australia, save for his wife, meant the the circumstances did not justify waiving of the Public Interest Criterion: CB 550 at [48]-[49]; and
f)was not satisfied the requirements of cl.4020(1) of sch.4 of the Migration Regulations should be waived, though briefly noted Mr Kaushik met cll.4020(2A) and 4020(2B) of sch.4 of the Migration Regulations, before affirming the Delegate’s Decision to not grant Mr Kaushik a Skilled Visa as he failed to satisfy the Public Interest Criterion for the purposes of cl.886.225(a) of sch.2 of the Migration Regulations: CB 550 at [51]-[56].
Judicial Review Application
The grounds of the Judicial Review Application are as follows:
1. The second respondent failed to properly conduct a review for the purpose of implementing ss 348 and 349 of the Migration Act 1958 ('the Act') and in compliance with s 357A of the Act;
2. The second respondent was not open to persuasion in relation to its determination of the matter.
3. The second respondent's decision was unreasonable in a number of separate respects.
4. The second respondent failed to conduct a proper, genuine and realistic consideration of the merits of the applicant's case which is a jurisdictional error.
5. (a) In accordance with general propositions set out in Collector of Customs v Pressure Tankers and Pozzolanic (1993) 43 FCR 280 (9 July 1993), the facts did not exist to support a conclusion that the applicant had provided material to Trades Recognition Australia which was false.
(b) Hence it was an error of law to find that the applicant did not meet paragraph 4020(1) of the Schedule 4 to the Migration Regulations.
(c) The error of law amounted to a jurisdictional error.
6. The second respondent gave insufficient and/or inadequate reasons for its decision and as such the decision is a jurisdictional error
7. The second respondent failed to take a number of relevant considerations into account.
8. The second respondent took a number of irrelevant considerations into account;
9. The second respondent failed to properly interpret and apply paragraph 4020 of Schedule 4 to the Migration Regulations 1994;
10. The decision was otherwise unlawful.
Mr Kaushik’s Submissions
Unhelpfully, Mr Kaushik’s submissions were not reflective of, or referenced to, the grounds of review set out in the Judicial Review Application. Consequently, the Court has addressed the Judicial Review Application by reference to the headings in Mr Kaushik’s submissions.
In relation to the three other cases before the Tribunal Mr Kaushik submitted that :
a)the Tribunal referred to the Maharaja Matters, and relied on those three cases to conclude the evidence of Mr Binning in Mr Kaushik's case could not be accepted;
b)it emerges that the same Tribunal member heard and determined each of the Maharaja Matters and there was overlapping evidence of the Binnings in each of those cases and quite naturally the member found in each case that the evidence of the Binnings was unreliable, hence the fraud was proven in that each of those employees supposedly had fabricated the hours they had worked. It was totally unacceptable for the same member to have presided over three separate cases involving the same disputed evidence: Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; (1983) 57 ALJR 420; (1983) 47 ALR 45 (“Livesey”);
c)once a Tribunal member had decided a matter adverse to an applicant based on the credibility of a key witness the Tribunal should never have involved themselves in any other case concerning the credibility of that key witness;
d)consciously or unconsciously the Tribunal member would have been influenced by what happened in one hearing and vice versa, and as in this matter there may have been exculpatory evidence for each of the other persons in the other cases however as the Tribunal has never supplied the Maharaja Matters Tribunal Decisions, Mr Kaushik could only consider the reasons for decision of the court;
e)the Tribunal in this case placed significant reliance on the cascading effect of the Maharaja Matters, and that they did not reveal that the same member had decided those three cases which displayed an unnecessary coyness for a body conducting an inquisitorial hearing, furthermore Mr Kaushik not being a party to those Maharaja Matters he was not in a position to object therefore taking into account the Maharaja Matters is, at least, taking into account irrelevant considerations or renders the Tribunal Decision illogical to the point of being unreasonable; and
f)not only were the Maharaja Matters Tribunal decisions never supplied to Mr Kaushik but the files themselves were never supplied to Mr Kaushik, though they could have been supplied in some redacted format given that the names of the parties were revealed in a published Court judgment and Counsel at the Tribunal hearing requested those files both orally and in written submissions but was denied access and this breaches natural fairness: Tribunal Transcript at [1151].
In relation to the Tribunal being a contradictor Mr Kaushik submitted that:
a)the Tribunal is not acting in a way which is ‘fair and just’ by withholding relevant information only in its possession from Mr Kaushik so that he cannot viably address that information at the Tribunal hearing and supplying the information afterwards meant that s.360(1) of the Migration Act was not complied with: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 (“Li”) at [60]-[61] per Hayne, Kiefel and Bell JJ;
b)the Tribunal was a contradictor, and there are a number elements, which, when put together lead to the conclusion in this case that the Tribunal took on the role of contradictor and once a decision maker becomes a contradictor then the decision maker becomes distracted and their vision is clouded by the dust of conflict: Yuill v Yuill [1945] P 15; [1945] 1 All ER 183;
c)at the Tribunal hearing the Tribunal never supplied material to Mr Kaushik it had received relating to the investigation by the Minister into Maharaja, as instead the Tribunal wanted to surprise Mr Kaushik with this material: Boccabella Affidavit at [4]-[6];
d)the Tribunal conducted its own investigation and had done an evidentiary analysis revealing the Maharaja Matters, and gave no notice to Mr Kaushik that these other cases existed prior to the Tribunal hearing, rather the existence of those cases was sprung upon Mr Kaushik at the Tribunal hearing with allegations put to him which he had no prospect of being able to answer;
e)at [29] of the Tribunal Decision the Tribunal referred to a fourth Tribunal case undertaken by a Tribunal differently constituted to which purportedly Mr Binning gave different evidence, yet the name of that matter was never revealed and no information or papers about that Tribunal decision was provided or mentioned other than in the Tribunal Decision;
f)the Tribunal was given a copy of a Tribunal Decision in favour of Mr Devgan Amadeep (“Mr Amadeep”) who also did work experience at the Maharaja Restaurant, however the Tribunal seemed to ignore that material even though it showed that one person at least had worked for 900 hours on a voluntary basis at Maharaja;
g)Mr Kaushik's lawyer sought to have questions asked about how Mr Kaushik calculated his 900 work experience, however the Tribunal cut the lawyer off yet this was crucial to deciding the matter; and
h)if accepted that the Tribunal acted as a contradictor then, of course, the Tribunal would not have conducted a proper review as required by ss.348 and 349 of the Migration Act, and in compliance with s.357A of the Migration Act.
In relation to the Tribunal not being open to persuasion Mr Kaushik submitted:
a)no consideration was given to the fact that none of the Maharaja Matters directly concerned Mr Kaushik and it seems that no exculpatory arguments were considered by the Tribunal in relation to Mr Binning, including that raised in the lawyer’s submissions that if Mr Binning was involved in the fraud then is was essential for him to camouflage that fraud by having some genuine students on a voluntary basis, such as Mr Singh and Mr Kaushik; and
b)whilst a Tribunal does not have to respond to every point an applicant raises, it seems that bona fide attempts to raise positive arguments were not considered, and the manner of the Tribunal would raise the apprehension in fair-minded observer that the Tribunal was not open to persuasion.
In relation to the Tribunal being unreasonable by way of illogical reasons and inadequate reasons Mr Kaushik submitted that:
a)the whole issue of the inconsistent evidence of the Binnings became a distraction, the Tribunal ultimately coming to the conclusion their evidence was unreliable and as a consequence, impliedly the Tribunal was left with the situation that the evidence of the Binnings was not probative in an adverse sense to Mr Kaushik;
b)it was then left to the oral evidence of Mr Kaushik, and at [33] of the Tribunal Decision the Tribunal accepted that Mr Kaushik had done at least 300 hours work experience at Maharaja because it accepted Mr Singh’s evidence he specifically worked alongside Mr Kaushik at that restaurant, but the Tribunal rejected on a purely illogical basis the detailed oral evidence of Mr Kaushik, in effect, that he worked an extra 600 hours at the Maharaja;
c)at [34] of the Tribunal Decision the Tribunal on the one hand accepts that Mr Kaushik worked at least 300 hours at Maharaja but then went on to say it was not convinced by Mr Kaushik’s evidence he had completed the necessary 900 hours, and one asks how could that be relevant when in the previous paragraph the Tribunal accepted that Mr Kaushik worked at the restaurant for at least 300 hours;
d)the Tribunal relied upon the lack of a written record to support the extra 600 hours but appeared to give no weight to the evidence which it accepted of Mr Singh, that Mr Singh was working alongside Mr Kaushik, there was similar evidence from Mr Amadeep, and the Tribunal rejected corroborative evidence that Mr Kaushik subsequently went on to get paid work as a cook;
e)simply saying that none of his corroborative witnesses could substantiate the full extra 600 hours does not 'rationally support that rejection' as the mere absence of a written record does not prove Mr Kaushik did not do the extra 600 hours, rather in order to reject this evidence the Tribunal had to provide reasons which would rationally support that rejection and it simply did not do so; and
f)in SZTAP v Minister for Immigration & Border Protection [2015] FCAFC 175; (2015) 238 FCR 404; (2015) 331 ALR 571 (“SZTAP”) the Full Court of the Federal Court in a unanimous decision found that it was a jurisdictional error to be illogical in coming to conclusions about whether a person had a real chance of persecution, and the significance of SZTAP is that the Court had applied the notion of illogicality to making findings based on an analysis of facts in having concluded that once illogicality was involved in that analysis then the conclusions amounted to legal unreasonableness.
In relation to the treatment of the Public Interest Criteria waiver Mr Kaushik submitted that:
a)the treatment of the Public Interest Criteria waiver falls into classic unreasonableness, particularly at [42]-[50] where there was no attempt to legally define what compassionate or compelling circumstances mean in relation to Mr Kaushik's wife, and this itself is a failure to properly interpret cl.4020(4) of sch.4 of the Migration Regulations;
b)Mrs Kaushik gave detailed evidence of how important her relationship was to her and that her plans to set up a family and building a house in the future were now on hold, yet the reasons and conclusion at [47] of the Tribunal Decision provides no evidence for the broad ranging proposition, and there would need to be some eminent sociological evidence to substantiate such a claim; and
c)forcing a couple apart for a substantial period of time is a disproportionate response to the situation of Mr Kaushik as is his wife being forced to give up her employment and break her visa.
In relation to the alleged improper exercise of power by the Tribunal Mr Kaushik submitted that:
a)the treatment of the waiver is an improper exercise of power of the type found in Khan v Minister for Immigration & Ethnic Affairs (1987) 14 ALD 291 (“Khan”) and in Khan, the Federal Court made qualitative statements about the factual findings which led the Court to determine there had not been a ''proper, genuine and realistic consideration to the merits"; and
b)as far as the Public Interest Criteria waiver is concerned the issues raised would also apply to an improper exercise of power, and the Tribunal's handling of the matter as far as the waiver is concerned demonstrated that it did not give ''proper, genuine and realistic consideration to the merits".
Minister’s Submissions
The Minister submitted that none of the grounds contained in the Judicial Review Application were particularised, and in the absence of any amended Judicial Review Application giving particulars of those grounds, they cannot succeed. Notwithstanding, the Minister addressed those grounds to the extent that they could be discerned from Mr Kaushik’s outline of submissions.
In respect to what was stated regarding the Maharaja Matters the Minister submitted that:
a)it is not in dispute that the Tribunal relied upon evidence given by the Binnings in the Maharaja Matters when they were before the Tribunal in other matters, and relevantly the Tribunal gave notice to Mr Kaushik pursuant to s.359A of the Migration Act that aspects of their evidence in those three other proceedings might be the reason or part of the reason for affirming the Delegate’s Decision and referred to the Binnings’ evidence in the Maharaja Matters;
b)there was no jurisdictional error by the Tribunal in having regard to evidence given by Mr and Mrs Binning in the Maharaja Matters as the Tribunal was entitled by s.359 of the Migration Act to obtain the information in relation to evidence given by Mr and Mrs Binning in the Maharaja Matters, which also involved claims by skilled visa applicants to have undertaken work experience at Maharaja, and furthermore the Tribunal provided Mr Kaushik with details of relevant information concerning the Binnings' evidence in the Maharaja Matters in accordance with s.359A of the Migration Act;
c)the Court should conclude that the Tribunal's taking into account evidence given by the Binnings in the Maharaja Matters did not amount to taking into account irrelevant considerations, and did not make the Tribunal's Decision "illogical to [the] point of being unreasonable";
d)in relation to the "natural justice point", the Tribunal was not legally obliged to provide the Tribunal's files in the matters Maharaja Matters to Mr Kaushik, either in full or in some redacted format, nor was the Tribunal bound to provide copies of the Tribunal's decisions in the Maharaja Matters;
e)pursuant to s.359A of the Migration Act the Tribunal was required to give Mr Kaushik clear particulars of any information which it considered would be the reason or part of the reason for affirming the decision under review and it did so by its letter to Mr Kaushik dated 5 May 2015; and
f)there was no jurisdictional error by the Tribunal in failing to comply with the request by Mr Kaushik's counsel to provide the Maharaja Matters decisions.
In respect to the Tribunal being contradictor the Minister submitted:
a)it is not demonstrated that the Tribunal did not carry out the review of the Delegate's Decision required of it pursuant to s.348 of the Migration Act, nor is there a claim that the Tribunal did not comply with a particular provision of Pt.5 of Div.5 of the Migration Act or misused a particular power in s.349 of the Migration Act;
b)there was no breach of s.360(1) of the Migration Act by the Tribunal in this matter as Mr Kaushik was invited to a hearing by the Tribunal to give evidence and present arguments relating to the issues arising in his case, he took that opportunity and the Tribunal here, contrary to Li, had scheduled a hearing for 19 February 2015, and in response to a request from Mr Kaushik's lawyer that the hearing be postponed, the Tribunal fixed a new hearing date on 29 April 2015;
c)the specific provisions of ss.359A and 359AA of the Migration Act relate to the Tribunal's obligation to provide information to an applicant in the circumstances set out, and in particular s.359A(1) of the Migration Act provides that the Tribunal must give to an applicant clear particulars of any information which the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review, thus there is no requirement that any such information be provided by the Tribunal to an applicant prior to the Tribunal hearing and this is further supported by s.359A(3) of the Migration Act, which provides that the Tribunal is not obliged to give particulars of information to an applicant if the Tribunal gives clear particulars of the information to Mr Kaushik and invites comment or a response under s.359AA of the Migration Act which it did; and
d)the Tribunal provided some information orally to Mr Kaushik at the hearing on 29 April 2015, and then gave information in writing to Mr Kaushik pursuant to s.359A(1) of the Migration Act concerning evidence given by the Binnings at Tribunal hearings before another Tribunal member in the Maharaja Matters, and the provision of this information in writing to Mr Kaushik, and the invitation to him to comment on or respond to the information, complied with the Tribunal's obligation pursuant to s.359A of the Migration Act, and therefore not providing this information prior to the Tribunal hearing did not breach any obligation of the Tribunal to invite Mr Kaushik to a hearing pursuant to s.360(1) of the Migration Act.
In respect of the Tribunal not being open to persuasion the Minister submitted:
a)Mr Kaushik submits that the manner of the Tribunal conducting this matter would raise the apprehension in a fair-minded observer that the Tribunal was not open to persuasion, and that while actual bias is not alleged, apprehended bias is. Apprehended bias will only be found to exist if a fair-minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision: Re Refugee Review Tribunal & Anor; Ex parte H & Anor [2001] HCA 28; (2001) 75 ALJR 982; (2001) 179 ALR 425 (“Ex parte H”) at [28]-[29] per Gleeson CJ, Gaudron and Gummow JJ;
b)Livesey has no application in these circumstances as the Tribunal member who presided over Mr Kaushik’s case did not preside over the Maharaja Matters, and further Livesey concerned the context of a judge exercising judicial power, not administrative decisions by a member of a Tribunal who is not a judicial officer; and
c)the matters relied upon by Mr Kaushik do not establish apprehended bias on the part of the Tribunal, and in reality, Mr Kaushik is attacking the merits of the Tribunal Decision and having regard to the statutory scheme for review of decisions by the Tribunal, and the facts and circumstances of the Tribunal hearing, the Migration Act s.359A letter and the Tribunal Decision compel the Court to conclude that the Tribunal Decision is not affected by jurisdictional error on the basis of apprehended bias.
In respect to unreasonableness, the Minister submitted:
a)having accepted that Mr Kaushik had undertaken 300 hours of work experience at Maharaja the question for the Tribunal was whether it was satisfied that Mr Kaushik had worked an additional 600 hours so as to support the claim which he made in his TRA that he had 900 hours of work experience as a cook. Further the period within which the Tribunal was required to be satisfied that Mr Kaushik had worked a total of at least 900 hours was the period between 2 August 2008 and 4 June 2009, as this was the period that was specified in the letter from Mr Binning which was provided by Mr Kaushik in support of his claim to have worked at least 900 hours;
b)there was nothing illogical or irrational in the Tribunal concluding at [39] of the Tribunal Decision that it was not persuaded that Mr Kaushik undertook 900 hours of work experience within that period on the information before it: Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577 at [40] per Gleeson CJ and McHugh J;
c)it was certainly not illogical or unreasonable for the Tribunal in all the circumstances not to accept Mr Kaushik's own evidence that he had completed at least 900 hours of work experience as a Tribunal is not required to accept uncritically any and all claims made by an applicant, nor does a Tribunal have to possess rebutting evidence before holding that a particular assertion is not made out: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 at 451 per Beaumont J; Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559; (1997) 144 ALR 567; (1997) 71 ALJR 743; [1997] 9 Leg Rep 2, CLR at 596 per Kirby J;
d)there was also no illogicality or unreasonableness on the part of the Tribunal in not concluding that Mr Kaushik had worked 900 hours at the Maharaja on the basis of the evidence of Mr Singh and Mr Devgan, because, as the Tribunal noted at [34] of the Tribunal Decision, the periods of work undertaken by Mr Singh and Mr Devgan did not cover the entire period which Mr Kaushik claims to have worked there, and neither claimed that they worked exactly the same shifts and hours as Mr Kaushik;
e)in relation to the submission by Mr Kaushik that his employment and employment offers tended to support that he had developed the necessary skills as a cook during the claimed period of voluntary work experience, the Tribunal did not accept that this supported his assertion of undertaking a minimum of 900 hours of work experience as a cook at the Maharaja in the period from 2 August 2008 to 4 June 2009 and on the basis of the probative evidence and material before the Tribunal, a logical decision-maker could have come to the same conclusion as the Tribunal: see Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367 (“SZMDS”) at [135] per Crennan and Bell JJ;
f)reference is made to Mr Kaushik's evidence to the Tribunal that he worked between 8 or 9 hours between around 2.00pm and 10.00pm or 11.00pm at the restaurant's Monday buffet night, and other shifts on the weekend to make up 20 hours a week, that he worked full time on the Christmas break for four weeks, and that it took him "about almost 11 months" to complete his 900 hours, though in the letter of Mr Binning dated 4 June 2009 which was presented to TRA, Mr Binning stated that Mr Kaushik had worked 900 hours between 2 August 2008 and 4 June 2009. This is a period of only 44 weeks (about 10 months), so that allowing for 40 hours per week during the four weeks' Christmas break, the total of hours worked based on Mr Kaushik's evidence to the Tribunal would be 960 hours yet in his statutory declaration made on 4 June 2013 he declared he worked every Monday night at Maharaja from 5.30pm to 11.00pm as a cook, and if 5.5 hours was allowed for Monday night’s rather than the approximately 8.5 hours which Mr Kaushik subsequently advised the Tribunal, during a period 40 weeks, would result in a reduction of 120 hours, making the hours worked in the relevant period approximately only 840 hours; and
g)the Tribunal conclusion in SZTAP that there was not a real chance that the appellant would be abducted or otherwise seriously harmed by "these men" and provides no basis for this Court to conclude that the conclusion of the Tribunal here, that it was not persuaded that Mr Kaushik undertook 900 hours of work experience on the information before it, was illogical.
In respect of the Public Interest Criterion the Minister submitted:
a)this ground amounts to an attack on the merits of the Tribunal's Decision, and what can be said in relation to "compelling reasons" may also be said of the expressions "compelling circumstances" and "compassionate circumstances": McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096 at [10] per Whitlam J;
b)the Tribunal's conclusion that it is not uncommon for a husband and wife to have spent time apart during their marriage is a conclusion that was open to the Tribunal on the basis of its own knowledge and experience;
c)there is no error by the Tribunal in not referring specifically to the "quality of the relationship" as the Tribunal is not obliged to refer in its reasons to all of the evidence before it, and is only bound to set out findings on material questions of fact: Migration Act, s.368(1)(c)-(d); and
d)in concluding that the requirements of the Public Interest Criteria should not be waived, the Tribunal took into account all of the circumstances raised by Mr Kaushik, and there was no error in concluding that cl.4020(1) of sch.4 of the Migration Regulations should not be waived.
Section 65 of the Migration Act and the Migration Regulations Public Interest Criteria
Before considering the grounds of the Judicial Review Application it is necessary to make some observations about s.65 of the Migration Act and sch.4, cl.4020 of the Migration Regulations, the Public Interest Criteria.
The grant or refusal of the Skilled Visa was subject to the Minister being satisfied that Mr Kaushik met the criteria in sch.2, cl.886.225 of the Migration Regulations. The satisfaction of the Minister is a condition precedent for the discharge of the mandatory obligation imposed by s.65 of the Migration Act to grant or refuse the Skilled Visa: Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293; (2000) 170 ALR 553; (2000) 74 ALJR 775; (2000) 21(7) Leg Rep 11 at [41] per Gleeson CJ, Gaudron, Gummow, and Hayne JJ. Therefore, where the Minister is not satisfied an applicant meets the criteria for a visa, there is no discretion for the Minister to not refuse that visa.
It was necessary for Mr Kaushik to satisfy the Public Interest Criteria, namely cl.4020(1) of sch.4 of the Migration Regulations which was as follows:
(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.
A “bogus document” defined in s.5 of the Migration Act 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.
In the Full Court of the Federal Court in Sun v Minister for Immigration & Border Protection [2016] FCAFC 52 (“Sun”) state:
a)at [34] per Flick and Rangiah JJ it is said that:
In unravelling these provisions, it is relevantly necessary to give content to the statutorily imposed requirements that a decision-maker:
be “satisfied” that the criteria had been satisfied; and
has before him “no evidence” that a “bogus document” had been given to the Minister.
It is, of course, the particular statutory context in which these requirements are imposed that primarily dictates the content of each requirement. Central to the present statutory context are these two concepts of the Minister or the Tribunal being “satisfied” and that of a “bogus document”.
b)It is explained that at [17] per Logan J and at [86]-[87] per Flick and Rangiah JJ explain:
17…But the pejorative quality in concluding that a document is a “bogus document” as defined is about the document, not about the applicant or any other person’s state of knowledge and, even then, all that need be present is material to raise a reasonable suspicion.
86. Of present importance is that there remained “objective circumstances” upon which the “reasonable suspicion” of the Tribunal was founded. The “objective circumstances” could not properly be characterised as mere “surmise or conjecture”: George v Rockett (1990) 170 CLR at 115 to 116. Admittedly the Tribunal’s statement of its “satisfaction” that the documents were “bogus documents” carried with it a recognition that there was “an element of fraud or deception”: Trivedi [2014] FCAFC 42 at [33], (2014) 220 FCR at 177 to 178 per Buchanan J. That was a finding not lightly to be made. Whether a different decision-maker would have formed the same state of suspicion was not to the point; what was relevant was that the state of “reasonable suspicion” reached by the Tribunal was a conclusion open to it on the facts.
87. Once there was an objective factual foundation for the Tribunal’s conclusion, any further attempt to challenge those conclusions trespassed into the impermissible attempt to cavil with factual conclusions not disclosing any error of law.
What necessarily forms from these observations is that the Tribunal must hold a “reasonable suspicion” the TRA was a bogus document, and it need not prove Mr Kaushik had been involved, or that Mr Binning was personally aware of the fraud. The “suspicion” must be reasonably held and supported by some evidence.
Consideration
Requirement for jurisdictional error
A decision by the Tribunal may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. The exercise of a power of judicial review is a review limited to determining the legality of the Tribunal Decision: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165; (2003) 198 ALR 59 at [114] per Kirby J (“S20/2002”), and the legality of the Tribunal Decision may be impugned as jurisdictional error where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 (“SZBEL”).
The onus of establishing a ground of review in judicial review proceedings is upon the applicant: unless proved otherwise administrative decisions and acts are presumed to be valid: SZOPX v Minister for Immigration & Citizenship [2011] FCA 552 at [11] per Flick J.
In the context of these proceedings and the issues that arise, it should be kept in mind that the Tribunal is not bound by legal technicalities and rules of evidence: Migration Act, s.3; Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 77 ALJR 1909; (2003) 201 ALR 437 at [56] per Gummow and Heydon JJ. The Court notes this as arguments raised by Mr Kaushik in some respects advert to rules of evidence and the admissibility of material.
Grounds generally
The Minister submitted Mr Kaushik had failed to particularise the grounds of the Judicial Review Application, and this was sufficient to dismiss the Judicial Review Application on that basis alone. The Minister was correct in making this observation, as it is established and accepted that a failure to particularise, including in migration proceedings may be a sufficient basis for dismissal: WZAVW v Minister for Immigration & Border Protection [2016] FCA 760 at [35] per Gilmour J; AQN15 v Minister for Immigration & Border Protection [2016] FCA 571 at [5] per Logan J. Mr Kaushik asserting the Minister did not ask for any particulars as a response to this submission is clearly inadequate, particularly when one considers it is Mr Kaushik who must establish jurisdictional error.
Notwithstanding the above comments, the Court has not dismissed Mr Kaushik’s Judicial Review Application on the basis of failure to particularise as on the face of the oral and written submissions provided by Mr Kaushik he has to some extent particularised or refined these grounds of review: Mr Kaushik’s Written Submissions filed 1 June 2016 and 24 June 2016 and Transcript.
Three other cases before the Tribunal (Maharaja Matters)
In respect of the Maharaja Matters, Mr Kaushik contended that:
a)the Tribunal was required to provide the adverse information regarding the Maharaja Matters to Mr Kaushik prior to the Tribunal hearing;
b)the Tribunal was required to provide all the documents and files related to the Maharaja Matters, particularly the documents and files sought by Mr Kaushik’s lawyer, in order to allow a fair opportunity to comment on the information;
c)the Tribunal did not provide a real and meaningful opportunity for Mr Kaushik to give evidence and comment; and
d)the Maharaja Matters were irrelevant considerations which the Tribunal should not have considered.
Notice of adverse information
Mr Kaushik’s contended that without “having access to the actual evidence which was adduced before the various tribunal…” he was denied procedural fairness to respond to the adverse information: CB 499. Despite persistently seeking to obtain the Maharaja Matters respective Tribunal decisions, Mr Kaushik was unable to obtain access to these as the Tribunal considered “that sufficient information has been provided to enable you to respond and will not be releasing the files and other material requested” : CB 504.
The Court must consider s.357A of the Migration Act and for it to have been breached Mr Kaushik must prove that the Tribunal failed to act in a way that was fair and just. The Court needs to consider “the clarity with which the information has been identified and indeed the character of that information”: SZMTJ v Minister for Immigration & Citizenship (No 2) [2009] FCA 486 at [52] per Flick J. Further, the Federal Court in SZNKO v Minister for Immigration & Citizenship [2010] FCA 297; (2010) 184 FCR 505; (2010) 267 ALR 35 (“SZNKO”), highlighted that "information" in some circumstances will be unable to be divorced from the context in which it appears, and the extent to which surrounding context must be disclosed is determinant of the individual facts, and the yardstick of s.357A of the Migration Act requires the disclosure of such information as is necessary to ensure that the Mr Kaushik was provided with a real and meaningful opportunity to make his case: SZNKO at [23] per Flick J.
In AZAAD v Minister for Immigration & Citizenship [2010] FCAFC 156; (2010) 189 FCR 494; (2010) 274 ALR 55 at [39] per Besanko J it was stated that:
"[t]here is no requirement on the tribunal to give an applicant advance notice of the issues of concern to it, that is to say, in advance of the hearing":
In light of s.359AA of the Migration Act providing the Tribunal power to put information to an applicant during the Tribunal hearing for comment, and if an applicant seeks extra time to comment, allowing the Tribunal to adjourn if it is considered reasonably necessary: Migration Act, s.359AA(b)(iii)-(iv), it is plain to the Court that the Migration Act allowed the Tribunal to put information to Mr Kaushik at the Tribunal hearing, and it did not need to give advance notice of that information to Mr Kaushik.
Contrary to what was put at hearing by Mr Kaushik that he had no idea what the “issue is”, notice of Mr Binning’s credibility being doubted was communicated clearly at the Tribunal hearing, if not earlier. Furthermore, Mr Kaushik was on notice of the issues of credibility of Mr Binning when the Initial Tribunal Decision flagged evidence in relation to some aspects of what Mr Binning had provided as not being accepted. To suggest the Tribunal is required to give advance notice of concerns and issues to Mr Kaushik cannot be sustained as that exceeds the obligations of procedural fairness as prescribed in the Migration Act. While the Tribunal may well have had information in the months prior to the Tribunal hearing, there was no evidence to suggest this was the case, and when one refers to s.359 of the Migration Act the only obligation imposed on the Tribunal when seeking information was that it must have regard to that information in the making of the Tribunal Decision.
The following was stated in the Tribunal invitation to comment on 5 May 2015:
You provided to the Tribunal, previously constituted to hear your case, statutory declarations from Mr Binning and his wife, in her capacity as the head chef of the restaurant, confirming that you had completed 900 hours' work experience as a Cook…
The particulars of the information are:
At previous Tribunal hearings of other applicants who claimed work experience at the Maharaja Restaurant, in cases constituted by other Tribunal members, Mr Binning gave different answers when asked about how many students he had working at the restaurant for work experience in 2008 and 2009. He gave oral evidence at one hearing that he had taken on 3 work experience students at the restaurant. Mr Binning also gave evidence before another Tribunal member. During one of the hearings he said there were 6 students, at another that he had signed 'about 10 references' and at a third hearing he confirmed that there were between 6 to 9 students.
In addition when Mr Binning and his wife appeared as witnesses to give evidence at Tribunal hearings of other claimed work experience students, their evidence was vague and inconsistent with each other. Their evidence as to when and how many staff were employed each night differed and they also gave inconsistent evidence about record keeping in relation to the students. They had difficulty recalling who worked there and provided different names when asked about the students who worked at Maharaja Restaurant.
The evidence referred to above which was given at different hearings before the same Tribunal matter was considered by the Court in the matters of Bajwa v MIBP [2014] FCCA 2890, Sekhon v MIBP [2014] FCCA 2834 and Nanre v MIBP [2015] FCCA 134.
This information is relevant because as Mr Binning has provided inconsistent information over a period of time regarding the numbers of students undertaking work experience at Maharaja Restaurant, the Tribunal may consider him to be unreliable and lacking in credibility. The Tribunal may not accept Mr Binning's subsequent claim that he made a mistake about failing to identify you as an employee when interviewed by the Department officers. The Tribunal may also consider his wife to be unreliable and lacking in credibility. It may doubt the content and reliability of Mr Binning's and his wife's statutory declarations of 11 October 2013 and 7 June 2013 where they stated that you had 900 hours of work experience as a cook at Maharaja Restaurant. The Tribunal may not accept that you completed over 900 hours of work experience at Maharaja Restaurant as claimed and it may find that the documents regarding your work experience at that business that you had provided to TRA were based on a false or misleading statement. If the Tribunal reasonably suspects that your TRA skills assessment was obtained as a result of a false or misleading statement, whether or not made knowingly, the Tribunal may find that the skills assessment is a 'bogus document'. This may lead the Tribunal to find that you had given, or caused to be given, to the Minister or an officer, a bogus document in relation to the application for the visa.
The following was put to Mr Kaushik at the Tribunal hearing:
Well, I'm just putting to Mr Kaushik that Mr Binning's evidence I have concerns about. So what I'm saying to Mr Kaushik is that Statutory Declaration that he (ui) now after the interview, the site visit that you did the 900 hours I'm not necessarily going to accept that. Okay. And the reason is because he's given various responses as to the number of students that did work experience for him. I'll be putting this to you for your comment, inviting your comment or response, but at the moment I'm just raising this so that you're aware that I'm not necessarily going to accept that Statutory Declaration word for word. Okay. Now Mrs Binning as well you've provided a Statutory Declaration from her saying that you've done the 900 hours but she too has given evidence to the Tribunal in different matters and that also is not entirely consistent with generally the information that's been provided. So she's given names as to people who she said did the work experience. She said that, and these don't include your name. Okay. So that is something else that I need to weigh up, that the evidence from Mr and Mrs Binning…
And obviously there's been, as I mentioned earlier there were potentially 30 or even more students ... ... who had claimed work experience with them. So there have been a number of matters before the Tribunal, differently constituted… And they have given evidence in some of those cases regarding sometimes giving names, sometimes just talking about the numbers of students. So those are things that raise ... ... concerns to me ... ... about the Statutory Declarations that they've provided in support of your case
[Tribunal Transcript at pp.19-20.]
Mr Kaushik submitted it was unjust and unfair for the Tribunal to raise the information at the Tribunal hearing, without any notice and expect a meaningful response. Referring to Minister for Immigration & Border Protection vWZARH [2015] HCA 40; (2015) 256 CLR 326; (2015) 90 ALJR 25; (2015) 326 ALR 1 (“WZARH”), Mr Kaushik contended he had been denied elementary procedural fairness in the loss of his chance to “impress” as a result of the impression formed by the Tribunal that he “couldn’t respond” when questions were asked about the Maharaja Matters.
Unlike in WZARH, there was no change in the Tribunal’s usual procedure, the Tribunal put information to Mr Kaushik pursuant to s.359AA of the Migration Act as it was entitled to do. Contrary to the submission of Mr Kaushik, the Court does not believe the Tribunal denied him an opportunity to provide a meaningful response, and to the extent one may consider otherwise, no practical injustice occurred as Mr Kaushik was then invited under s.359A of the Migration Act to provide written submissions on the issues post hearing. When reading the Tribunal Decision it cannot be implied that the Tribunal formed an adverse impression of Mr Kaushik because of the manner in which Mr Kaushik responded to questions about the Maharaja Matters. Rather, the Tribunal stated it was not “convinced” by the evidence Mr Kaushik provided at the Tribunal Hearing “without more” and used as an example his evidence as to the appearance of the dining area at Maharaja as being information that could have been obtained as a customer, or on the restaurant website as the Tribunal did during the Tribunal hearing. There was no mention of Mr Kaushik’s responses to the questions regarding the Maharaja Matters made at Tribunal hearing, and the subsequent questions asked by the Tribunal as appears from the Tribunal Transcript in no way reflect that the Tribunal deprived Mr Kaushik of an opportunity to meaningfully participate.
In light of what was put at hearing and the invitation to comment, the Court finds the clarity and character of the information is sufficient for the Tribunal to have provided a meaningful opportunity to comment. The substance of the information put to Mr Kaushik was repeated in the Tribunal Decision at CB 546-547 at [29]-[30]. Mr Kaushik responded to this information by way of pleading to the Tribunal that he had genuinely completed his 900 hours, that he did not know anything about any other people, that he contacted Mr Binning when the Delegate wrote to him about the investigation, and that he was a good cook and chef because he is now working at a hotel and has appeared on a radio cooking segment.
In addition, the Court’s view is that Mr Kaushik was alert to the possibility that the Tribunal could raise issue with the investigation of Maharaja, as in the Initial Tribunal Decision this was put to him during the hearing, and Mr Kaushik himself bought to the attention of the Initial Tribunal a finding of a different Tribunal that another applicant had genuinely completed his 900 hours of work experience at Maharaja, and having done so it was likely that he was on notice that there had been other similar matters before the Tribunal: CB 358. There was also evidence in the Initial Tribunal Decision that Mr Binning’s evidence and credibility was in issue, and while the Court accepts that the Initial Tribunal Decision was remitted, it does not mean that the findings and views in the Initial Tribunal Decision were not indicative of how the evidence might be interpreted by a subsequent Tribunal. Therefore, in the SZBEL sense, Mr Kaushik was not deprived of procedural fairness as he was on notice of the determinative issue by way of the Delegate’s Decision, the Initial Tribunal Decision, the Tribunal putting information pursuant to s.359AA of the Migration Act, and the Tribunal further inviting Mr Kaushik to comment on the adverse information pursuant to s.359A of the Migration Act.
Mr Kaushik was aware that the source of the information was other applicants whom had sought to obtain a visa as he had, he was aware of the substance of that information being Mr Binning and his wife had provided inconsistent evidence, and finally was on notice that the nature of the information was that Mr Binning and his wife were not credible witnesses.
Prior access to material
Mr Kaushik contended that he had no access to and was not supplied with the Tribunal decisions in the Maharaja Matters, yet the Tribunal had access to these documents prior to the Tribunal hearing and the Tribunal relied upon the evidence that was “purportedly” contained in the Mararaja Matters Tribunal decisions of a differently constituted Tribunal: at CB 546-547 at [29]-[30].
Mr Kaushik’s lawyer submitted a written response maintaining that he cannot reasonably comment on the credibility issue without the Tribunal decisions and transcripts of the Maharaja Matters. The provision of the transcript of the Maharaja Matters was not expressly sought by Mr Kaushik in his enquiries to the Tribunal, rather he emphasised the need for the Tribunal decisions in those matters. Even at common law the decision-maker need not provide precise detail of all the material it intends to rely, rather must simply be satisfied Mr Kaushik is informed of the substance of the issue, not the “chapter and verse”: Karina Fisheries Pty Ltd v Evans [1988] FCA 330; Minister for Immigration & Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223; (2012) 287 ALR 523 at [66] per Flick J; MZYRD v Minister for Immigration & Citizenship [2012] FCA 830 at [35] per Murphy J.
The Court notes that s.362A of the Migration Act states:
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).
This does not assist Mr Kaushik as the material sought was not given or produced to the Tribunal, in the relevant sense, for the purposes of Mr Kaushik’s review, and to the extent it was argued Mr Kaushik was denied procedural fairness as the Tribunal did not provide materials prior to the hearing, the Court does not agree: s.362A(3) Migration Act.
Real and meaningful opportunity
Mr Kaushik contended that he was not given a proper and meaningful opportunity to give evidence and comment at the Tribunal hearing.
The Court notes that the Tribunal invited Mr Kaushik to the Tribunal hearing and gave him an opportunity to present his evidence and participate, and did so in a manner which was capable of being characterised as a hollow shell or an empty gesture: Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188 at [31] per Goldburg J.
The Tribunal:
a)convened a ribunal hearing with Mr Kaushik in which he participated and his wife was given an opportunity to provide evidence: see Tribunal Transcript generally;
b)allowed Mr Kaushik to be assisted by a lawyer at the Tribunal hearing, indeed the same lawyer who appeared as Counsel before this Court;
c)made inquiries and asked questions of Mr Kaushik throughout the hearing to clarify his statements, and also to ensure Mr Kaushik had an understanding of what the Tribunal was asking him;
d)invited Mr Kaushik to comment on adverse information at the Tribunal hearing, and also provided an opportunity to make submissions after the Tribunal hearing in writing;
e)allowed an extension of time for Mr Kaushik’s lawyer to make submissions; and
f)in response to a request under s.362 of the Migration Act, Mr Kaushik’s lawyer was provided with access to the entire Tribunal file relating to Mr Kaushik, including the Delegate’s file, and advised there were no legal notes/advice before the Tribunal relating to the Maharaja Matters.
Mr Kaushik at no time during the Tribunal hearing sought an adjournment, but his lawyer made repeated assertions that he could not be expected to respond to the information put and he did not have the knowledge to make an informed response without having had a chance to consider and investigate. Those assertions were submissions or a complaint, they were not, and did not take the form of, a request for an adjournment. In any event, the Tribunal allowed Mr Kaushik’s lawyer to file post-Tribunal hearing submissions in response. Therefore, in respect of any claimed unreasonableness in the Tribunal putting the information to Mr Kaushik in the manner it did at the Tribunal hearing, and in allowing further submissions after the Tribunal hearing, nothing in the Li sense arises.
The Court is of the view that Mr Kaushik was provided a real and meaningful opportunity to give evidence and comment at the Tribunal hearing. No jurisdictional error has been made by the Tribunal in this regard.
Relevancy of the Maharaja Matters
The relevance of the Maharaja Matters was raised as an issue by Mr Kaushik, and he suggested that as he was not involved in the Maharaja Matters, they are irrelevant and should not be taken into account. In contrast to this submission, it should be noted Mr Kaushik also submitted that the Tribunal failed to take into account a relevant consideration, being Mr Amadeep’s Tribunal decision whereby a different Tribunal member examining the conduct of Mr Binning accepted Mr Binning’s evidence.
The position of Mr Kaushik is somewhat confusing, as it appears he considers the Tribunal decision in which the Tribunal accepted Mr Binning’s evidence as relevant, but the Maharaja Matters as irrelevant.
Taking into account an irrelevant consideration is only established where it can be found some irrelevant factor was taken into account, and that should not be confused with taking into account particular pieces of evidence: Western Australian Land Authority v Minister for Sustainability, Environment, Water, Population and Communities [2012] FCA 226; (2012) 291 ALR 52 at [53] and [56] per Gilmour J: Li Shi Ping & Anor v Minister of Immigration, Local Government & Ethnic Affairs [1994] FCA 1512; (1994) 35 ALD 225 at [38] per Carr J. Taking into account the findings of the Maharaja Matters was not “legally irrelevant” to assessing Mr Kaushik’s Skilled Visa application and formed part of the context in which the Tribunal had to assess the TRA to determine if it was a “bogus document”.
The Maharaja Matters were not an irrelevant factor, rather they were material and information before the Tribunal, which is not bound by the rules of evidence and admissibility. The Tribunal did not become pre-occupied and distracted by the Maharaja Matters, and whether Mr Kaushik or Mr Binning were participants in the fraud or unknowing victims, rather the Tribunal considered if Mr Kaushik had undertaken the 900 hours, and it referred to what evidence it had before it to make that determination.
To the extent it was argued the Maharaja Matters were irrelevant to assessing the credibility of Mr Binning in the present case, the Court disagrees. As stated above, the Maharaja Matters were relevant information. The Tribunal is empowered to direct an investigation and gather information: Migration Act, s.359. Furthermore, findings as to credibility are generally a matter for the Tribunal: Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407 at [67] per McHugh (“Durairajasingham”). The Court does not consider the credibility findings about the Binnings were formed in circumstances whereby Mr Kaushik was denied procedural fairness, nor were they based upon no logical or probative basis or unreasonable: ARG15 v Minister for Immigration & Border Protection [2016] FCAFC 174; (2016) 250 FCR at [83] per Griffiths, Perry and Bromwich JJ.
No jurisdictional error arises in taking into account the Maharaja Matters, or the adverse credibility findings that were made in the Maharaja Matters which informed findings in the Tribunal Decision.
The Tribunal was a contradictor
Mr Kaushik contended that the Tribunal failed to properly conduct a review for the purposes of ss.348 and 349 of the Migration Act and rather adopted the position of a contradictor.
Mr Kaushik’s lawyer set out the factors relied upon for asserting that the Tribunal member became a contradictor as follows:
a)the Tribunal ordered investigatory material from the Department of Immigration and Border Protection about the Maharaja Restaurant which was received on 3 December 2014 but the material was never supplied to the applicant at the Tribunal hearing. Instead the Tribunal wanted to surprise the applicant with this material at the Tribunal hearing and even at the Tribunal hearing did not supply a copy of the material to him: [4]-[6] of the Boccabella Affidavit;
b)the Tribunal conducted its own investigation which turned up three other cases where the Maharaja Restaurant was adversely mentioned. No notice was given to the applicant that these other cases existed prior to the Tribunal hearing, the existence of those cases was sprung upon the applicant at the Tribunal hearing with allegations put to him which he had no prospect of being able to answer;
c)the Tribunal had done an evidentiary analysis of these three decisions prior to the Tribunal hearing and put that analysis to the applicant at the Tribunal hearing without notice to him;
d)the citations to the judgments referred to by the Tribunal was the only material given to the applicant about these three cases;
e)in the Tribunal Decision at CB 546-547 at [29] the Tribunal reveals it investigated a fourth Tribunal case undertaken by a different member and purportedly the Maharaja Restaurant manager gave different evidence. The name of that matter was never revealed and no information or papers about that Tribunal Decision was ever revealed to the applicant or his representative. The first time this fourth case was ever revealed was in the Tribunal Decision at CB 546-547 at [29];
f)Mr Kaushil handed the Tribunal a copy of a Tribunal decision in favour of Mr Devgan Amadeep who also did work experience at the Maharaja Restaurant. The Tribunal seemed to ignore that Tribunal decision even though it showed that one person at least had worked for 900 hours on a voluntary basis at the Maharaja Restaurant; and
g)at page 55 of the Tribunal Transcript, the applicant's lawyer sought to have questions asked about how the applicant calculated his 900 work experience. The Tribunal cut the lawyer off, yet this was crucial to deciding the matter. The exchange is as follows:
LB : I think the member possibly wants some detail, you know like months and how exactly did you come up with the 900 plus figure.
Mem: Okay Mr Boccabella, I'll ask questions if I need to do that.
The High Court in SZBEL at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said that:
First, there may well be cases, perhaps many cases, where either the delegate’s decision, or the Tribunal’s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant’s account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
The Court notes that s.348(1) of the Migration Act provides that, subject to subsection (2), if an application is made under s.347 of the Migration Act for review, the Tribunal must review the decision. In the Court’s view the Tribunal's reasons clearly demonstrate that the Tribunal has complied with its obligation under s 348 by carrying out a review of the Delegate's Decision: CB 542-552. Further, s.349 of the Migration Act sets out the powers of the Tribunal for the purpose of conducting a review and the kinds of decisions it may make, and s 357A provides that Division 5 of Part 5, and ss.375, 375A and 376 and Division 8A, insofar as they relate to Division 5, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule, and that the Tribunal must act in a way that is fair and just.
The Court is of the view that the Tribunal did not act as a contradictor, particularly in relation to the elements, submitted by Mr Kaushik’s lawyer, set out above, and no jurisdictional error can be established in the Tribunal Decision on this basis.
Not open to persuasion
At hearing Mr Kaushik stated he did not wish to suggest the Tribunal was biased on the basis of the credibility findings in the Maharaja Matters alone, rather that when one considers the circumstances in which the Tribunal acted “secretly” and did not provide any information, acted as a contradictor, and was not open to persuasion, these elements together manifest an apprehension of bias.
The Court notes that the High Court in Minister for Immigration & Multicultural Affairs v JiaLegeng [2001] HCA 17 (2001) 205 CLR 507; (2001) 75 ALJR 679; (2001) 178 ALR 421 (“Jia-Legeng”) at [71]-[72] per Gleeson CJ and Gummow J stated:
[71] … Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
[72] … The state of mind described as bias in the form of prejudgement is one so committed to a conclusion already formed as to be incapable of alternation, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion. (footnotes omitted)
The Tribunal must have a fair and unprejudiced mind when coming to decide a question, including one addressed on another occasion, however, that does not mean that the Tribunal must have a blank or empty mind on the topic: SZQHH v Minister for Immigration & Citizenship [2012] FCAFC 45; (2013) 200 FCR 223 at [38] per Rares and Jagot JJ. Further, that the Tribunal has formed or expressed tentative views on an issue in question, would not, at least of itself, give rise to the possibility of bias in the mind of a fair-minded observer: Duncan v IPP [2013] NSWCA 189; (2013) 304 ALR 359 at [151] per Bathurst CJ.
In NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 at [12], [19], [20] and [115] per Allsop J the following observations were made on apprehended bias:
12. The existence in any given case of arbitrary unreasoned conclusions made without a scintilla of evidence may lay a foundation for an argument that the decision-maker moulded his or her fact finding to reach a particular result. Such may also lay the foundation for argument that the decision reached was capricious, arbitrary, made according to humour or private opinion rather than reason and justice, or that it was unreasonable
19…. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate
20. At least in the absence of the identification of some prejudice or interest in the Tribunal, for a complaint of apprehended bias based on the conduct of the Tribunal in its procedure and the dealing with material before it in its reasons to be meaningful, it must carry with it an assertion of the apprehension of a possibility of predisposition. That is, the predisposition of the Tribunal towards a result, other than a result reached by an evaluation of the material before it in a fair way with a mind that was open to persuasion in favour of the person in question…
115... Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.
Mr Kaushik’s submissions referring to the Tribunal acting as a contradictor and not being open to persuasion are founded on the assertion the Tribunal had closed its mind to the question of Mr Binning’s credibility. The references to Livesey were to the effect that a judicial officer whom had made credibility findings about an individual in one matter should not preside over a different matter where that individual is again providing evidence and the Tribunal ought to have followed the same process and that it didn’t was an example of apprehended bias. Livesey has been cited in a significant number of matters before this Court and the Federal Court when issues of apprehended bias have been raised concerning the Tribunal in migration proceedings, though in most circumstances this is to refer to the well settled test of apprehended bias that a fair-minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member may not have brought an impartial mind to the assessment of the materials and the relevant issues: Ex parte H & Anor at [27]-[28] per Gleeson CJ, Gaudron and Gummow JJ.
The judges in each of the Maharaja Matters that were before this Court dismissed the claims of bias raised against the same Tribunal member presiding over those cases. Furthermore, in Nanre v Minister for Immigration & Border Protection [2015] FCA 528 at [46]-[47] per White J affirmed the finding that there was no apprehended bias in the same Tribunal member presiding over the Maharaja Matters:
46…The circumstance that a decision maker has previously expressed a view on the same, or a similar, subject matter does not of itself give rise to an apprehension that the decision maker might not bring a fair and impartial mind to the current decision: Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352. It is commonly the case that administrative decision makers have to decide the same or similar issues raised by different claimants in separate applications. The decision maker must bring a fair and unprejudiced mind to the decision making in such cases but that does not mean that the decision maker may not already have some views. The statement of the High Court in R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 554 is pertinent in this respect:
Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it….
47. In short, what is required is that decision makers bring to their task an impartial mind which is open to persuasion having regard to the individual circumstances of each applicant’s claim.
Mr Kaushik seeking to suggest the Tribunal Decision may have been infected by the Tribunal relying on a potentially “biased” Tribunal in the Maharaja Matters is unfounded where the Court has expressly ruled no such bias was present. Even in the absence of such express findings by the Court, it is difficult to suggest Mr Kaushik ought to be allowed to “go behind” the Maharaja Matters respective Tribunal decisions to implore an error in those decisions infected the Tribunal Decision.
In Huluba v Minister for Immigration & Ethnic Affairs (1995) 59 FCR 518 at 516 per Beazley J (“Huluba”) the Federal Court said:
Procedural fairness requires a decision-maker to apply an independent mind to the application subject of administrative action. A decision-maker is entitled to have regard to research and investigations carried out by others as well as to assessments and reports and recommendations prepared by others in the course of the administrative process. A decision-maker may have regard to and adopt, if thought appropriate, the reasoning of some other person involved in the administrative process. Thus a decision-maker could accept the reasoning of an officer whose function it had been to provide a recommendation and could adopt verbatim, such report or recommendation, provided at all times that the decision was the independent decision of the decision-maker.
It is not enough to found a claim of bias or contend the Tribunal was not open to persuasion to simply point to the Tribunal having relied on the findings in the Maharaja Matters made in circumstances “substantially the same”. The Tribunal did not act with “unnecessary coyness” in undertaking its own investigation as Mr Kaushik submitted. It was empowered to conduct any enquiry pursuant to s.363(3) of the Migration Act, and there is no obligation to inform an applicant that it was doing so. The following exchange occurred at the Tribunal hearing concerning the Maharaja Matters:
MEM: Well, I'm just putting to Mr Kaushik that Mr Binning's evidence I have concerns about. So what I'm saying to Mr Kaushik is that Statutory Declaration that he (ui) now after the interview, the site visit that you did the 900 hours I'm not necessarily going to accept that. Okay. And the reason is because he's given various responses as to the number of students that did work experience for him. I'll be putting this to you for your comment, inviting your comment or response, but at the moment I'm just raising this so that you're aware that I'm not necessarily going to accept that Statutory Declaration word for word. Okay. Now Mrs Binning as well you've provided a Statutory Declaration from her saying that you've done the 900 hours but she too has given evidence to the Tribunal in different matters and that also is not entirely consistent with generally the information that's been provided. So she's given names as to people who she said did the work experience. She said that, and these don't include your name. Okay. So that is something else that I need to weigh up, that the evidence from Mr and Mrs Binning ...
GK Yes.
MEM ... has not been entirely consistent throughout the period ...
GK: Okay.
MEM ... since the interview.
GK Yeah.
MEM And obviously there's been, as I mentioned earlier there were potentially 30 or even more students ...
MEM ... who had claimed work experience with them. So there have been a number of matters before the Tribunal, differently constituted ...
GK Yes .
MEM . . . not ones that I personally made decisions about.
GK Yes.
MEM And they have given evidence in some of those cases regarding sometimes giving names, sometimes just talking about the numbers of students. So those are things that raise ...
GK Okay.
MEM ... concerns to me ...
GK Okay.
MEM ... about the Statutory Declarations that they've provided in support of your case.
GK Okay.
MEM And as you pointed out earlier I'm looking at your case. I'm not looking at you know the other 30 students necessarily.
The Tribunal had not expressed any conclusive views on the credibility of Mr Binning, rather had indicated the concern the Tribunal had with his statutory declaration in support of Mr Kaushik and the reason why it was concerned. The Tribunal iterated more than once in the hearing that it was concerned with Mr Kaushik’s case, and the purpose of putting to Mr Kaushik the information was a result of it exercising the inquisitorial function to test Mr Kaushik’s claims and provide an opportunity for him to advance whatever argument or evidence he wished. The Tribunal also repeated that the credibility of Mr Binning was going to be weighed with the evidence Mr Kaushik advanced. Indeed the Tribunal accepted the evidence of Mr Singh that Mr Kaushik had worked at Maharaja, however the critical issue was the number of hours Mr Kaushik worked, not that he had in fact worked there.
The Tribunal inquired and asked numerous questions of Mr Kaushik regarding the hours and frequency of his employment, how he travelled to work, the dishes he had learned to cook and the subsequent employment opportunities he had undertaken, and demonstrates that the Tribunal was both of an open mind and open to persuasion, and was not acting as a “contradictor”, but rather was seeking to gather as much evidence from Mr Kaushik as it could to determine if he had truly undertaken the requisite 900 hours of work.
The Tribunal Decision when read fairly as a whole does not indicate to a lay observer a reason to undermine the integrity and impartiality of the Tribunal. When considering the Tribunal Transcript it also leads one to infer the Tribunal had not adopted a closed mind, rather the Tribunal was simply putting to Mr Kaushik inconsistencies and issues it had, and invited him to dissuade the Tribunal. The authorities make clear that any allegation of actual or apprehended bias must be clearly made and evidently proven: Jia Legeng at [59] per Gleeson CJ and Gummow J. Mr Kaushik has failed to prove the Tribunal was not open to persuasion, or that the Tribunal had a “closed mind”.
Mr Kaushik referred to Khan in asserting the Tribunal did not undertake a ''proper, genuine and realistic consideration to the merits". Recent judicial treatment of this concept has warned that taken out of context and without understanding their original provenance the phrase "proper, genuine and realistic" is apt to encourage a slide into impermissible merits review: Te Puke v Minister for Immigration & Border Protection [2015] FCA 398; (2015) 230 FCR 499 at [79] per Wigney J.
When examining the Tribunal Decision as a whole and without an overzealously searching for error, the Court is satisfied the Tribunal gave proper genuine and realistic consideration to Mr Kaushik’s evidence. The Tribunal did not act as a contradictor, rather engaged extensively with Mr Kaushik to obtain a significant amount of information to assist in determining if he had worked 900 hours, and there is no evidence on the face of the Tribunal Decision, nor in the Tribunal Transcript, that the Tribunal was not open to persuasion. The Tribunal did not express a concluded view and regularly reminded Mr Kaushik what is was required to weigh and consider, placing him on notice of the issues and allowing him ample opportunity to put his case.
No jurisdictional error by way of an apprehension of bias is established in the Tribunal Decision.
Unreasonableness by way of illogical and inadequate reasons
Mr Kaushik contended that cumulatively the Tribunal Decision was unreasonable, and the pathway of reasoning was improper when one considers each of the submissions and claims referred to above, citing the plurality in Li who referred to reasonableness as being adjudged by the standard set in s.357A(3) of the Migration Act:
the Tribunal must act in a way that is fair and just.
In Li at [76] per Hayne, Kiefel and Bell JJ it was stated:
‘[u]nreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification’.
When determining if the Tribunal has acted unreasonably, the Court must give close attention to the scope and purpose of the statutory functions conferred upon the Tribunal: Li at [74] per Hayne, Kiefel and Bell JJ; Ministerfor Immigration & Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1; (2016) 329 ALR 491 at [9] per Allsop CJ. Again in Li at [28] per Gleeson CJ noted a decision like one of the Tribunal is bounded by 'rules of reason' derived from the Migration Act and a Tribunal decision will be affected by jurisdictional error where it is 'arbitrary or capricious or … abandon(s) common sense'.
The main issue Mr Kaushik pressed with the unreasonableness ground was with the reasoning of the Tribunal in making the at [33]-[35] of the Tribunal Decision, which were as follows:
33. On the information before it, the Tribunal considers there is sufficient evidence to find that the applicant undertook 300 hours of work experience at Maharaja Restaurant. It is prepared to accept that, while the letter from Holmes College does not identify the restaurant in which he undertook the required work experience for completion of his course there, evidence from other sources support his claim to have undertaken work experience at Maharaja Restaurant. This includes that of Mr Harpreet Singh, who confirmed that the applicant had also worked at the restaurant as a volunteer cook while he was working there. Mr Harpreet Singh claims to have worked there on a voluntary basis from 21 January 2009 to 19 December 2009, and then as a paid employee from 17 October 2010 to 20 November 2011.
34. However, the Tribunal is not prepared to accept that the applicant had completed over 900 hours of work experience at Maharaja Restaurant as claimed. The only corroborative evidence presented of having undertaken the 900 hours of work experience were letters and statutory declarations from Mr Binning and his wife. Neither of whom the Tribunal considers are reliable or credible for the reasons outlined above. The Tribunal is not prepared to accept the applicant's own assertions as to the total number of hours worked without more. It was not convinced by the applicant's responses to its questions during the hearing or the photographs presented that he completed the necessary 900 hours. For example, his evidence as to the appearance of the dining area of the restaurant could easily be gained through attending the restaurant as a customer, of which he did, having regard to the photographs provided of a joint birthday celebration with his cousin at the restaurant. The statutory declarations from other parties, including from those who also claimed to have worked at the restaurant do not, and could not, support his claim to have completed over 900 hours as a cook. This is because the periods of work undertaken by Mr Singh and Mr Devgan do not cover the entire period the applicant claims to have worked there, and neither claim that they worked exactly the same shifts and hours as the applicant. His cousin, who supported the applicant during his study, would also not be in a position tb categorically state the total number of hours the applicant worked as, while he said he would sometimes drive the applicant to work and occasionally ate at the restaurant, he himself did not work at the restaurant or personally witness the applicant undertaking the necessary work experience for the 900 hours.
35. The total hours of work experience is critical because 900 hours is the minimum number of hours that was required by TRA at the time the applicant applied for a skills assessment for this visa. There is no dispute that the skills assessment outcome would not have been favourable if the total hours claimed was less than 900 hours. The Tribunal acknowledges that TRA accepted claims of voluntary work experience and that, in the circumstances, corroborative evidence in the nature of payslips was not required. However, this does not explain why there is nothing to document or support his claim other than that provided by Mr Binning and his wife. The applicant clearly had kept a record for the 300 hours of claimed work experience required for his college studies in the form of a logbook. It seems to the Tribunal that having to undertake a further 600 hours would require some type of recordkeeping by the applicant or the restaurant, to ensure the minimum number of hours was worked. However, nothing of the sort has been provided.
The Tribunal accepted Mr Kaushik had worked 300 hours in light of it being a requirement to obtain his qualifications from the Holmes Institute. However, the Court rejects the assertion that the very first reason the Tribunal did not rely on Mr Kaushik’s oral evidence was because the details he provided at the Tribunal hearing regarding the restaurant décor and layout could have been provided by someone who had dined as a customer. In the context of the Tribunal Decision this was merely an example given by the Tribunal, and it went on to list other reservations and concerns it had with regard to evidence, or lack thereof, in support of the remaining 600 hours. The expression of the Tribunal’s reasons in a certain sequence does not indicate a failure to consider the evidence as a whole, or the apportionment of greater weight to one particular matter: S20/2002 at [14] per Gleeson CJ. Furthermore, the inference that the Tribunal failed to have regard to Mr Singh or Mr Amadeep’s corroborative material, or Mr Kaushik’s cousin’s, does not arise simply as a result of the sequence of expression: Chen v Minister for Immigration and Citizenship [2011] FCAFC 56 at [31]-[33] per Bennett, Nicholas and Yates JJ.
The Tribunal was required to be “affirmatively satisfied” Mr Kaushik met the statutory criterion: Migration Act, s.65; SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 25 at [15] per Mansfield J. The Tribunal likewise had to be satisfied there was no evidence before it to reasonably suspect Mr Kaushik had provided a “bogus document”: Migration Regulations, sch.4, cl.4020(1). The Tribunal is required to make a determination regarding the state of satisfaction required by sch.4, cl.4020(1) of the Migration Regulations and s.65 of the Migration Act, based upon findings of fact that are grounded upon probative material and logical grounds: SZMDS at [37]-[42] per Gummow ACJ and Kiefel J.
The Tribunal stated the evidence obtained from Mr Binning during the Minister’s interview was “less reliable than would be desired”: CB 546 at [26], while it also found that given the inconsistencies in the evidence of the Binnings in the Maharaja Matters they were not credible witnesses. Where the Tribunal made a finding that the Binnings were not witnesses of truth, there is no obligation to make a finding of what constituted the truth, rather simply referring to the inconsistencies in the evidence of both the Binnings was a sufficient basis for the finding on credibility: Chen at [44] per Bennett, Nicholas and Yates JJ. While the evidence provided in the statutory declarations may have been probative in the sense it corroborated Mr Kaushik’s claim to work 900 hours, indeed the Tribunal acknowledge this at CB 547-548 at [34] of the Tribunal Decision, having found their evidence as not credible the Tribunal was entitled to reject the evidence in the exercise of its fact-finding function. Even if the Tribunal placing no weight on the Binnings’ evidence is flawed (which the Court is of the view it is not), it cannot be said that it was unreasonable, unintelligible or irrational to take into account the inconsistencies in the Binnings’ evidence.
The Court notes that the Federal Court in Minister for Immigration & Border Protection v SZUXN [2016] FCA 516; (2016) 69 AAR 210 (“SZUXN”) at [56] per Wigney J stated:
An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal's decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal's decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451; 67 AAR 376 at [14]-[15].
While the Tribunal refrained from making a finding Mr Kaushik was not a witness of truth or not credible, it did expressly find that the evidence of the Binnings was not credible and would not be accepted. With reference to SZUXN, the finding of credit as to the Binnings while important, was not critical as the Tribunal could reasonably infer there were, or ought to be, other methods of verifying Mr Kaushik had undertaken the 900 hours. What must not be overlooked is that the Tribunal's finding Mr Kaushik had not attained the minimum 900 hours was based on the cumulative effect of the matters it had discussed in the Tribunal Decision at [33]-[35]: W148/00A v Minister for Immigration and Multicultural Affairs [2001] FCA 679; (2001) 185 ALR 703 at [69] per Tamberlin and R D Nicholson JJ.
It would not be unreasonable, in the sense of being arbitrary, capricious or lacking in common sense, for the Tribunal to be suspicious where there is an absence of any written record verifying the number of hours worked and therefore there being no capacity to verify Mr Kaushik’s assertions. There was also evidence before the Tribunal that the Binnings did not keep records, or their record keeping methods were inconsistent, suggesting that even the Binnings could not be completely satisfied a worker had completed the hours. While the Tribunal accepted that the volunteer work was a valid method for obtaining the hours required for a TRA, and therefore evidence by way of payslips and financial records could not be supplied, the Tribunal reasonably assumed there must be some written record of the work or the presence of a person working at a restaurant.
The Tribunal is not required to uncritically accept the evidence of Mr Kaushik, and in circumstances where Mr Kaushik gave no indication he wished to call the Binnings, Mr Singh or Mr Amadeep, the Tribunal was not obliged pursuant to s.361 of the Migration Act to consider calling them to provide evidence, however the Tribunal called Mr Singh during the hearing who verified that he had worked with Mr Kaushik. The Tribunal accepted the evidence of Mr Singh, Mr Amadeep and Mr Kaushik’s cousin, but noted the critical requirement was that Mr Kaushik complete 900 hours, and none of those who provided supporting evidence or documentation could verify that Mr Kaushik had in fact worked those hours. While Mr Kaushik had obtained subsequent employment and provided reference letters supporting his cooking ability, the Tribunal noted this evidence could not affirmatively prove Mr Kaushik had undertaken the 900 hours. At the hearing Mr Kaushik sought to explain to the Tribunal how it was he knew he had worked the 900 hours. The Minister noted there were inconsistencies in the statutory declaration and Mr Kaushik’s oral evidence at the Tribunal hearing, yet the Tribunal did not mention this inconsistency; therefore the Court infers such was not material in the consideration: SZSRS at [33] per Katzmann, Griffiths and Wigney JJ.
The Minister provided a detailed and extensive submission in which it was calculated Mr Kaushik’s oral assertion as to how he calculated the hours he had worked did not amount to a further 600 hours, therefore it was open to the Tribunal to arrive at that same conclusion. Mr Kaushik suggested the Minister was engaging in impermissible merits review and Mr Kaushik’s method and detailed explanation amounted to over 600 hours and the Tribunal made no mention of this in the Tribunal Decision. As is evident by the differing amounts the Minister and Mr Kaushik have arrived at based on the same information, the conclusions that can be reached are ones on which reasonable minds may differ: SZMDS at [128]-[130] per Crennan and Bell JJ.
The reasons the Tribunal gave for not accepting Mr Kaushik had undertaken the 900 hours required to obtain the TRA was intelligible and justified in the reasons it gave at CB 547 – 548 at [33]-[35]. In particular, the Tribunal emphasised that it was critical that Mr Kaushik had undertaken the 900 hours, and came to the following conclusion at CB 548-549 at [39]-[40]:
39. As referred to in the lawyer's submission, there is no doubt that some fraud was committed in relation to these matters and whether or not Mr Binning was personally involved, will never be known. In any case, the Tribunal is not persuaded that the applicant undertook 900 hours of work experience on the information before it.
40. The Tribunal reasonably suspects that the applicant's TRA skills assessment was obtained as a result of a false or misleading statement, whether or not made knowingly.
On the information before it, the Tribunal was justified to hold a reasonable suspicion the TRA was a “bogus document”.
In the circumstances, having read the Tribunal Decision as a whole the Court finds there was no unreasonableness in the Li sense in the findings the Tribunal ultimately made.
The treatment of the Public Interest Criteria waiver
Mr Kaushik contended that the Tribunal had erred in finding he did not have “compelling circumstances” to warrant him being granted the Skilled Visa. At hearing Mr Kaushik’s lawyer, admitting his being somewhat facetious, submitted the Tribunal failed to take into account the quality of the relationship and “that if people are in love it is compelling circumstances”, and while the Tribunal effectively said “Yes, it’s acceptable to drive this couple apart”, they never said “and here’s why”, rather they gave no reasonable or rational basis for that conclusion when one looks at the quality of the relationship: Transcript p.42.
The evidence of “compelling circumstances” Mr Kaushik advanced to the Tribunal were largely by way of the evidence given by Mrs Kaushik at the Tribunal hearing. Mr Kaushik placed significant weight on Mrs Kaushik giving qualitative and detailed evidence, including her wanting to “build a house… start a family” and pleading “it's really hard for a girl or a person to love, to you know live without a person who loves him”. It was also in issue that the Tribunal had no “sociological evidence” to come to a finding: at CB 549 at [47] of the Tribunal Decision:
“It is not uncommon for a husband and wife to spend time apart during their marriage”.
With respect to Mr Kaushik, the need for sociological evidence to support the comment made by the Tribunal is irrelevant, or at least not obvious. The Tribunal did not determine Mr Kaushik failed to satisfy a compelling reason on the basis it was not uncommon for a husband and wife to spend time apart. When considering the remark in context it is clear the Tribunal was merely making a passing remark: at CB 549 at [47] of the Tribunal Decision the Tribunal said:
47. In the circumstances, the Tribunal is not satisfied that the requirements should be waived. It does not consider that the consequence of PIC 4020(2) applying to the applicant amounts to compassionate or compelling circumstances that affect his wife, an Australian permanent resident. The applicant's wife has stated that she is in her late twenties and wants to plan for their future, such as extending their family and buying a house which she cannot do without her husband. She referred to her brother and his family living in Canberra, and other friends who live in Australia. She wants her husband to be with her and, as a follower of Indian culture, she would have to stay where her husband stays. It appears to the Tribunal that the applicant's wife has a choice to remain in Australia and continue her work with her current employer until her husband is able to return, or she can leave with him. It notes that the applicant's wife applied for the RSMS visa and did not include the applicant as a member of her family unit, because he was found not to satisfy PIC 4020 in relation to the Subclass 886 visa application. Any decision made by his wife as to whether to stay or leave is temporary in nature. As the 3 year exclusion period ends in around 12 months, the Tribunal does not consider that any plans to have children and buy a house would be so affected as to amount to compassionate or compelling circumstances affecting his wife that justify the granting of the Subclass 886 visa to the applicant. It is not uncommon for a husband and wife to have to spend time apart during their marriage, and there is nothing compelling or compassionate in terms of the circumstances presented in this case.
The remark was not unreasonable or illogical: at hearing Mr Kaushik referred to fly in fly out workers and the Court drew attention to a greater propensity for Australians to travel abroad for work or engage in long distance relationships. The Tribunal had reasoned and evaluated the circumstances of Mr Kaushik, and noted that the separation of the couple would be temporary. While it may be considered unnecessary, the Tribunal comment was immaterial to the findings it had already made.
A further issue regarding the Tribunal’s understanding of “compelling reasons” was also raised. In Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173; (2015) 90 ALJR 197; (2015) 327 ALR 8 at [31] per French CJ, Bell, Keane and Gordon JJ the High Court said:
the state of mind required of the Minister (or a delegate) must be reached by reference to ‘reasons’ that are ‘compelling’; that is, those reasons must ‘force or drive the decision-maker’ ‘irresistibly’ to be satisfied that ‘special consideration’ should be given to granting the particular application…
while at [64] per Gageler J it was said:
A statutory requirement that a decision-maker be satisfied that there are ‘compelling reasons’ for taking particular action is a requirement that the decision-maker be persuaded that there are reasons in favour of taking that action which, when weighed within the context of the particular statutory scheme, are irresistible.
Jurisdictional error can be shown if it is proven the Tribunal had a legally erroneous view of what was sufficient to amount to a “compelling circumstances”. However, there is no settled definition of “compelling circumstances”, and as emerges from the case law on the topic what is considered “compelling circumstances” are matters about which reasonable minds can differ. While the Tribunal did not refer to the principles of compelling circumstances guiding the findings it was to make, the Court can assume the Tribunal has a specialised understanding and knowledge of these legal principles to be applied.
When considering the findings the Tribunal came to, the Court does not detect the view taken was erroneous. In Tabag v Minister for Immigration & Ethnic Affairs (1982) 70 FLR 64; (1982) 45 ALR 705 (“Tabag”) the Full Court of the Federal Court considered a circumstance where the removal of an individual would result in “separating him from his Australian wife and children or requiring them to accompany him to a country that… would be destructive of their prospects in life as well as his”. In dismissing the appeal, and finding the Tribunal did not err in coming to the conclusion the applicant was to be removed, it was said in Tabag at 86 per Jenkinson J that:
Careful balancing by the Tribunal of considerations and interests in search of the right decision upon the exercise of the power to deport the appellant seems to me apparent from the reasons for the decision, and suggests to me the very contraries of cruelty, inhumanity and the uncivilised.
It is the Tribunal, in its fact finding function, which must balance and weigh the individual considerations. The Tribunal at no time expressed doubt as to the genuine nature of Mr Kaushik’s marriage and the love he and Mrs Kaushik share. However, marriage to an Australian citizen, or permanent resident as Mrs Kaushik was, without more, will rarely constitute a compelling and compassionate circumstance for the waiver of a visa criterion: Nguyen v Minister for Immigration [2001] FCA 360 at [12] per Marshall J.
The Tribunal clearly appreciated the considerations it was required to balance when determining if Mr Kaushik met the Public Interest Criteria and coming to the finding that Mr Kaushik did not meet that criteria. No jurisdictional error is established in the Tribunal Decision in relation to this issue.
Improper exercise of power
It is unclear what Mr Kaushik is attempting to contend in relation to the asserted improper exercise of power. At its highest the Court considers it implies the Tribunal committed an error of law when interpreting sch.4, cl.4020(1) of the Migration Act. Without further explanation as what Mr Kaushik is suggesting, the Court considers the Tribunal has made no error of law when construing the Public Interest Criteria, and to the extent Mr Kaushik cavils with factual findings regarding the Public Interest Criteria, that is simply an invitation to partake in impermissible merits review which this Court cannot entertain: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The Court, having found there was no misinterpretation of the Public Interest Criteria, nor that the Tribunal committed any error in considering waiving those criteria, also finds there was no improper exercise of power by the Tribunal. On the face of the material before the Court no improper exercise of power is evident, and the Tribunal has demonstrated a proper, genuine and intellectual consideration of the circumstances and evidence before it and has come to reasonable, justified and intelligible conclusions.
Conclusion and orders
The Court has concluded that the Tribunal Decision is unaffected by jurisdictional error. It follows that the Judicial Review Application must be dismissed. There will be an order accordingly.
There will also be an order that the name of the Minister be changed to “Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs”
The Court will hear the parties as to costs.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 9 October 2019
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