Mohajan v Minister for Immigration and Border Protection
[2018] FCA 1893
•29 November 2018
FEDERAL COURT OF AUSTRALIA
Mohajan v Minister for Immigration and Border Protection [2018] FCA 1893
Appeal from: Mohajan v Minister for Immigration & Anor [2018] FCCA 1811 File number: NSD 1311 of 2018 Judge: WIGNEY J Date of judgment: 29 November 2018 Catchwords: MIGRATION – application for Skilled Nominated (Permanent) (class SN) (subclass 190) visa – failure to satisfy cl 190.216 of Schedule 2 to the Migration Regulations 1994 (Cth) – failure to satisfy PIC 4020 – finding that appellant provided information that was false or misleading in a material particular
ADMINISTRATIVE LAW – judicial review – failure to consider documents – unreasonableness – where primary judge found no jurisdictional error – appeal dismissed
Legislation: Migration Act 1958 (Cth), ss 5, 476
Migration Regulations 1994 (Cth), cl 190.216 of Schedule 2, criteria 4001, 4002, 4003, 4004, 405, 4010, 4020, 4021 of Schedule 4
Cases cited: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Date of hearing: 26 November 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 46 Counsel for the Appellant: The Appellant appeared in person Solicitor for the First Respondent: S Valliappan of DLA Piper Counsel for the Second Respondent: The Second Respondent filed a submitting appearance, save as to costs ORDERS
NSD 1311 of 2018 BETWEEN: JEWEL MOHAJAN
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
WIGNEY J
DATE OF ORDER:
26 NOVEMBER 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
WIGNEY J:
The appellant, Mr Jewel Mohajan, is a national of Bangladesh. He arrived in Australia in March 2013 as the holder of a Subclass 462 working holiday visa. In February 2015, a delegate of the Minister for Immigration and Border Protection refused to grant Mr Mohajan a Skilled Nominated (Permanent) (class SN) (subclass 190) Skilled – Nominated visa. Mr Mohajan applied to the Administrative Appeals Tribunal for a review of that decision. That application was unsuccessful. He then challenged the Tribunal’s decision in judicial review proceedings in the Federal Circuit Court of Australia pursuant to s 476 of the Migration Act 1958 (Cth).
In the Circuit Court, Mr Mohajan alleged, in short terms, that the Tribunal erred in the exercise of its jurisdiction because it failed to consider certain documents provided by him during the course of the review or, alternatively, reached an unreasonable or illogical conclusion in respect of those documents. Mr Mohajan also contended that the Tribunal had acted unreasonably in failing to arrange a third further site visit to the premises of his former employer in Bangladesh, Parfait Associates Ltd. The primary judge in the Circuit Court rejected Mr Mohajan’s contentions concerning the Tribunal’s exercise of its review jurisdiction and dismissed his application. Mr Mohajan now appeals from the decision of the primary judge.
For the reasons that follow, Mr Mohajan’s appeal has no merit and must be dismissed.
BACKGROUND
Mr Mohajan applied for the visa on 25 July 2013. The criteria for the grant of the visa at the relevant time were set out in Schedule 2 to the Migration Regulations 1994 (Cth). Relevantly, subcl 190.216(1) required that the visa applicant satisfy public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021, found in Schedule 4 to the Regulations. The relevant criterion in issue in Mr Mohajan’s case was public interest criterion 4020 (PIC 4020). The other criteria related to character, security, debt, passport and medical requirements for the grant of the visa, as well as the visa applicant’s ability to establish themselves in Australia without imposing undue difficulties or costs on the Australian community, should they intend to remain in Australia for longer than 12 months.
At the relevant time, PIC 4020 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 Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b)ending when the Minister makes a decision to grant or refuse the application;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(3)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.
On his visa application form, Mr Mohajan nominated his occupation as “Civil Engineer”. He also provided a 10-year history of his employment in Bangladesh. He indicated that he had been employed by Parfait Associates as a “Superintending Engineer” from 2 January 2012 to 15 October 2012. He also provided a reference letter from Mr Md Asif Iqbal, the Chairman of Parfait Associates, which listed two different addresses for the company, one of which was for the “corporate office”.
On 10 October 2013, a delegate of the Minister wrote to the applicant to request further information in relation to his visa application, including, relevantly, payslips, bank statements, and taxation documents. Mr Mohajan provided various payslips from his former employers and a further reference letter from Mr Iqbal, which indicated that Mr Mohajan had been employed by Parfait Associates from 2 January 2012 to 28 February 2013 and listed only one of the company’s addresses.
It would appear that something, it is unclear exactly what, prompted the Department to conduct further investigations into Mr Mohajan’s circumstances. On 22 October 2014, officers from the Minister’s Department visited the address for Parfait Associates which was listed on the second of Mr Iqbal’s reference letters: an address in Chittagong, Bangladesh. The officers had difficulty finding the address and, once they did, they found that it was a shop called Dhali Telecom. The officers spoke to the sales person in Dhali Telecom, who indicated that the shop had been operating in that location for five years and that he had never heard of Parfait Associates.
On 10 November 2014, a delegate of the Minister wrote to Mr Mohajan, inviting him to comment on adverse information received during checks conducted by the Department to confirm information provided in his visa application. The letter set out the findings of the Departmental officers who conducted the site visit on 22 October 2014 and relevantly stated (see Appeal Book “AB” 207):
In the employment reference, it has been stated the applicant was employed by Parfait from 02/01/2012 to 28/02/2013 as an engineer. However, during the site visit it became evident to DIAC officers that the business Parfait Associates Limited never existed at this location and the current occupants (Dhali Telecom) of the shop 2/8 have been using it for more than 5 years now which overlaps the claimed employment period of the applicant at Parfait Associates Limited at this location. Due to the discrepancies described above and information collected during the site visit, DIAC officers are not satisfied that the employment reference supplied by the applicant from Parfait Associates Limited is a genuine reference. From the evidences unearthed so far, we also have serious doubts about the existence of this business named Parfait Associates Limited.
Based on the check conducted, I am led to believe that the employment claims made by the applicant are non-genuine.
On 12 November 2014, Mr Mohajan responded by email to the delegate’s letter. That email relevantly stated (see AB 210):
Actually, my employer did a mistake not mentioning current company address in my reference letter. When I ask my employer and informed me, the address in my experience certificate is the company registration address and where there were no engineering firm related activities at all. The address was used only for to get registration and for all official activities such as company tax return but engineering firm office was in different locations. This year they changed their company permanent address too. When I was working, the address was “76/C, Khwaza Manjil (3rd floor) [in front of lion eye hospital] Zakir Hossain Road, Khulshi, Chittagong” and have a ref. letter which was issued on 15/10/2012 with both addresses.
Mr Mohajan also provided various documents relating to his employment at Parfait Associates, including: his letter of appointment dated 15 December 2011; a further reference letter from Mr Iqbal dated 10 November 2014; a certificate of incorporation of Parfait Associates dated 3 August 2010; income tax certificates for the company of various dates; and another copy of the reference letter from Mr Iqbal dated 15 October 2012. Notably, one of the income tax certificates for Parfait Associates listed a third, and different, address for the company.
A delegate of the Minister refused Mr Mohajan’s visa application on 4 February 2015. The delegate was not satisfied that Mr Mohajan satisfied PIC 4020 and, therefore, that he met the criteria in cl 190.216 of Schedule 2 to the Regulations.
THE TRIBUNAL PROCEEDINGS AND DECISION
On 11 February 2015, Mr Mohajan applied to the Tribunal for a review of the delegate’s decision. On 1 September 2015, the Tribunal invited Mr Mohajan to appear at a hearing before it on 25 November 2015. On 11 November 2015, Mr Mohajan’s migration agent requested that the hearing scheduled at 9:30am on 25 November 2015 be postponed for a few hours on the same day, to allow the managers of Parfait Associates to give evidence by telephone at the hearing. On 17 November 2015, the Tribunal wrote to Mr Mohajan, via his migration agent, advising him that the Tribunal had decided not to postpone the hearing and noting that his former employer may wish to provide evidence in writing and that the Tribunal would contact them at a later date, “if need be”.
On 24 November 2015, Mr Mohajan’s migration agent provided two letters from Mr Iqbal dated 23 November 2015. The first relevantly stated (see AB 285):
Address is a must for the registration of any Company or organization which needs to be in a commercial area. At the beginning, we were not getting commercial space. So we have to use my partner’s cousin’s address “2/8, Bandar Stadium Market, Bandar Chittagong – 4100” to obtain the registration. 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 “76/C, Khwaza Manjil (3rd Floor) [In front of Lion Eye Hospital] Zakir Hossain Road, Khulshi, Chittagong” for business operation. The office was continued at this address till 2012. After that it was shifted to “Plot No. 169(Ground Floor) Road# 2, Sugandha R/A, Panchlaish, Chittagong- 4203”. Now all official activities are updated and being continued with this address.
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.
The second letter was in a similar form to the reference letters previously provided by Mr Mohajan, but provided more detail about Mr Mohajan’s duties and salary during his employment at Parfait Associates.
On 25 November 2015, Mr Mohajan appeared before the Tribunal. He was assisted by his migration agent.
In its reasons, the Tribunal summarised Mr Mohajan’s evidence in relation to Parfait Associates’ various addresses; evidence which was essentially consistent with the explanation in Mr Iqbal’s letter dated 23 November 2015, the relevant parts of which were reproduced earlier. The Tribunal noted that it had advised Mr Mohajan at the hearing that it would arrange a site visit to “confirm the existence of Parfait Associates”.
On 7 March 2016, the Tribunal received a report from the Bangladeshi High Commission. The report recorded that two officers had visited the address at Plot No 169 (G Floor), Road No 2, Sugandha R/A, Chittagong 4203 at 1:10pm on 23 February 2016 and met Mr Iqbal. Mr Iqbal told the officers that Mr Mohajan had worked for Parfait Associates in the “Project Management area” for about one to two years, but could not give the officers Mr Mohajan’s exact employment duration and designation. He also told the officers that Parfait Associates had 10 permanent staff and some project-based temporary staff, the numbers of which varied depending on the type and number of ongoing projects. He listed a number of tasks undertaken by Mr Mohajan during his employment with Parfait Associates. The officers asked to see some other employment references written by Mr Iqbal, but he was unable to produce anything, noting that the company had “moved to this current location 3 to 4 years ago” and, before that, were in “various other locations” and “that is why many documents [had] been lost or misplaced”.
The report went on to state, relevantly (see AB 294-295):
We then showed the applicant’s employment references to [Mr Iqbal] which he had issued and pointed to him that as per these letters the applicant worked for Parfait from 02/01/2012 to 28/02/2013. They moved to this current office location 3 to 4 years ago and thus the applicant was probably with them when they started working from this location. As such, they should have many records on the applicant and they should also be able to shown us some of the work related reports the applicant submitted in the course of his employment.
Mr Iqbal stated that the applicant supervised two of their residential projects – Marine Homes and Deen Monjil. We pointed to him that we would highly appreciate if some work related documentation from these projects with the applicant’s inputs could be shown to us along with his joining, attendance, salary and resignation records. Mr Iqbal stated that they have misplaced many of these records when they moved office and started looking for these in his cabinet. After a while he stated the he could not locate any such records.
…
It did not appear to us that Mr Iqbal 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 vital document for future reference in case of any accident or audit. Mr Iqbal made no comments. We again asked for salary records of the applicant pointing out that salary records are also normally maintained by all offices for accounting related purposes. Mr Iqbal advised that he would not be able to show us any documentation in relation to the applicant’s employment with Parfait as he does not know where these documents have been kept. We ended the site visit thanking everyone for their time and co-operation.
Based on the site visit described above, we are not satisfied that the applicant’s employment claim supplied from Parfait is authentic due to the following major findings –
During the initial stages of the site visit, referee Mr Iqbal could not give us the applicant’s exact designation and employment duration
Referee Mr Iqbal also 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 applicant.
Referee also failed to show us any work related engineering report prepared by the applicant.
Referee claimed that these records where misplaced when the business moved office. However, when it was put to him that his claims were implausible he made no comments.
…
Outcome: Non-genuine.
On 10 March 2016, the Tribunal wrote to Mr Mohajan, via his migration agent, inviting him to comment on or respond to information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The letter set out the text of the report of the site visit and stated as follows (see AB 295):
The above information is relevant because your claimed employer at Parfait was unable to produce any documentary evidence that you were employed by that business in the period claimed. The tribunal 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. This could lead the tribunal to find that you have given the department and the tribunal information that is false or misleading in a material particular in relation to your application for the Subclass 190 visa.
This in turn could lead the tribunal to find that you do not satisfy public interest criterion 4020(1) of Schedule 4 to the Migration Regulations 1994. The tribunal may also find that there are no compelling circumstances that affect that interests of Australia; or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen to justify the granting of the visa.
This in turn could lead the tribunal to find that you do not satisfy public interest criterion 4020, which in turn would mean that you do not satisfy cl.190.216 of Schedule 2 to the Regulations.
Mr Mohajan was invited to provide comments or a response by 24 March 2016. On that day, Mr Mohajan’s migration agent sent an email to the Tribunal, making various submissions in response to the report of the site visit. His migration agent also requested an extension of time of two weeks to provide documents from Parfait Associates, including his tax returns, salary payment records, and construction reports, noting that it would “take time for the company to find [the documents] from the company archives and make them available to the Tribunal”. On 12 April 2016, Mr Mohajan’s migration agent provided copies of the foreshadowed documents to the Tribunal.
In its reasons, the Tribunal identified that the issue before it was whether Mr Mohajan met PIC 4020; in particular, whether he had provided “information that was false or misleading in a material particular”. The Tribunal identified the “information” in question as “work references and associated material such as payslips from Parfait Associates Ltd”, which stated that Mr Mohajan was “employed as a superintending engineer from 2 January 2012 to 28 February 2013”.
Based on the February 2016 site visit, the Tribunal found that it was “apparent that the business Parfait Associates Ltd exists” and 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 was not satisfied, however, that Mr Mohajan was employed by Parfait Associates in the role and for the period as claimed in the reference letters. In so finding, the Tribunal noted that, at the second site visit, the 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 23 November 2015. The Tribunal was not convinced by the explanation that Mr Mohajan’s records were archived elsewhere. In concluding its findings on PIC 4020, the Tribunal noted as follows (AB 13 at [28]):
Based on the second site visit the tribunal is not satisfied that Mr Mohajan was employed by Parfait Associates Ltd in the role and for the period as claimed in the documents. The information in the documents in question has not been able to be independently verified. The tribunal 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.
The Tribunal concluded that Mr Mohajan had provided information that was false or misleading in a material particular and, therefore, that he did not meet PIC 4020(1). The Tribunal was also not satisfied that Mr Mohajan’s employment at Crust Pizza was a compelling circumstance that justified the waiver of PIC 4020(1). The Tribunal affirmed the decision not to grant Mr Mohajan the visa.
THE CIRCUIT COURT PROCEEDINGS AND JUDGMENT
Mr Mohajan applied to the Circuit Court for judicial review of the Tribunal’s decision. His application advanced the following three grounds (as drafted):
1. Tribunal did not consider the documents after site visit on February [2016].
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 their archive and provide documents related to employment. But tribunal gave the decision without considering circumstances.
3.Tribunal asked for comments after site visit and without taking any further site visit made the decision.
Mr Mohajan also filed an affidavit which annexed the Tribunal’s decision.
As can be seen, Mr Mohajan’s review grounds lacked clarity and did not properly identify any grounds upon which it could be found that the Tribunal made any jurisdictional error. Unfortunately, Mr Mohajan also did not file any written submissions in support of his application.
Mr Mohajan’s application was heard by the primary judge on 24 May 2018. At the hearing, the primary judge sought to clarify Mr Mohajan’s grounds of review. Her Honour gave a beneficial construction to each of the grounds. After confirming with Mr Mohajan that the documents referred to in ground one were those that he provided to the Tribunal on 12 April 2016, the primary judge considered that grounds one and two could, construed beneficially, amount to a contention that the Tribunal’s rejection of Mr Mohajan’s explanation that the documents had been archived by Parfait Associates and its failure to accept the authenticity of the documents was legally unreasonable or illogical, within the principles considered in Minister for Immigration and Citizenship v Li(2013) 249 CLR 332 and Minister for Immigration and Citizenship v SZMDS(2010) 240 CLR 611. Her Honour also considered that ground two could be construed beneficially as amounting to a contention that the Tribunal failed to consider the explanation given by Mr Mohajan and his former employer that the documents had been archived, and that the Tribunal’s decision not to accept that explanation, or the validity of the documents, was unreasonable or illogical. As for ground three, her Honour took that ground to allege that, by failing to organise a further site visit in order to validate the documents, the Tribunal failed to make an obvious enquiry about a critical fact, the existence of which was easily ascertainable, within the principles considered in Minister for Immigration and Citizenship v SZIAI(2009) 111 ALD 15.
The primary judge concluded that none of Mr Mohajan’s grounds of review, even if construed beneficially, had been made out (Reasons for Judgment at [48]).
The primary judge considered that the crux of the Tribunal’s finding that Mr Mohajan did not satisfy PIC 4020 was to be found at [27] of the Tribunal’s decision. That finding, in essence, was that the inability of Mr Iqbal to provide documents on the second site visit, and the explanation that the documents were archived, did not reconcile with the fact that, less than three months before that site visit, Mr Iqbal was able to give a detailed written description of Mr Mohajan’s dates of employment and work duties (Judgment at [51]). Her Honour considered that it was reasonable for the Tribunal to infer that, if the information was true and correct, the author of the letter, Mr Iqbal, would have had reference to documents from which he was able to glean the facts referred to in the letter and would have been able to produce those documents (Judgment at [52]). Further, given the timing of the site visit and its proximity to the date of the letter of 23 November 2015, the primary judge found that it was reasonable for the Tribunal to be sceptical about Mr Iqbal’s inability to be exact in his description of the details of Mr Mohajan’s employment, and to find implausible the claims that the documents had been misplaced (Judgment at [53]). It followed that there was no basis for finding that the Tribunal’s reasoning and decision was irrational, illogical, or legally unreasonable.
The primary judge also found, in relation to ground two, that it was evident from the Tribunal’s reasons (at [17], [24] and [28]) that it had considered the documents provided by Mr Mohajan’s migration agent on 12 April 2016 (Judgment at [55]). Her Honour considered, for the reasons already given, that it was open to the Tribunal to prefer the account of the second site visit to the matters put in the email sent by Mr Mohajan’s migration agent responding to the report. Her Honour found that ground two was not made out (Judgment at [56]).
The primary judge also found that ground three had not been made out (Judgment at [58]). Her Honour considered that, since Mr Iqbal was the author of the letter which the Tribunal found contained false or misleading information, a further site visit was not an obvious enquiry for the Tribunal to make. That was essentially because arranging another site visit so that the author of documents that the Tribunal considered contained false or misleading information could be asked to verify the authenticity of further documents would not have given the Tribunal any assurance of the validity of the documents (Judgment at [57]). In those circumstances, her Honour found that it was open to the Tribunal to conclude that there was no utility in conducting a third site visit (Judgment at [58]).
The primary judge dismissed Mr Mohajan’s application with costs.
APPEAL GROUNDS AND SUBMISSIONS
Mr Mohajan’s notice of appeal, filed on 23 July 2018, contained two grounds, as follows (as drafted):
1. The FCC Made error in Judgment regarding law
2. FCC did not consider my view on documents that I was expecting.
Mr Mohajan also sought the following orders:
1. Reconsider my documents.
2. Make a site visit.
On 10 August 2018, a Registrar of the Court ordered Mr Mohajan to file and serve written submissions on or before 12 November 2018. Mr Mohajan did not avail himself of that opportunity. That was unfortunate given the obvious lack of clarity and particularity of his grounds of appeal.
Mr Mohajan appeared at the hearing and was invited to make any oral submissions or present any arguments in support of his appeal. While Mr Mohajan did take up that invitation, unfortunately his oral submissions also did not assist his case. He was not able to identify the error of law by the primary judge which was the subject of appeal ground one. Nor did he advance any meaningful submissions concerning his second ground of appeal, other than to indicate that the documents referred to in that ground were the documents that were sent to the Tribunal on 12 April 2016 in response to the Tribunal’s letter which reported the details of the site visit. It was, however, unclear what “view” on those documents Mr Mohajan contended was not considered by the primary judge. Mr Mohajan’s main submission was that the Tribunal did not arrange a further site visit.
MERITS OF THE APPEAL
Mr Mohajan’s grounds of appeal are without merit and may be dealt with shortly.
Ground one of Mr Mohajan’s notice of appeal is nothing but a broad allegation that the primary judge made an error in her Honour’s judgment “regarding law”. Mr Mohajan did not clearly identify or articulate any “error … regarding law” in the Judgment under appeal. Nor did he demonstrate any misconstruction or misapplication of the relevant law by the primary judge.
It is readily apparent from the primary judge’s reasons that her Honour carefully clarified with Mr Mohajan the nature of his three grounds of review. Having construed each of Mr Mohajan’s grounds beneficially, her Honour went on to apply the relevant principles of law which applied in relation to those grounds.
The primary judge’s reasons for rejecting ground one of Mr Mohajan’s application for judicial review were essentially based on her Honour’s conclusion that the relevant findings made by the Tribunal were open to it on the basis of the material before it; in particular, that it was open to the Tribunal to conclude that the information provided in the documents was false or misleading in a material particular. It followed that there was no basis for Mr Mohajan’s contention that the Tribunal’s reasons for dismissing his review application were illogical or that its decision was legally unreasonable. The primary judge’s findings in that regard were not erroneous. Indeed, they were plainly correct. Her Honour correctly applied the principles in SZMDS.
The primary judge was also correct to reject Mr Mohajan’s apparent claim that the Tribunal erred in not arranging a further site visit. In that regard, her Honour correctly applied the principles in SZIAI. Such enquiries as could have been made during a further site would not, in all the circumstances, constitute obvious enquiries about critical facts the existence of which was easily ascertainable. Indeed, in all the circumstances, a further site visit would have been pointless. It should also be noted, in this context, that Mr Mohajan acknowledged to the primary judge that he did not request a further site visit: Judgment at [41].
As for appeal ground two, there is no basis for the claim that the primary judge did not consider Mr Mohajan’s “views on documents”. It is apparent from the primary judge’s reasons that her Honour not only invited Mr Mohajan to make submissions in relation to his application, but actively engaged with him concerning his grounds of review. Relevantly, the primary judge confirmed with Mr Mohajan that the documents referred to in ground one of his application were the documents he submitted to the Tribunal on 12 April 2016: Judgment at [35]. Her Honour noted that Mr Mohajan submitted that “if the Tribunal had considered the documents he provided, it would have come to a different conclusion”: Judgment at [40]. Her Honour found, however, that it was clear from the Tribunal’s reasons that it had considered those documents, but did not consider that the information contained in them was truthful. Her Honour also correctly found that the Tribunal’s findings concerning the documents were open to it on the materials before it. It follows that Mr Mohajan’s contention that the primary judge did not consider his “views” on the documents in question has no merit and must be rejected.
Finally, Mr Mohajan’s submission that the Tribunal erred in not arranging a further site visit has no merit and should be rejected, essentially for the reasons given by the primary judge.
It should also perhaps be noted, for completeness, that the Court does not have jurisdiction to make the orders sought by Mr Mohajan in his notice of appeal. As was explained to Mr Mohajan at the hearing of his appeal, the Court’s task on appeal is to determine whether the primary judge made any appealable error in deciding his application for judicial review. It is not the role of this Court on appeal to reconsider Mr Mohajan’s documents and decide whether or not he should be granted a visa. Nor is it within the Court’s power to order that the Department or the Tribunal arrange another site visit to Parfait Associates in Bangladesh.
CONCLUSION AND DISPOSITION
Mr Mohajan’s grounds of appeal have no merit. His appeal must be dismissed with costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate:
Dated: 29 November 2018
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