Mohajan v Minister for Immigration

[2018] FCCA 1811

FEDERAL CIRCUIT COURT OF AUSTRALIA

MOHAJAN v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1811

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – Skilled Nominated (Permanent) visa – whether information in overseas work reference was false or misleading in a material particular – whether no rational or logical decision maker could arrive at the decision on the same evidence – whether obligation to make obvious enquiry about a critical fact – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.5, 359A, 476,

Migration Regulations 1994 (Cth) Schedule 2 cl.190.216, Public Interest Criterion 4020.

Cases cited:

Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration v SZIAI [2009] HCA 39; (2009) 259 ALR 429

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16;

(2010) 240 CLR 611

Applicant: JEWEL MOHAJAN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1176 of 2016

Judgment of: Judge Baird

Hearing date: 24 May 2018

Date of Last Submission: 24 May 2018

Delivered at: Sydney

Delivered on: 5 July 2018

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms C Hillary, DLA Piper

ORDERS

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1176 of 2016

JEWEL MOHAJAN

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, dated 20 April 2016, which affirmed the decision of the Delegate of the First Respondent, the Minister of Immigration and Border Protection, made 4 February 2015 (as per cover letter), to refuse to grant the Applicant a Skilled Nominated (Permanent) visa (skilled visa).

2. The Applicant, Mr Mohajan, is a citizen of Bangladesh.  He arrived in Australia on 9 March 2013 on a Subclass 462 working holiday visa.  On 25 July 2013, the Applicant lodged his present application for a skilled visa.  

3. On 11 May 2016, Mr Mohajan applied to this Court for judicial review of the Tribunal’s decision.

Legislative Framework

1. Clause 190.216 in Schedule 2 of the Migration Regulations 1994 (Cth) required that an applicant for the grant of a skilled visa at the time of the application for visa, must satisfy, inter alia, public interest criteria 4020 (PIC 4020) contained in Schedule 4 of the Regulations.

2. At the time, PIC 4020 relevantly provided that:

   (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.

   …

   (3)To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) 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.

   Note: For the definition of bogus document, see subsection 5(1) of the Act.

3. The term “bogus document” is defined in s.5(1) of the Act as follows:

   "bogus document", in relation to a person, means 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.

Background

1. In his application for skilled visa, Mr Mohajan nominated his occupation as civil engineer, assessed as such by Engineers Australia, with a Bachelor Degree in Civil Engineering from BUET (Bangladesh University of Engineering & Technology), Dhaka, Bangladesh.  He provided details of employment with 5 employers related to his occupation over the previous 10 years.  He claimed that, inter alia, he worked for Parfait Associates Limited, an engineering consulting firm in Chittagong, Bangladesh, from 2 January 2012 to 15 October 2012.  He submitted work reference letters in support of his claim.

2. Relevantly, Mr Mohajan submitted a reference letter dated 15 October 2012 under Parfait Associates letterhead, signed by Mr. Md. Asif Iqbal, Chairman, which stated that the Applicant “has been working in Parfait Associates from 2 January 2012 till date”.  The letter provided 2 addresses of the company at the foot of the letter: first, “Corporate Office: 76/C Khwaza Manjil (3^rd Floor), [in front of Lion Eye Hospital] Zakir Hossain Road, Khulshi, Chittagong” above a horizontal line, and below that line, secondly, the address “2/8, Bandar Stadium Market, Bandar Chittagong-4100” and 2 cell phone contact details and an email address.

3. In response for a request made on 10 October 2013 for further information and additional documents including, relevantly, in relation to his work experience, payslips, bank statements and taxation documents, Mr Mohajan provided salary records and a further work reference letter dated 18 November 2013 which stated that he was employed by Parfait Associates from 2 January 2012 to 28 February 2013.  That letter, also written by Mr. Asif Iqbal, provided the address of the company at the foot of the page, set out underneath a horizontal line as “2/8, Bandar Stadium Market, Bandar Chittagong - 4100” (together with the 2 cell phone contact details and email address as per the previous letter).  No additional address was set out above the horizontal line.

4. Mr Mohajan’s case officer within the Department of Immigration and Border Protection changed several time during 2013 and 2014.  The Applicant sought assistance with administrative glitches, and provided further information and documents (and resent copies of documents) in response to various case officer requests during 2013 and 2014.  He made enquiries about the progress of his application.

5. By letter dated 10 November 2014, the Department invited the Applicant to comment on unfavourable information received pursuant to employment checks conducted in relation to his claimed employment with Parfait Associates (the first site visit report).  The Department’s letter referred to Mr Mohajan’s work reference dated 18 November 2013 signed by “Engr. Md. Asif Iqubal” (sic), but not to the earlier work reference of 15 October 2012 lodged with his application (which specified two addresses, the first being the corporate office address).

6. The unfavourable information (that is, the first site visit report) set out in the Department’s letter was to the effect that on 22 October 2014 DIAC (Australian Department of Immigration and Citizenship) officers attended “Bandar Stadium Market” (I assume in Chittagong, but this was not made clear) and looked for shop 2/8, they had difficulty finding shop 2/8, and when they did, it was a shop called Dhali Telecom, the sales person they spoke to said that shop had been operating at that location for five years and he had never heard of Parfait Associates, another person claiming to have been born in the neighbourhood also said he had never heard of Parfait Associates, and the DIAC officers observed that the market was a lower end facility, with shops in poor shape.

7. The DIAC officers concluded that “the business Parfait Associates Limited never existed at this location”, and that they “were not satisfied that the employment reference supplied by the applicant from Parfait Associates Limited is a genuine reference.”  According to the extract of their report, based on their visit the DIAC officers said: “From the evidences unearthed so far, we also have serious doubts about the existence of this business named Parfait Associates Limited”.  

8. Mr Mohajan responded to the Department’s 10 November 2014 invitation to comment by email dated 12 November 2014.  He advised that the Bandar Stadium Market address was only used to get registration for Parfait Associates, and that the engineering firm was in in a different location when he worked with the company.  He reminded the Department of his work reference lodged with his application (letter dated 15 October 2012) with both addresses, and referred to the Departmental receiving date given to it.  He said of Parfait Associates that “this year they changed their company permanent address too”.  Mr Mohajan also attached copies of documents from or relating to Parfait Associates:

   (a)letter of appointment dated 15 December 2011 from the company setting out his terms and conditions (letterhead with the above corporate address);

   (b)a letter dated 10 November 2014 from the company with the letterhead address “Corporate office: Plot no 169 (Ground Floor), Road#2, Sugandha R/A, Panchlaish, Chittagong-4203”;

   (c)a certificate of incorporation dated 3 August 2010;

   (d)income tax certificates for the company dated 10 April 2013, and 6 April 2014; and

   (e)a further copy of his work reference dated 15 October 2012.

9. The Delegate was not satisfied that Mr Mohajan met PIC 4020 on the basis that he had provided bogus documents (within the meaning of s.5(1) of the Act) / misleading documents concerning his employment history in Bangladesh. As a result, the Delegate did not assess Mr Mohajan against other visa criteria and refused to grant the Applicant a skilled visa.

Proceeding before the Tribunal

1. On 11 February 2015, the Applicant applied to the (then) Migration Review Tribunal (which became the Tribunal) for review of the Delegate’s decision.  By letter dated 1 September 2015, the Tribunal invited the Applicant to attend a hearing on 25 November 2015.

2. On 11 November 2015, Mr Mohajan, by his migration agent, requested that the hearing on 25 November 2015 be postponed a few hours (given the 4 hour time difference with Bangladesh) so that the managers of Parfait Associates could give evidence, being best placed to explain the inconsistencies of the company letterheads.  The Tribunal member refused that request, but left open the possibility of receiving evidence in writing.  On 24 November 2015, Mr Mohajan provided to the Tribunal two further letters dated 23 November 2015 from Parfait Associates, again under the hand of Mr Asif Iqbal, each on letterhead with the Sugandha R/A, Panchlaish, Chittagong address.  The first letter confirmed that the Bandar Stadium Market address was initially used to obtain registration, that it was Mr Asif Iqbal’s partner’s cousin’s address, and stated that:

   After registration for continuing our official works, some company pad had been printed with registration address as company letter head.  But for whenever we found a better location we shifted at “7/6, Khwaza Manjil (3^rd floor) [in front of Lion Eye Hospital] Zakir Hossain Road, Khulshi, Chittagong” for business operation.  The office continued at this address till 2012.

   Whenever, we use printed company pad we tag the operation address on it.  Otherwise, we use computer generated company pad which contains only operation address.  Regarding reference letter on 18/11/2013 has an error.  By an unexpected mistake it was printed without company operating address.

3. A second letter under the same letterhead and signatory, and also dated 23 November 2015, certified that the Applicant had “worked in Parfait Associates Limited as a Superintending Engineer from 2 February 2012 to 28 February 2013.”  This employment reference letter had more detail but was otherwise similar in phrasing to the earlier reference letters dated 15 October 2012, 18 November 2013 and 10 November 2014 provided by the Applicant variously at lodgement and during the course of consideration of his application.  The 23 November 2015 letter described Mr Mohajan’s work duties as follows (without alteration): 

   His duties are supervising the every phase of residential building construction (i.e. Site layout, excavation, foundation, column, beam, slab, boundary wall) ensuring the reinforcement and dimensions is as per design. Check the quality of materials to meet the specifications and standard of construction. Manage the construction site labor and scheduling the site works. He also did the modelling and structural analysis of buildings using different load combinations. Moreover, he monitored project progress & report to the director of the company. His payment was on cash and paid monthly. As of January 2013 his salary was Tk. 40000.00.

   In earlier letters his duties were stated to be:

   His duties are supervising the project construction & manage the whole construction team to achieve the targeted project progress & report to the director of the company.

4. The Tribunal states in its decision that at the Tribunal hearing on 25 November 2015 Mr Mohajan gave evidence consistent with the explanation provided in Mr Asif Iqbal’s letter dated 23 November 2015 (the hearing record states the hearing took half an hour).  The Tribunal stated in its decision (at [8]) that it advised the Applicant at the hearing that another site visit would be arranged to “confirm the existence of Parfait Associates.”

5. By letter on 10 March 2016, pursuant to s.359A of the Act, the Tribunal invited Mr Mohajan to comment on or respond to certain information which it considered would, “subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review”.  The letter reproduced parts of a second site visit report, which the Tribunal had received from the Bangladeshi High Commission on 7 March 2016, reporting on a site visit regarding Parfait Associates undertaken on 23 February 2016 at 1:10pm, this time to the address of Parfait Associates at “Plot No 169 (G Floor), Road No. 2, Sugandha R/A, Chittagong 4203” (which address largely corresponds to the address provided by the Applicant and in the correspondence dated 23 November 2015).  The second site visit report records that an unnamed person and “PMO Mr. Ben Reeves” (officers) met and spoke with the Applicant’s referee, Mr. Asif Iqbal.  The extract of the report reproduced in the Tribunal’s letter stated (inter alia) that:

   Mr. Asif advised that the [A]pplicant worked for Parfait in the Project Management area for about 1 to 2 years.  However, he could not give us the [A]pplicant’s exact designation and employment duration. …

   Parfait has 10 permanent staff and some project based temporary staff … However, during our entire stay in this office premises we saw only 5 staff of parfait including the two referees …

   Mr. Asif further advised … The [A]pplicant used to conduct the following tasks for Parfait – assure quality of ongoing construction projects, conduct construction site supervision and monitoring, prepare and submit progress and other engineering reports …

   PMO requested Mr. Asif to show us some similar employment references that he had written for other staff of the business.  Mr. Asif could not show us anything and claimed that they moved office several times and that is why many documents have been lost or misplaced.  When we enquired, he advised that they moved to this current location 3 to 4 years ago.

   [The officers asserted that the Applicant was probably with them when they started working from this location and Parfait should have many records on the Applicant and be able to show some of the work related reports the Applicant submitted.]

   It did not appear to us that Mr. Asif was making enough efforts to locate these records.  We pointed to him that the Applicant was most likely working from this office in the beginning of 2013 and that they should never lose construction project related documents as these are vial documents for future reference in case of any accident or audit.  

6. The extract of the report concluded that “they [the officers] were not satisfied that the [A]pplicant’s employment claim supplied from Parfait is authentic due to the following major findings:

   During the initial stages of the site visit, referee Mr. Asif could not give us the [A]pplicant’s exact designation and employment duration.

   Referee Mr. Asif could not show us any other example of HR documentation that he or his managing director issued to other staff of the business.

   Referee could not show us any documentary evidence in support of the Applicant’s claimed employment and they had no joining, attendance, salary, and resignation etc. records on the [A]pplicant.

Referee also failed to show us any work related engineering report prepared by the [A]pplicant.”

1. On the basis of the second site visit report, the Tribunal put to Mr Mohajan that it “may find it implausible that Parfait would have been able to produce letters as recently as 23 November 2015 about your employment history and yet have no documentary records of your employment in its office.  This could lead the Tribunal to not accept that you have been employed by Parfait in the period and in the manner as claimed by you.”  

2. In the Applicant’s written submissions in response to the s.395A letter dated 24 March 2016, Mr Mohajan’s migration agent explained that:

   1. Mr. Asif, Chairman of Parfait Associates Ltd confirms that he met immigration offices from Australian visa office in Dhaka. 

   2.The immigration officers did not have an appointment when they arrived in Mr. Asif’s office and asked many questions about the business and demanded to see company documents and employment records of other employees rather than the review applicant. 

   3. Mr. Asif found that the immigration officers were rude, manipulative, asking questions with judgmental comments …

   5. Despite these poor impressions, Mr. Asif showed professional [courtesy] by confirming the review applicant’s employment and that he provide the visa applicant with employment reference letter already.

   6.Under the circumstances, it is understandable that Mr. Asif could not recall the exact duration of the visa applicant’s employment as it was over 2-3 years ago.

   7.Mr. Asif [had] informed the immigration officer that some old employment records and work records were archived after their office moved to the current location.  The visa applicant did not work at the company’s current location.  It would need time to locate the documents.

   8.Mr. Asif showed the visa applicant’s employment records to the immigration officers.  He did not show the company accounts as they are not related to the applicant’s employment.

   9. Mr. Asif has no obligation to [co-operate], especially the immigration officers showed no respect for Mr. Asif’s position and the company.

   10.The immigration officers did not ask where the other employees were.  The business is a construction company.  It is normal that engineers work on different sites outside the office during working hours.”

1. Mr Mohajan requested an extension of time in which to provide documents.  On 12 April 2016, Mr Mohajan, through his migration agent, provided further documents in support of his work experience at Parfait Associates including site progress reports from 15 March 2012 to 21 September 2012 signed by him, and payslips issued in the period 4 February 2012 to 2 March 2013 created during his employment at Parfait Associates.

The Tribunal decision

1. In its reasons for decision, the Tribunal stated that the issue arising on the review was whether the Applicant meets PIC 4020 as required by cl.190.216 for the grant of a skilled visa.

2. Based on the second site visit, the Tribunal was satisfied that the business of Parfait Associates exists. The Tribunal also found that the various work references were written by people employed by Parfait Associates. The Tribunal was satisfied that the work references were not bogus documents as defined in s.5 of the Act. The Tribunal observed, however, that the fact the work references were not bogus “does not mean that the information contained in the various material supplied by Parfait Associates [was] true”.

3. At [27] of its decision, the Tribunal outlined its primary concern with the truthfulness of the content of the work references:

   There have been two site visits in this case both of which have been unable to independently verify Mr. Mohajan’s claims.  During the second site visit at particular [sic], the purported employer was unable to provide any documentary evidence that Mr. Mohajan was employed at that organisation as claimed in a reference letter issued as recently as November 2015.  The [T]ribunal notes a claim that the employee was unable to provide any documentary evidence because the records were archived.  However this does not explain how as recently as November 2015 employer was able to provide a detailed letter about Mr. Mohajan's employment, including his particular duties.

4. The Tribunal found that the second site visit report was an accurate depiction of what occurred during the site visit.  “Accordingly the tribunal accept (sic) that Parfait Associates Ltd was unable to provide during the site visit any evidence that Mr. Mohajan was employed during the period in question.  The tribunal is not convinced by the explanation that Mr. Mohajan’s records were archived elsewhere.”

5. The Tribunal preferred the evidence of the second site visit report to the information in the documents submitted by Mr Mohajan on 12 April 2016, following the second site visit, for reasons stated at [28] of its decision:

   The information in the documents in question has not been able to be independently verified.  The [T]ribunal acknowledges that follow (sic) the February site visit further documents have been provided.  However, given the results of the first two site visits, the Tribunal saw no utility in arranging a third site visit to validate the recently received documents.

6. Based on the second site visit, the Tribunal was not satisfied that Mr Mohajan was employed by Parfait Associates “in the role and for the period as claimed in the documents” (at [28]).  Following from that conclusion, the Tribunal found that the Applicant had provided information that is false or misleading in a material particular such that he does not meet PIC 4020.

Grounds of review

1. The Applicant’s grounds of review as articulated in his application filed 11 May 2016 are as follows (typographical corrections noted):

   1.Tribunal did not consider the documents after site visit on February 201[6] [the Court notes scanning of the document has cut off the last digit]

   2.During the site visit employer told the site visitors their documents were misplaced due to office relocation. That’s why employer asked time to sharch [search] their archive and provide documents related to employment. But [T]ribunal gave the decision without considering circumstances.

   3.Tribunal asked for comments after site visit and without taking any further site visit made the decision.

Proceeding before this Court

1. Mr Mohajan appeared unrepresented, with the assistance of an interpreter.  The Minister was represented by Ms Hillary, solicitor.

2. At the commencement of the hearing, I explained to Mr Mohajan the consequences that would flow if a costs order was made against him.  He confirmed that he wished to proceed with the hearing.

Clarification of grounds of review

1. Mr Mohajan confirmed that the three grounds contained in the application filed 11 May 2016 were the grounds he wished to rely on in this proceeding.

2. He confirmed that the documents referred to in ground 1 of his application are those he submitted to the Tribunal on 12 April 2018 (described above at [24]) and identified them to the Court.  Ground 1 alleges that the Tribunal did not take into account the documents and employment records provided by the Applicant which he claimed had been archived.  When considered with ground 2, grounds 1 and 2 could also be construed beneficially as a contention that the Tribunal’s rejection of the Applicant’s explanation that the documents had been archived and its failure to accept the documents’ authenticity was unreasonable, within the principles considered in Minister for Immigration v Li [2013] HCA 18; (2013) 249 CLR 332, and Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611, esp. per Crennan and Bell JJ, and that in the circumstances the Tribunal reached an unreasonable or illogical conclusion.

3. Thus ground 2 may also be considered beneficially as contending that the Tribunal unreasonably failed to consider the Applicant’s and his former employer’s explanation that the documents requested by the Department officers during the second site visit were archived, and that the Tribunal’s decision not to accept the circumstances were as explained, or the validity of the documents subsequently provided, was unreasonable, irrational or illogical.  At the hearing in this Court, Mr Mohajan stated “the Tribunal took a decision that there was nothing to verify in terms of documents.  And that’s what I meant, the circumstances.” 

4. In Court, I sought to clarify with Mr Mohajan what he contended by ground 3, that the Tribunal made the decision “without taking further site visits”.  Construing the ground beneficially, I understand the Applicant to allege that the Tribunal failed to make an obvious enquiry about a critical fact, the existence of which is easily ascertainable, within the consideration by the High Court in Minister for Immigration v SZIAI [2009] HCA 39; (2009) 259 ALR 429, the fact being the validity of the documents provided on 12 April 2016, the enquiry being a further site visit.

5. Accordingly, I invited the Minister’s solicitor to make submissions on the above beneficial constructions of the grounds, as well as making submissions on how she had characterised the grounds in the written submissions filed.  The Court provided each of the parties with a copy of SZIAI at [25].

6. As to whether Mr Mohajan raised a critical fact about which the Tribunal had an obligation to enquire, there was no indication from the evidence in the Court Book that he had asked for a third site visit after the Tribunal hearing.  I clarified this point with Mr Mohajan.  He answered that “as I understood that when they [The Tribunal] asked for the comments and I produced those documents, I just inferred that they would go for a further checking or a further practical checking with the – with the site visit.”.

Submissions

1. I have referred to aspects of Mr Mohajan’s submissions to the Court in clarification of his grounds of review set out at [35]-[39] above. Mr Mohajan also said that if the Tribunal had considered the documents he provided, it would have come to a different conclusion. He said that at the hearing he mentioned that the Tribunal should at least do a follow up.

2. Mr Mohajan said when he was working at Parfait Associates, he had the first reference letter and the subsequent letters were follow ups.  The information is consistent from the very beginning to the most recent material.  A third site visit was required to cross-check and to validate those documents.  Mr Mohajan accepted that he did not request a third site visit, but submitted the Tribunal should have made one.

3. For the Minister, Ms Hillary submitted that ground 1 cannot be made out because the documents submitted by the Applicant were considered by the Tribunal at [28] of its decision, but that the documents did not overcome the Tribunal’s concerns as (at [27]), about how the employer could provide the detail in the 23 November 2015 letter, when the documents were said to be archived.  Ms Hillary further submitted that this finding was not so unreasonable that no decision maker rationally could have made it, and that the finding was open to the Tribunal on the evidence before it.

4. As to ground 2, Ms Hillary submitted that the explanation was clearly considered by the Tribunal, but not accepted, for the reasons that it gave.  She submitted that it was open to the Tribunal to reject the archive explanation in light of the Tribunal’s concern that “the Applicant was able to produce [the employment reference dated 23 November 2015] which provided a fair amount of detail but when asked for further documents [approximately three months later], the answer given was that they were archived, and effectively those two things are inconsistent.”

5. Ms Hillary submitted to the effect that the reasoning behind the Tribunal’s decision not to arrange a third visit was that it could not have verified the later provided documents with a person who had provided false or misleading information in a letter previously provided.  Ms Hillary submitted that it can be inferred from the Tribunal’s reasons at [27] that the Tribunal found that what was misleading information was information contained in the work experience references provided by the Applicant.

6. She submitted that it can be inferred from reading the decision as a whole that the Tribunal has found that the concerns it has arising from the second site visit led it to believe that all of the documents submitted by the Applicant on 12 April 2016 in relation to his work experience at Parfait Associates were false or misleading.  Ground 3 was merely a complaint that the Tribunal did not conduct a further site visit.  Given its conclusions arising from the second site visit report, although the Tribunal turned its mind to a third visit, it was reasonable for it to conclude there was no utility in arranging another visit. 

Consideration

1. In order to give rise to jurisdictional error on the basis of unreasonableness, illogicality or irrationality, the question before this Court is whether the decision to which the Tribunal came is one at which no rational or logical decision maker could arrive on the same evidence: SZMDS at [130] per Crennan and Bell JJ.  That is, whether the Tribunal in concluding that Mr Mohajan had given, or had caused to be given to the Tribunal, information that is false or misleading in a material particular (and so failed to satisfy PIC 4020) and by the findings leading to that decision, came to a decision that no rational decision maker could arrive at on the evidence before the Tribunal.  Thus the issue before this Court is not whether on the material before the Tribunal it would have come to a different conclusion.

2. That different minds might reach different conclusions does not give rise to jurisdictional error if it be that logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion: see SZMDS at [131].

3. I have come to the conclusion that the decision of the Tribunal does not give rise to jurisdictional error and thus that none of the grounds of the application, even if construed beneficially, are made out.

4. The Tribunal member concluded that it was not satisfied that Mr Mohajan was employed by Parfait Associates “in the role and for the period as claimed in the documents” (at [28], see above at [30]) and thus that by the documents provided he had given or caused to be given information that was false or misleading in a material particular in relation to his application for a skilled visa.  In so finding, the Tribunal did not make adverse findings more generally as to whether Mr Mohajan had or had not been employed at all by Parfait Associates, nor whether he had at any time fulfilled any particular role.  Rather its finding was that it was not satisfied of the truthfulness of the combined claims in the documents of the dates and period of employment, of the claimed role undertaken by Mr Mohajan and what he did and was paid in that claimed role for that claimed period. 

5. For the Tribunal to have found as it did it accepted that information relating to Mr Mohajan’s employment at Parfait Associates was material to his application for a skilled visa – that was why Mr Mohajan provided the documents.  It is apparent from earlier references in the Tribunal decision, and I so find, that by “the documents” at [28] the Tribunal was referring to “work references and associated material such as payslips from Parfait Associates Ltd” (see Tribunal decision at [17]) including the letter dated 23 November 2015 and earlier dated letters from Parfait Associates (see Tribunal decision at [23]) and the payslips and site progress reports provided on 12 April 2016, being the then most recently received documents (see Tribunal decision at [24] and [28]). I have described these documents above, including at [24], and the letters at [14] and [18]. I consider that the information in the documents relating to his work role and the period of his employment is information that relevantly relates to this application for a skilled visa, noting the qualifications and employment nominated in his application (see at [7] above).

6. As the Minister’s solicitor correctly identified, the crux of the Tribunal’s basis for its finding that Mr Mohajan did not satisfy PIC 4020 is to be found at [27], namely that the failure to provide documents on the second site visit and the explanation that documents were archived, did not, so it found, reconcile with the fact that, less than 3 months before the second site visit, in the letter dated 23 November 2015, the former employer was able to give a detailed written description of Mr Mohajan’s dates of employment, work role and work duties.

7. The claimed employment was most fully described in the letter of 23 November 2015, which I have extracted above at [18]. I consider that it was reasonable for the Tribunal to infer that if the information was true and correct (i.e., was not false or misleading) the author of the letter at the time he wrote it would have remembered the detail of what he wrote, or had reference to documents that embodied the facts stated in the letter, and that it was reasonable for the Tribunal to expect that, when asked during the second site visit, the person claiming to be author of that letter (Mr Asif Iqbal) would be able to recall some detail about that information or produce documents that supported what was claimed in the letter about Mr Mohajan’s employment, its duration and his role.

8. As there was no suggestion that Parfait Associates had moved between the date the letter was written, and the second site visit nearly 3 months later, I find that it was reasonable for the Tribunal not to be satisfied at the inability of Mr Asif Iqbal to be exact in his designation of Mr Mohajan’s employment duration and work designation, and his inability to provide any documentary evidence of his joining the company, attendance, salary, resignation or any work related engineering report when asked to produce them, and to find implausible Mr Asif Iqbal’s claims that documents had been misplaced.  The conclusion that the information provided in the documents was false or misleading in a material particular was a conclusion that a decision maker, acting reasonably was open to arrive at on the evidence.

9. Whilst Mr Mohajan is correct to say that the work reference documents that he submitted have been consistent from October 2012 to November 2015 as to dates, salary, and the title “Superintending Engineer (Civil)”, the Tribunal’s decision turned on the inconsistency between the detail contained in the most recent work reference, the letter of 23 November 2015, and the author’s vagueness and inability to recall detail and to produce supporting material during the second site visit nearly 3 months later.  I consider it reasonable for the Tribunal to consider that a person who wrote in the detail contained in the 23 November 2015 letter would be able to recall that detail about his former employee nearly 3 months later, or if he couldn’t recall it, would have to hand documents he relied upon to write the detail in the letter, and that those documents would have been documents of the kind requested by the officers during the second site visit, as recounted in the second site visit report. 

10. The Tribunal asked for comments on the second site visit and received further documents – the documents provided by Mr Mohajan through his migration agent on 12 April 2016.  Contrary to ground 1 and ground 3, it is evident from the Tribunal’s decision at [17], [24] and [28] that the Tribunal considered those documents.  It did not, however, conclude that the information contained in them was truthful, preferring the account given by the officers in the second site visit report.

11. For the reasons I have given above, I consider that it was open to the Tribunal, acting reasonably, to prefer the account of the second site visit (see Tribunal decision at [20]) to the matters put in Mr Mohajan’s migration agent’s letter commenting on the report (see decision at [24], and above at [23]).  It follows that ground 2 also is not made out.  The Tribunal did not fall into jurisdictional error in preferring the account given in the second site visit report, nor in concluding that the information in the documents was false or misleading in a material particular and that therefore Mr Mohajan did not meet PIC 4020(1).

12. Since Mr Asif Iqbal was the author of the letter which the Tribunal had found contained false or misleading information, and Parfait Associates was a small business, a further site visit was not an obvious inquiry for the Tribunal to make or require to be made about the payslips and site progress report documents.  To ask the author of information found by the Tribunal to be false or misleading information (i.e., the information in the 23 November 2015 letter) to verify documents purporting to substantiate that false or misleading information, could not give the Tribunal any assurance of the truthfulness or validity of the documents.

13. In these circumstances, I find that it was open to the Tribunal, acting reasonably, to conclude (at [29]) that there was no utility in the Tribunal arranging a third site visit to validate the documents provided by Mr Mohajan through his migration agent on 12 April 2016, whether or not that information would have been a critical fact, in the sense discussed in SZIAI.  For this further reason ground 3 as I have construed it beneficially, is not made out.

14. I have concluded that none of the grounds of the application are made out and that the decision of the Tribunal does not give rise to jurisdictional error.

15. It follows that the application must be dismissed, with costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Baird

Date: 5 July 2018