Khan v Minister for Immigration
[2019] FCCA 2387
•30 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KHAN v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2387 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant Skilled – Independent (subclass 189) visa – whether s.359A of the Migration Act 1958 (Cth) (Act) applied to certain information that was before the Tribunal – whether Tribunal disclosed to the applicant certificate purportedly issued under s.376 of the Act or the documents covered by such certificate – whether assuming the Tribunal failed to disclose or properly disclose the certificate or the documents covered by the certificate such failure was material to the Tribunal’s decision – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 57, 359A, 376, 424A, 476 |
| Cases cited: Khan v Minister for Immigration and Citizenship [2011] FCAFC 21 |
| Applicant: | FAISAL KHAN |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 195 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 24 August 2018 |
| Date of Last Submission: | 24 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 30 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr N Poynder |
| Solicitors for the Applicant: | Brightstone Legal |
| Counsel for the First Respondent: | Mr T Riley |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 195 of 2017
| FAISAL KHAN |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for remedies under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled – Independent (subclass 189) visa (Skilled visa).
The applicant claims that when reviewing the delegate’s decision the Tribunal failed to comply with s.359A of the Act. The applicant also claims the Tribunal denied the applicant procedural fairness because, although the Tribunal disclosed to the applicant a certificate that was issued purportedly under s.376 of the Act, it failed to disclose to the applicant the existence of a particular document that was covered by the certificate.
To be in a position to consider the applicant’s claims, it will be necessary to identify the criterion for the grant of the Skilled visa the Tribunal was not satisfied the applicant met, the course of the application for the grant of the Skilled visa, and the reasons on which the Tribunal relied for not being satisfied the applicant met the criterion in question.
Criterion in question
To have been entitled to a Skilled visa, the applicant was required to satisfy the criterion prescribed by cl.189.215(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). That sub clause required an applicant satisfy, among other things, public interest criterion (PIC) 4020. PIC4020 relevantly provided 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 12 months before the application was made.
. . . .
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) . . . . if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen;
justify the granting of the visa.
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
The expression “bogus document” is defined in s.5(1) of the Act as follows:
In this Act, unless the contrary intention appears:
. . . .
bogus document in n relation to a person, means a document that the Minister:
(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.
Background
The applicant is a citizen of Pakistan. He entered Australia on 7 February 2014 holding a subclass 573 Higher Education Sector visa that was valid until 9 December 2015.
On 5 March 2015 the applicant lodged an application for a subclass 457 Temporary Work (Skilled) skilled visa (457 visa).[1] Under cl.457.223(4) of Schedule 2 to the Regulations the applicant was required to show he had the skills, qualifications, and employment background to perform the tasks of the nominated occupation.
[1] Affidavit of G Doyle (Doyle affidavit); annexure “GD-1”, folio 133B
On 9 May 2015 the applicant sent a written request that his application for a 457 visa be withdrawn. Also on 9 May 2015 a migration agent in Perth, Ms Buegge-Borschoff, sent an email to “VIC Sponsor Monitoring” in which she stated that the applicant wished to withdraw his application for a 457 visa. The agent said that the nomination, and offer to work by his prospective employer, have been withdrawn and are also to be cancelled, and that “[t]here is no work available for [the applicant] with this employer”.[2] The applicant’s request to withdraw his application for a 457 visa, however, was not sent to the correct team within the Department of Home Affairs (Department) and, on 29 July 2015, the applicant was granted a 457 visa.[3]
[2] CB191-192
[3] Doyle affidavit, annexure “GD-1”, folio 133B
In the meantime, on 13 May 2015 Ms Buegge-Borschoff sent the following email to the Department:[4]
I have a highly regarded Australian company as a client who were in the process of sponsoring a skilled employee, Faisal Khan.
He is on a student visa – and working supposedly part time, although it appears he has worked for more than the required 20 hours a week.
During the collection of data and application proceedings, concerns were raised by our processing manager over the strange and paranoid behaviour of the applicant. Her comments are quoted here – nothing major but unusual in normal applicants.
“He used “one drive” to send the documents to us and emailed at one point to ask if we had all the necessary documents so that he could close down his one drive share [sic] He asked us to use a different email address, and was hesitant to give it, and said UNDER NO CIRCUMSTANCES were we to use his email for his application. Generally, throughout my dealings with him he didn’t seem genuine, he acted vague on areas where asked for further supporting documents (particularly his attendance on the Student visa), and when it seemed we were satisfied with the paperwork he provided, it was as if he was extremely relieved and was over-thankful in his emails, and ingratiating (if that’s the right word!!)”
In addition to our doubts about his bonafides, in the last 10 days his bizarre bullying and aggressive behaviour at the employment site (Westpac building) attracted so much attention and fear, that the Westpac staff complained about him to my client, and he was about to be terminated when he sent in a sick note, then emailed the employer and said he wanted to go back to being just a student and did not want a 457 visa.
My feeling is that he suddenly realised the amount of scrutiny attracted by applying for a work visa, and retreated to an area with less scrutiny.
It may be nothing, but he is behaving oddly and I would rather you knew about our doubts. I attach a passport copy for your records.
[4] Doyle affidavit, annexure “GD-1”, folio 113B
On 20 June 2015 the applicant lodged an online application for a Skilled visa.[5] The applicant nominated his occupation as electronics engineer. The applicant set out his employment history. The applicant claimed that from 2 July 2012 to 10 January 2014 the applicant worked in Pakistan as an application programmer with “Ravian Solutions”.[6] The applicant supported his claim with what purports to be a letter from “Ravian Solutions” dated 27 August 2013.[7] The letter, which is addressed “To Whom It May Concern”, is as follows:
[5] CB1-18
[6] CB12
[7] CB33
This is to certify that Faisal Khan has worked at our organization Ravian Solutions from July 2012 till this date as Application Programmer. He has worked on programming languages Microsoft Visual C# .NET, ASP.Net, SQL Server, Java and HTML. He is capable of designing and developing software applications. His specialty is the development of software applications for machines and instruments.
We at Ravian Solutions, wish Faisal Khan good luck and success in all his future endeavours.
Sincerely
Azeemuddin Riaz
Senior Team LeaderRavian Solutions
By email sent on 13 August 2015 an officer of the Department requested the applicant provide further information.[8] This included a request for evidence of employment such as employment references, contracts, pay slips, tax returns, group certificates, and superannuation.[9] The letter specified the requirements the employment references had to meet. The applicant responded by email on the same day.[10] As to the requested information concerning his previous employment, the applicant said that his salary slip had been submitted through the Departmental portal, and that his “job contract is no longer valid after May 2015”. On 23 August 2015 the applicant provided to the Department further information, including payslips from two of his previous employers.
[8] CB60
[9] CB66-67
[10] CB69
By email sent on 1 September 2015 the Department informed the applicant it was unable to open the salary slip the applicant had provided, and the applicant was requested to provide “further evidence of your employment as the evidence you have supplied is not sufficient”. The email also identified the documents that “are still outstanding”. These included “[e]vidence of your overseas work experience – detailed employment reference and payslip”.[11]
[11] CB98
On 2 September 2015 the applicant sent the Department an email in which he provided further information, including “overseas employment letters attached”.[12] The applicant said he “did not keep salary slips of my previous employments”.[13] The applicant noted that the “[f]ollowing people can be contacted by department for verification purposes”. One of these was Mr Azeemudin Riaz of Ravian Solutions, and the applicant provided an office and telephone number at which Mr Azeemudin Riaz could be contacted. It is not entirely clear on the evidence before what are the “overseas employment letters attached”. Two letters are in evidence. One is an offer of employment dated 17 May 2011 from a business known as “Modelcraft”.[14] The other is a letter dated 20 June 2012 from “Ravian Solutions” offering the applicant employment as an “Application Programmer”.[15] The author of the letter is stated to be “Salman Ahmed COO” (sic). As will become apparent shortly, the applicant provided the second of these letters to the Department on 17 September 2015.
[12] CB106
[13] CB133
[14] CB155
[15] CB149-151
On 15 September 2015 the Department sent an email to the applicant noting that the applicant has not provided payslips from his previous employment, but also noting that as an alternative the applicant could provide bank statements showing his salary.[16]
[16] CB168-169
On 17 September 2015 the applicant sent an email to the Department in which he stated. Among other things:[17]
[17] CB137
Employment Ravian:
* Letter of employment attached* Company salary bank account closed. Regretfully couldn’t get help. Please contact Mr Azeemuddin for verification. . . .
* Mr. Azeemudin Riaz
Official email: . . . .
Office: . . . .
Mobile: . . . .
On 19 October 2015 the Department sent to the applicant a letter of the same date stating that the Department had conducted checks to confirm the information the applicant provided as a result of which it received unfavourable information.[18] That information related to the applicant’s claim that Ravian Solutions had employed him. The letter recorded the following:
a)A Departmental Officer called the Pakistan Telecommunications Company Limited (PTCL) to verify the contact number and business name of Ravian Solutions, but PTCL confirmed that no such number is recorded for Ravian Solutions, although a number was available for a company called Ravian Maritime.
b)The Departmental officer searched Google for the name “Ravian Solutions”, but did not find any such name.
c)The Departmental officer telephoned the contact number provided in the letter the applicant provided that was purportedly from Ravian Solutions, and spoke to a person who said he was Mr Azeemudin Riaz. The officer asked Mr Azeemudin Riaz to confirm the applicant’s employment details and he responded by asking that the officer call him after a half an hour. The Departmental officer did so, and Mr Azeemudin Riaz confirmed the applicant’s name, designation, and the details provided on the purported letter from Ravian Solutions. Mr Azeemudin Riaz said that Ravian Solutions and Ravian Maritime had merged about a year ago. He was asked about the applicant’s salary, but Mr Azeemudin Riaz was unable to provide that information; he asked that he be called the next day.
d)The Departmental officer called the telephone number provided in the purported letter from Ravian Solutions. The number was answered, and it was confirmed to the officer that Mr Azeemudin Riaz worked there. The officer requested that the call be transferred to the human resources department or to the general manager, and the call was transferred to the general manager. The officer spoke to the general manager. The general manager said he had never heard of the applicant’s name, but would search for the applicant’s name in the system. The general manager confirmed there was no name in the system matching the applicant’s name. The officer later emailed the purported letters from Ravian Solutions, and the general manager confirmed the letters were fake. The general manager also said there was no merger between businesses called Ravian Solutions and Ravian Maritime.
[18] CB175-179
The applicant was invited to comment on the matters set out in the Department’s letter. The applicant did so by email sent on 3 November 2015 which attached a letter dated 28 October 2015.[19] The applicant claimed the officer of the Department at the Islamabad Embassy of Australia “is crooked and that the methodology adapted is unnatural”. The applicant claimed he has “come out in flying colors [sic] when other inquired and verified my same information overseas”; that a search on Google did not reveal the name of Ravian Solutions is not conclusive because Pakistan “is still a couple of decades behind in contrast with Australia in terms of technology consumption in departments and businesses”; Mr Azeemudin Riaz provided true information; the applicant spoke with the general manager who denied he had any conversation with any Departmental officer; the applicant spoke to the telephone operator who transferred the call from the Departmental officer, and the applicant was told that the call was forwarded “to CEO of Ravian Maritime not General Manager and who recorded the statement”; even if “we take these hypothetical General manager remarks in consideration, the executives and officials of the business are protected behind privacy policy of the company and that they are not bound or obliged to disclose confidential information such [as] employee records or their salaries or business deals or ventures except for a good-will”; and the applicant’s legal advisor is pursuing a defamation law suit “against the CEO for character assassination of myself”, noting that there being no record of Ravian Solutions in the Securities Exchange Commission of Pakistan data bases “points to the fact that the company was running illegally”. The applicant invited the Department to again telephone Ravian Maritime “to investigate who did speak that day with embassy official”. Finally, the applicant claimed that his living in Australia “is in interest of an Australian Business Entity Owner who is an Australian Citizen because I have added business value to his Business with the diversity of Enterprise ICT technologies which is my skillset”.
[19] CB183-187
On 9 December 2015 a delegate of the Minister refused to grant the applicant a Skilled visa because the applicant had provided to the Department two bogus documents, these being the letter dated 27 August 2013 purportedly from Ravian Solutions and the letter purportedly from Ravian Solutions the applicant provided in his email sent on 17 September 2015.[20]
[20] CB204
Before the Tribunal and the Tribunal’s reasons
On 17 December 2015 the applicant applied to the Tribunal for a review of the delegate’s decision. On 20 May 2016 a delegate of the Minister issued a certificate purportedly pursuant to s.376 of the Act (Certificate). The Certificate identified a number of documents by reference to folio numbers, and certified that their disclosure would be contrary to the public interest.[21]
[21] CB221
On 13 November 2016 the applicant’s migration agent provided written submissions to the Tribunal.[22] The agent submitted there would have been no point in the applicant fabricating his employment with Ravian Solutions because he had already sufficient employment history without having to rely on his employment with Ravian Solutions; that the applicant has not been employed by Ravian Solutions since 2013, and the applicant, therefore, would have no knowledge about the activities of Ravian Solutions; that the telephone number the applicant provided for Ravian Solutions is the number currently used by Ravian Maritime, and Mr Azeemudin Riaz, being the person whom the applicant nominated as a referee, works with Ravian Maritime; and Ravian Solutions might not have been a registered company, and that the general manager may have been protecting his own interests.
[22] CB241
At the hearing before it the Tribunal informed the applicant that a Certificate had been issued. The Tribunal set out in its reasons what it said about that:[23]
At the outset the Tribunal explained to the applicant that a s.376 Certificate has been placed on some of the documents in the Department’s file. The Tribunal noted that some of the documents related to correspondence between the various sections of the Department regarding his 457 visa and visa status at the time of the processing of the visa application, none of which the Tribunal considered relevant to the issue it must determine as set out in PIC 4020. Other documents related to the request for the overseas post to conduct employment verification checks of the applicant’s employment claims. The Tribunal explained to the applicant that the natural justice letter sent to him by the delegate and the decision record had set out in detail the relevant information obtained during the verification checks regarding his claimed employment at Ravian Solutions and that in those circumstances it was satisfied that he had knowledge of the information and that it would give him an opportunity to respond to that information in the course of the hearing.
[23] CB274, [20]
The Tribunal then discussed with the applicant the information the Department received in response to its inquiries of Ravian Solutions.
The Tribunal recorded the following:
a)The applicant gave evidence Ravian Solutions offered him a job in June 2012; that he commenced employment in July 2012; that the business was only known to him as Ravian Solutions; the business was involved in software solutions and automation projects; the applicant was paid 32,000 a month, but he did not pay any tax, and he did not lodge any tax return.[24]
b)The Tribunal put to the applicant it might rely on the information obtained by the overseas post regarding his employment with Ravian Solutions. The applicant asked how it could be said that Ravian Solutions did not exist when the number the applicant had provided was answered. The Tribunal found that the applicant’s response did not address the substantive content of the adverse information, namely, that the applicant claimed he had been employed by Ravian Solutions.[25]
c)The applicant said he did not understand why the name of the general manager the Departmental officer contacted had been kept anonymous. The applicant claimed he called Ravian Maritime, and spoke to the general manager who told him that that “the CEO had denied the merger and had denied any knowledge of him and denied that there was any records of his name”.[26] The Tribunal asked the applicant why the CEO would deny the applicant’s employment with Ravian Solutions. The applicant said that Ravian Solutions “was running under the radar and was not a registered business”.[27] The Tribunal informed the applicant that it found it difficult to accept that a business that is not registered and, instead, is operating under the radar would provide offers of employment on a letterhead containing the types of terms and conditions set out in the letter of offer the applicant had provided. The Tribunal found that the applicant’s evidence that Ravian Solutions is an unregistered company operating under the radar “has been contrived by the applicant to overcome information which suggests that no business by the name Ravian Solutions, for which the applicant claims to have worked, had actually existed”.[28]
d)The Tribunal asked the applicant questions in relation to his “constant reference to the CEO or General manager’s name having been kept anonymous” when in his earlier evidence the applicant claimed he had spoken to the general manager whose name was Mr Ibrahim, and that the applicant claims he now knowns that the person who spoke to the case officer was the CEO of Ravian Maritime. The applicant said the officer’s evidence that he had spoken with the general manager was incorrect. The Tribunal found that even if, as the applicant claimed, the Departmental officer had not spoken to the general manager but had instead spoken to the CEO of the Raven Maritime, the Departmental officer would still have spoken to a senior person within Ravian Maritime who would have been in a position to provide independent and reliable information that could be verified by company records.[29]
e)The Tribunal raised with the applicant its concerns that the footer of the letters the applicant provided stated “Ravian Group: Ravian Solutions|Ravian Maritime”. The Tribunal noted that this appeared to undermine the applicant’s that Ravian Solutions was not registered and operated under the radar, and it also appeared to undermine the claim made by Mr Azeemuddin Riaz that the companies had merged 2014.[30]
f)The Tribunal put to the applicant that he had not provided any independent supporting documents to substantiate his claimed employment with Ravian Solutions. The Tribunal noted the applicant said he had been paid by bank deposit, but he had not provided any bank records.[31]
[24] CB274, [21]
[25] CB274-275, [24]
[26] CB275, [27]
[27] CB275, [28]
[28] CB275-276, [29]
[29] CB276, [31]
[30] CB277, [34]
[31] CB277, [36]
The Tribunal concluded this part of its reasons as follows:[32]
The problematic nature of the evidence regarding the existence of a business by the name of Ravian Solutions, the concerns regarding the information contained in the letterhead, the inconsistencies in the evidence regarding a claimed merger and the lack of independent verifiable evidence to substantiate the employment casts considerable doubt over the applicant’s claimed employment at Ravian Solutions and the genuineness of the related employment documents.
[32] CB277, [37]
The Tribunal also heard submissions from the applicant’s representative, and the Tribunal set out these submissions in its reasons for decision, and its responses to each of those submissions. The Tribunal concluded this part of its reasons as follows:
50.For all of the above reasons, the Tribunal prefers the evidence obtained during the employment verification checks from a Senior Manager at Ravian Maritime indicating that the two employment letters dated 27 August 2013 and 20 June 2012 from Ravian Solutions are fake and that the icon on those letters had been copied from Ravian Maritime.
51.On the evidence before it, the Tribunal is satisfied that there is evidence that the applicant has given, or caused to be given, to the Minister, a bogus document, as defined in s.5(1)(b) of the Act because it reasonably suspects that the employment letters dated 27 August 2013 and 20 June 2012 are documents that are counterfeit or have been altered by a person who does not have authority to do so. The Tribunal is also satisfied on the evidence that the bogus documents were given in relation to the visa application.
52.Given the above, the Tribunal is not satisfied that there is no evidence that the applicant has given, or caused to be given, to the Minister . . . a ‘bogus document’ in relation to the application for the visa. Therefore, the applicant does not meet cl.4020(1).
The Tribunal the considered whether PIC 4020(1) should be waived. The Tribunal referred to two letters from the director of a company about the applicant’s value to that company. The Tribunal was not satisfied PIC 4020(1) should be waived. Although it accepted the applicant is a highly skilled IT professional, and that he can add value to an Australian business, these were not matters that affect the interests of Australia or are matters that constitute compassionate or compelling circumstances that affect the interests of an Australian citizen, Australian permanent resident, or an eligible New Zealand citizen.[33]
[33] CB281, [60]
Ground 1
The applicant relies on the three grounds stated in the further amended application. Counsel for the applicant made the same submissions in relation to grounds 1 and 2. It would be more convenient, however, if I were to consider separately the first two grounds. Ground 1 is as follows:
The second respondent failed to comply with its obligation under s 359A of the Act to give to the applicant clear particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review.
Particulars
The second respondent failed to provide the applicant with particulars of information set out in documents referred to in a certificate issued by the first respondent under s 376 of the Act on 20 May 2016 (the s 376 certificate), such documents being at folios 113A-113B, 123A-124B, 131A-137B, 138A-139B and 156B-158A 169 of the first respondent’s File No BCC2015/1765950 (the s 376 documents).
The ground, as stated in the applicant’s written submissions, is limited to one of the documents, and that is folio 113A-113B, being the email Ms Buegge-Borschoff sent to the Department on 13 May 2015 which is reproduced in paragraph 9 of these reasons. The applicant submits the email contained information to which s.359A of the Act applied. The information (Relevant Information) is said to consist of serious allegations from a credible source to the effect that the applicant had engaged in unlawful activity in relation to his application for a 457 visa; those allegations were relevant to the very issue that was before the Tribunal, namely, the applicant’s credibility; and the allegations went to the heart of the applicant’s credibility. The applicant relies on documents that reveal that after it received Ms Buegge-Borschoff’s email, the Department identified the applicant in the Department’s database as a “client of interest”; and this, in turn, prompted the employment checks in relation to the applicant’s application for a Skilled visa.[34] The applicant particularly relies on the facts and the judgments of the Full Federal Court in Khan v Minister for Immigration and Citizenship.[35] In that case each member of the Full Federal Court inferred from the nature of information that was before the Migration Review Tribunal that asserted fraud by the applicant that the Migration Review Tribunal considered that information would be the reason or a part of the reason for affirming the decision under review.
[34] Applicant’s Outline Submissions, [63]
[35] [2011] FCAFC 21
The Minister submits that s.359A of the Act has no application to the Relevant Information. First, the Tribunal made it clear to the applicant during the hearing that it did not regard any of the information relating to the processing of the applicant’s application for a 457 visa to be relevant; and the Tribunal did not refer to the Relevant Information in its reasons for decision as the reason or part of the reason for affirming the delegate’s decision.[36] Second, it is “well established” that information that goes to an applicant’s credit is not information that is capable “in its terms” to constitute a rejection, denial, or undermining of an applicant’s claims.[37]
[36] First Respondent’s Written Submissions, [6], [7]. The Minister referred to Minister for Immigration and Citizenship v SZLFX [2009] HCA 31, at [26], as support for the proposition that regard may be had to the Tribunal’s reasons for decision when determining whether any particular item of information was the reason or part of the reason for affirming the decision under review.
[37] First Respondent’s Written Submissions, [9]
The fate of ground 1 turns on the application of the principles that have developed in construing the word “information” as it appears in s.359A(1) of the Act and in the equivalent provision contained in s.424A of the Act. It has been held that “information”, as used in those sub-sections, “refers to knowledge of relevant facts or circumstances communicated to or received by the Tribunal . . . irrespective of whether it is reliable or has a sound factual basis”;[38] but it does “not encompass the tribunal’s subjective appraisals, thought processes or determinations”. Nor “does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps”.[39] The meaning of “information” is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[40]
[38] VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (Finn and Stone JJ), at [24]
[39] VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (Finn and Stone JJ), at [24] quoted with approval by the High Court in SZBYR v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at 616 ([18]).
[40] SZBYR v Minister for Immigration and Citizenship and Another (2007) 235 ALR 609 at 616 ([18])
A formulation that is often applied to determine whether any given information is “information” to which s.424A(1) (and, therefore, s.359A) of the Act applies, is that provided by the High Court in SZBYR v Minister for Immigration and Citizenship.[41] In that case the High Court held that portions of a statutory declaration did not constitute “information” for the purposes of s.424A(1) of the Act because they “did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations”.[42] And in Minister for Immigration and Citizenship v SZLFX, the High Court said that for s.424A(1)(a) of the Act to be engaged “the material in question should in its terms contain a “rejection, denial or undermining” of the review applicant’s claim to be a refugee”.[43]
[41] (2007) 235 ALR 609
[42] (2007) 235 ALR 609 at page 615 ([17])
[43] (2009) 238 CLR 507 at page 513 ([22])
What the High Court said in SZBYR and SZLFX must now be considered in the light of the plurality’s judgment in Plaintiff M174/2016 v Minister for Immigration and Border Protection. That case concerned s.57(1) of the Act which includes the expression “information . . .that would be the reason, or part of the reason, for . . . refusing to grant a visa”. The plurality accepted, or at least assumed, that the meaning that had been given in SZBYR and SZLFX to the expression “information” was correct; and the plurality expanded on that meaning in the emphasised portion of the following passage (reference omitted):[44]
Section 57 is also located within subdiv AB. The section deals with “relevant information”. Section 57(1) defines that term, subject to an immaterial exclusion, to mean information that the Minister considers meets three conditions. The first condition is relevantly that the information “would be the reason, or part of the reason … for refusing to grant a visa”. Whether or not that condition is met, it has been held in this Court in respect of a materially identical provision, “is to be determined in advance – and independently – of the [Minister's] particular reasoning on the facts of the case”. For the condition to be met, it has again been held in this Court in respect of a materially identical provision, the information in question “should in its terms contain a ‘rejection, denial or undermining’ of the review applicant's claim”. That is to say, the information must in its terms be of such significance as to lead the Minister to consider in advance of reasoning on the facts of the case that the information of itself “would”, as distinct from “might”, be the reason or part of the reason for refusing to grant the visa. The Court is not asked to reconsider that approach to the operation of the first condition in the present case.
[44] Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 174, at [9]
The question, then, is whether the Relevant Information was of such significance as to have led the Tribunal to consider in advance of reasoning on the facts of the case that the Relevant Information of itself would, as distinct from might, be the reason or part of the reason for affirming the delegate’s decision. That question must be answered in the negative.
a)First, as the Minister submitted, the Tribunal stated it did not consider relevant the information contained in the documents covered by the Certificate. That included the Relevant Information.
b)Second, it is apparent from the questions the Tribunal asked the applicant during the hearing (as recorded in the Tribunal’s reasons) that the Tribunal had no regard to the Relevant Information. It considered matters that were relevant to the authenticity of the purported letters from Ravian Solutions, the evidence the applicant gave, and the submissions the applicant’s agent gave in relation to the concerns the Tribunal expressed about the authenticity of the purported letters.
c)Third, the Relevant Information of itself was incapable of rationally grounding any finding of dishonesty by the applicant. It went no further than identifying behaviour which suggested to the author of the Relevant Information that the applicant feared scrutiny.
d)Fourth, even if, as the applicant submits, the Relevant Information prompted the Department to make inquiries that does not mean the Tribunal considered the Relevant Information would be the reason or part of the reasons for affirming the delegate’s decision. That the applicant submits the Relevant Information promoted investigation of the applicant is an implicit acknowledgment that the Relevant Information was incapable by itself of affording the reason or part of the reason for affirming the delegate’s decision. In any event, I do not accept that that the Relevant Information prompted the enquiries the Department made about the authenticity of the purported letters from Ravian Solutions. The Department requested the applicant to provide evidence of his previous employment which included evidence of payment. The applicant was unable to provide that evidence.
For these reasons, ground 1 fails.
Ground 2
Ground 2 is as follows:
The second respondent failed to comply with its obligation under s 360 of the Act to allow the applicant to give evidence and present arguments relating to the issues arising in relation to the decision under review.
Particulars
(a)The applicant repeats the particulars referred to in paragraph 1 above.
(b)The second respondent failed to provide the applicant with a copy of the s 376 certificate.
(c)The s 376 certificate was invalid, since the information in the documents referred to the certificate was not of a nature that gave rise to any valid basis for a claim under s 376 of the Act.
The applicant did not in his written submissions separately address this ground. To the extent the ground relies on the particulars to ground 1 then, this part of ground 2 fails for the same reasons I have given for concluding that ground 1 fails.
It is true the Tribunal did not give the applicant a copy of the Certificate. That, however, is not because the applicant was unaware of the Certificate, or because, being aware, he requested he be provided with a copy but the Tribunal refused to provide it. The Tribunal informed the applicant that the Certificate existed; and the Tribunal explained the effect of the Certificate.[45] The applicant does not claim the Tribunal failed to give an accurate description of the Certificate or its effect. The applicant was given sufficient information to enable him to assess whether he should ask that he be provided with the Certificate. It is reasonably open to me to find, and I do find, that the applicant elected that he did not wish to be provided with the Certificate.
[45] See page 4 of the transcript, which is annexed to the affidavit of Hayley Paterson made on 21 June 2017
I then turn to paragraph (c) of the particulars. It is unnecessary to determine whether the Certificate is invalid. Assuming, however, the certificate is invalid, that by itself would not have the consequence of the Tribunal having made a jurisdictional error.
Finally, if, contrary to what I have found, the Tribunal failed to accord the applicant procedural fairness, I am not satisfied that the Tribunal’s complying with its obligation to disclose to the applicant the Certificate or any of the documents covered by the Certificate could realistically have resulted in a different decision; and I am satisfied that even if the Tribunal disclosed to the applicant the Certificate, or all of the documents covered by the Certificate, that could not have made any difference to the outcome of the review.[46]
[46] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
Ground 2, therefore, also fails.
Ground 3
Ground 3 is as follows:
The second respondent failed to follow the correct procedure in relation to a certificate made by the first respondent under s 376 of the Act, and thereby denied the applicant procedural fairness.
Particulars
The second respondent failed to disclose to the applicant the nature and content of folios 113A-113B affected by the 376 certificate, thereby denying the applicant an opportunity to make submissions on the validity of the certificate in relation to those folios or to seek a favourable exercise of the discretion under s 376(3)(b) of the Act to give those folios to the applicant
This ground overlaps with grounds 1 and 2. I have already found that the Tribunal did not consider the Relevant Information to be the reason or part of the reason for affirming the delegate’s decision. I have also found that the Tribunal disclosed the existence of the Certificate to the applicant and the nature of the documents covered by the Certificate. I further find that, as the Tribunal informed the applicant during the hearing, it did not consider any of the information contained in the documents covered by the Certificate to be relevant to the review.
In these circumstances it follows that the Tribunal made no jurisdictional error. If, contrary to this finding, the Tribunal did make a jurisdictional error, I am not satisfied that the Tribunal’s complying with its obligation to disclose to the applicant the Certificate or any of the documents covered by Certificate could realistically have resulted in a different decision; and I am satisfied that even if the Tribunal disclosed to the applicant the Certificate, or all of the documents covered by the Certificate, that could not have made any difference to the outcome of the review.[47]
[47] Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection [2019] HCA 3
Ground 3, therefore, also fails.
Conclusion and disposition
The applicant has not succeeded on any of the grounds on which he relies. I propose, therefore, to order that the application be dismissed. I will consider the question of costs when I pronounce my order dismissing the application.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 30 August 2019
2
4
4