Momtaz v Minister for Immigration
[2019] FCCA 520
•7 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MOMTAZ v MINISTER FOR IMMIGRATION | [2019] FCCA 520 |
| Catchwords: MIGRATION – Application for business innovation and investment visa – agreed compliance with business income turnover criteria – whether applicant had submitted bogus documents for delegate’s consideration – failure of delegate to translate crucial document from Bangladesh tax authority – whether delegate entitled to rely upon factually erroneous version of the actual contents of letter from Bangladesh tax authority for the purpose of making his decision to refuse to grant the visa application – failure of delegate to properly address relevant issues required to be addressed before decision made – application granted – decision to refuse visa quashed. |
| Legislation Migration Regulations 1994 (Cth) rr.188, 4020 Migration Act 1958 (Cth) ss.5, 57(2)(a), 65 |
| Cases cited: SAAP v Minister for Immigration (2005) 228 CLR 294 Minister for Immigration v SZIAI [2009] 259 ALR 429 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Trivedi v Minister for Immigration (2014) 220 FCR 169 Gill v Minister for Immigration (2017) 250 FCR 309 |
| Applicant: | PARVEEN MOMTAZ |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File Number: | SYG 3456 of 2017 |
| Judgment of: | Judge Egan |
| Hearing date: | 27 February 2019 |
| Date of Last Submission: | 6 March 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 7 March 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr N. Poynder (direct brief) |
| Counsel for the Respondent: | Mr B. McGlade |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The decision of the respondent to refuse the applicant’s application for a sub class 188 Business Innovation and Investment (Provisional) visa be quashed.
A writ of mandamus be directed to the respondent, requiring that the decision in relation to the application for a subclass 188 Business Innovation and Investment (Provisional) visa be made in accordance with the law.
The parties each have liberty to apply on the question of costs on the giving of 3 days’ notice, each to the other.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
SYG 3456 of 2017
| PARVEEN MOMTAZ |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh who resides in Dhaka. On 26 September 2016 she lodged an application for a sub class 188 visa (Business Innovation and Investment).
The criteria for the sub class 188 visa are found in Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’). Criteria 188.213 and 188.225 are as follows:
188.213
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4020 and 4021.
(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
(3) Each member of the family unit of the applicant who is an applicant for a Subclass 188 visa satisfies public interest criteria 4001, 4002, 4003, 4004, 4010 and 4020.
(4) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 188 visa; and
(b) had turned 18 at the time of application;
satisfies public interest criterion 4019.
(5) Each member of the family unit of the applicant who:
(a) is an applicant for a Subclass 188 visa; and
(b) has not turned 18;
satisfies public interest criteria 4015 and 4016.
(6) Each member of the family unit of the applicant who is not an
applicant for a Subclass 188 visa satisfies public interest criteria 4001, 4002, 4003 and 4004.
…
188.225(1) For at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant had an ownership interest in one or more established main businesses that had an annual turnover of at least AUD500 000 in each of those years.
(2) If the applicant was engaged in one or more businesses providing professional, technical or trade services for at least 2 of the 4 fiscal years immediately before the time of invitation to apply for the visa, the applicant was directly engaged in the provision of the services, as distinct from the general direction of the operation of the business, for no more than half the time spent by the applicant from day to day in the conduct of the business.
There is no dispute between the parties that the applicant met the annual income turnover condition as provided for in criteria 188.225.
It was also not in dispute that the applicant carried on a business in Bangladesh called “Box Office Enterprise”, or, that if granted the visa, the applicant proposed to establish a business in New South Wales, the intention of which was to import goods from Bangladesh and export produce from Australia to Bangladesh and other Asian countries.
On 21 June 2017, a delegate of the respondent emailed a letter to the applicant requesting, inter alia, provision to them of “Detailed personal income tax returns, including any supporting documents, for yourself and your spouse for the 2015 and 2016 fiscal years.” [1]
[1] Court Book Page 156
On 17 July 2017, the applicant’s representative, Mr Hau, sent documents in response to the delegate’s request. [2] Those documents related both to the applicant as well as to the business of Box Office Enterprise.
[2] Court Book Page 173 - 197
On 21 July 2017, the delegate requested further information relating to the applicant having an ownership interest in one or more established main businesses that had the requisite AUD $500,000.00 annual turnover, as well as asking her for her written consent authorising the Department to liaise with the Bangladesh National Board of Revenue – Income Tax Wing - so as to “verify the Income Tax Returns” of the applicant for the fiscal years ending 30 June 2015 and 30 June 2016.
On 4 August 2017, the delegate sent an email to the respondent’s office in Dhaka attaching tax returns as well as the applicant’s letter of consent.
On 7 September 2017, an integrity officer employed by the respondent at the Australian High Commission in Dhaka, namely one Mehedi Murshed, sent an email to the delegate which relevantly stated as follows:
“Hi Aleksandar
Greetings from Dhaka. I have finalised the above referral in ICSE today with a non-genuine outcome. Please find attached the response from the Income Tax Authority of Bangladesh that is relevant to this report and useful for your record and reference purpose. Detailed information is available in ICSE.
Yours sincerely,
Mehedi Murshed
Integrity Officer”
Nothing was attached to the email sent by Mr Murshed on 7 September 2017.
On 10 September 2017, Mr Murshed sent another email to the delegate, which relevantly stated as follows:
“Hi Aleksander,
Greetings from Dhaka. The previous email had the income tax department replies in pdf format. I did not send any jpg documents. They might have gotten attached by mistake. I am send the PDF again for your reference and record purpose.
Yours sincerely,
Mehedi Murshed
Integrity Officer”
The relevant documents attached to Mr Murshed’s email of 10 September 2017 were of three (3) pages. Each page was written in a language other than English, and no translation of what was written on each page, presumably in the Bengali language, was attached. It is in fact the case that no translation of such three (3) page document was obtained by or on behalf of the respondent until in or about February 2019, at the applicant’s request, shortly prior to trial – some 1.5 years after the document came into existence.
It is not in dispute that Aleksander Josic was the delegate who received the two emails from Mr Murshed dated 7 September 2017 and 10 September 2017 respectively. In paragraphs [15] – [25] inclusive of his affidavit filed on 24 January 2019, Mr Josic swore as follows:
15. Leaving to one side communications provided by the applicant herself (or her agent) and Mr Murshed’s ISCE report (discussed below), I confirm that the only communications that I received from any person pertaining to the authenticity of the income tax documents that the Applicant provided to the Department were the two abovementioned emails from Mr Murshed as well as the email from Mr Murshed which appears at pp 212-217 of the Court Book (received 3:10pm Central Standard Time and 3:40pm Eastern Standard Time.
16. With respect to the last mentioned email described in the above paragraph, I note that, like the other emails Mr Murshed sent to me, the .jpg attachments to that email was blank.
The ISCE Report
17. Within the department’s computer systems is a programme known as Integrated Client Services Environment (‘ISCE’).
18. ISCE is an application in the Department’s systems that supports decision making for visa and citizenship applications and allows Departmental officers to electronically commence, process and finalise visa and citizenship applications in one location. Information about particular visa applicants can be stored by Departmental officers and viewed by other Departmental officers. ISCE allows Departmental officers to track assessment activities and view an applicant’s immigration history.
19. Shortly after receiving the email from Mr Murshed on 7 September 2017, I assessed ISCE to view the ISCE report that Mr Murshed had made regarding the correspondence he received from the income tax authority of Bangladesh.
20. The report that Mr Murshed had stored in ISCE stated as follows:
Tax documents referred for verification
Prmmzm
21/08/2017
Verification report received from the relevant tax authority of Bangladesh (Tax Commissioner. Taxes Zone 14, Dhaka). The Tax Commissioner Mr Jamal Ahmed has confirmed in writing that the applicants income tax documents supplied to DIBP are fraudulent. All these letter are being to you by email for your reference and record purposes. These letters are in Bangla and I am providing a summer of the findings of the income tax department for your better understanding.
Findings:
The applicants TIN number and TIN certificate is authentic.
The applicants income tax return submission slips supplied to DIBP are fraudulent.
The applicants income tax payment vouchers supplied to DIBP are fraudulent.
The tax returns supplied to DIBP for tax year 2015-16 and 2016-17 are fraudulent as they differ from the actual returns held with the income tax authority.
Real information as per records held at income tax office:
Tax Year Income as per return Net Wealth Tax Paid
2015-16 BDT300200 BDT1949450 BDT5000
2016-17 BDT301000 BDT21,00,450 BDT5000
Outcome: Non-genuine
The applicant has provided fraudulent income tax documents in support of her visa application.
As per the information supplied by the income tax authority, the applicant does not have the income and net wealth to be able to support her claims.
Prmmzm
07/09/2017
21. Recently, I accessed ISCE and caused a copy of Mr Murshed’s ISCE report to be printed off. Now produced and shown to me, annexed to this Affidavit and marked “AJ-3” is a true copy that ISCE Report.
The information before me concerning the communications from the Bangladesh tax authority
22. I have no ability to read or write Bengali
23. Accordingly, I had no understanding (or ability to understand) the un-transcribed documents that Mr Murshed attached to his 7 and 10 September 2017 emails and which appear at pages 224 to 226 of the Court Book.
24. Because of that, I relied on the ISCE report to understand what information the Bangldesh tax authority had provided to Mr Murshed about the authenticity of the applicant’s income tax documents.
25. I otherwise confirm that I received no other communications from any person about what information the Bangladesh tax authority had provided to Mr Murshed about the authenticity of the applicant’s income tax documents (other than the extent that the applicant’s agents response to 13 September 2017 natural justice letter might be seen to do so).
It is apparent that notwithstanding that the actual document from the Bangladesh Tax Authority (the ‘BTA’) relating to the applicant’s tax affairs had been attached to the email of 10 September 2017 sent by Mr Murshed to him, Mr Josic took no steps to have such document translated for the purpose of him understanding, then further assessing, the applicant’s visa application. He instead relied upon a report provided to him by Mr Murshed whereby, in such report, Mr Murshed purported to paraphrase and summarise what was written in the BTA letter.
The report, under the heading “Report from Dhaka”, and dated 7 September 2017, is Exhibit 2 to the proceeding. It relevantly provided as follows:
Tax documents referred for verification
Prmmzm
21/08/2017
Verification report received from the relevant tax authority of Bangladesh (Tax Commissioner, Taxes Zone 14, Dhaka). The Tax Commissioner Mr. Jamal Ahmed has confirmed in writing that the applicant’s income tax documents supplied to DIBP are fraudulent. All these letter are being sent to you by email for your reference and record purposes. These letters are in Bangla and I am providing a summer of the findings of the income tax department for your better understanding -
Findings:
1. The applicant’s TIN number and TIN certificate is authentic
2. The applicant’s income tax return submission slips supplied to DIBP are fraudulent.
3. The applicant’s income tax payment vouchers supplied to DIBP are fraudulent
4. The tax returns supplied to DIBP for tax year 2015-16 and 2016-17 are fraudulent as they differ from the actual returns held with the income tax authority.
Real information as per records held at income tax office:Tax year Income as per return Net wealth Tax paid
2015-2016 BDT 300200 BDT1949450 BDT5000
1. The applicants TIN number and TIN certificate is authentic
2. The applicants income tax return submission slips supplied to DIBP are fraudulent.
3. The applicants income tax payment vouchers supplied to DIBP are fraudulent.
4. The tax returns supplied to DIBP for tax year 2015-16 and 2016-17 are fraudulent as they differ from the actual returns held with the income tax authority.
Real information as per records held at income tax office:
Tax Year Income as per return Net Wealth Tax Paid
2015-16 BDT300200 BDT1949450 BDT 5000
2016-17 BDT301000 BDT21,00,450 BDT 5000
Outcome: non-genuine
The applicant has provided fraudulent income tax documents in support of her visa application. As per the information supplied by the income tax authority, the applicant does not have the income and net wealth to be able to support her claims.
Prmmzm
07/09/2017
Counsel for the applicant and the respondent agree, that to the extent that Mr Murshed prepared his “Report from Dhaka”, such report was based upon the contents of only one (1) page of the three (3) page Bangladesh Tax Office attachment, namely the letter which concerned the applicant’s tax affairs sent by the Bangladesh Tax Commissioner’s Office to Mr Murshed dated 30 August 2017 (the other two (2) pages are letters dated 28/8/2017 and 31/8/2017 respectively).
The letter dated 30 August 2017, as translated, is annexed as “MEK 4” to the affidavit of Muhammed Kabir filed on 13 February 2019. That letter, in its entirety, is as follows:
Government of the People’s Republic of Bangladesh
Tax Commissioner’s Office
Tax Zone-14, Dhaka
12/1 Bijay Nagar, Dhaka
Document No.: 7(1)/TZ-14/misc/2017-2018/215 Date: 30/08/2017
Sender: Tax Commissioner
Tax Zone-14, Dhaka
Recipient: Mr. Mehedi Morshed
Senior Integrity Officer
Australian High Commission
Via: Appropriate authority
Subject: Income Tax Certificate, Income Tax Return Form, Income Tax Return Receipt Letter Verification.
Ref: 85593954
We would like to draw to your attention to the above mentioned matter.
As per the demands made in the letter referred to, information with regards to Income Tax Certificate of this zone, Income Tax Return From and Income Tax Return Receipt Letter are being sent to you in appropriate ‘table’ for your kind perusal and for taking necessary actions.
‘Table’
Serial No.
Tax Payer’s Name and eTIN
Is the submitted Income Tax Certificate crrect?
Is the submitted Income Tax Return Receipt Letter Correct?
Is the submitted Income Tax Payment Consignment correct?
Comments
1.
Parveen Momtaz 5641 5610 4765/291
Income Tax Certificate is correct.
The submitted Tax Return Receipt Letter is not correct.
The submitted Income Tax Payment Consignment is not correct.
Anomalies observed between the Return submitted to this Circle for 2015-2016 and 2016-2017 and the Return submitted to the Australian High Commission.
‘Actual Information’
Tax Year
Income shown in Return
Neat Asset
Tax Paid
2015-2016
BDT 3,00,200/-
BDT19,49,450/-
BDT 5,000/-
2016-2017
BDT 3,91,000/-
BDT 21,00,450/-
BDT 5,200/-
Attachment:
1. Certificate, Income Tax Return Form and Income Tax Return Receipt Letter sent by the Australian High Commission.
2. Attested Certificate Income Tax Return Form and Income Tax Return Receipt Letter submitted to the circle.
[Signature], 30/08/2017
(Jamal Ahmed)
Tax Commissioner (Cha. Da.)
Tax Zone-14, Dhaka
[Signature], 30/08/2017
As is apparent after comparing the contents of MEK-4 and the “Report from Dhaka” prepared by Mr Murshed, the report misinterpreted and erroneously embellished, in substantial respects, the contents of the actual letter dated 30 August 2017 sent by the Bangladesh Tax Authority to Mr Murshed at the Australian High Commission. Some examples are as follows:
a)Unlike the Report from Dhaka, nowhere in MEK - 4 does the word “fraudulent” appear.
b)Unlike the Report from Dhaka, nowhere in MEK – 4 does the author of the Bangladesh Tax Office letter, Mr Ahmed, suggest that the documents submitted to that office via the Australian High Commission (namely the documents appearing at Court Book pages 176 – 197 inclusive) were fraudulent.
c)No explanation was forthcoming in MEK – 4 as to what was meant by the words “not correct” or “Anomalies observed” so as to justify Mr Murshed recording in the Dhaka Report that the documents submitted were different from those held on file at the Bangladesh Tax Office.
d)Unlike in the Report from Dhaka, nowhere in MEK – 4 does the word “non-genuine” appear.
e)Nowhere in MEK – 4 does an explanation appear as to what the heading “Actual Information” is meant to convey, when referencing the 2015-2016 and 2016-2017 tax years.
There is no evidence that the delegate had any basis for assuming that Mr Murshed was suitably qualified, or otherwise competent, to be entrusted with summarising any report issued to the Australian High Commission by the Bangladesh Tax Commissioner concerning the applicant’s tax affairs. Mr Murshed did not indicate, in the body of any correspondence sent by him to the delegate, or elsewhere, that he was qualified to so act as an interpreter of such correspondence. There is no other evidence to that effect.
After receipt of the “Report from Dhaka”, and erroneously acting in reliance upon the accuracy of the report prepared by Mr Murshed, the delegate sent a natural justice letter dated 13 September 2017 to the applicant (CB – 235–239 inclusive). In that letter, the delegate wrote:
“The Department has conducted checks to confirm the information that you provided in your application. During this process we have received unfavourable information which does not support your application.
…
The Department verified the income tax returns and supporting documents for the 2016 and 2015 financial years that were given to this office on 17 July 2017 with the Bangladesh tax authority. The tax authority provided the following information to the Department with respect to your tax returns and supporting documents:
- The income tax return submission slips supplied to this office are fraudulent.
- The income tax payment vouchers supplied to this office are fraudulent.
On 1 October 2017, Mr Hau, in his capacity as the applicant’s representative, sent a reply email to the delegate by which he enclosed “Revised Returns” for the relevant fiscal years, together with a letter dated 30 September 2017 setting out steps which had been taken by the applicant to investigate the Department’s concerns as set out in the delegate’s letter dated 13 September 2017. Essentially, such correspondence constituted an assertion by the applicant that there had been a misunderstanding within the BTA which had arisen because of the non-payment by the applicant of her tax liability. She said that after re-assessment of her tax, her tax return documentation was similar in effect to the documents earlier submitted by her, namely the documents at CB – 176-197 inclusive. She asked that her application be re-considered in the light of the revised returns provided by her; the fact that she had provided evidence of her payment of her outstanding tax; as well her submissions about the issues raised by the delegate as being based upon a misunderstanding. (CB – 240-287 inclusive)
The delegate did not send such revised documents back to the Australian High Commission in Bangladesh for verification, comparison, or authentication purposes, as he had earlier done with the CB – 176-197 documents. Nor was any further information as to the veracity of the applicant’s most recent explanation of events sought by the delegate, via the High Commission, from the BTA. Rather, by a letter dated 6 October 2017 sent by him to the applicant, the delegate attached his decision record which recorded a refusal of the visa application on the basis that the applicant had provided a bogus document/s to the department which was/were false or misleading in a material particular.
The delegate clearly relied upon the contents of the Report from Dhaka, as prepared by Mr Murshed, to the effect that the CB 176-197 documents were “fraudulent”, when concluding that the applicant had failed to meet the relevant PIC 4020 criteria in the Regulations, which criteria relevantly provide as follows:
PIC 4020:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister … a bogus document in relation to:
(a) The application for the visa …
A bogus document is defined in s.5(1) of the Migration Act 1958 (Cth) (‘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.
Counsel for the applicant submitted that “particulars of the relevant information” required to be provided to the applicant pursuant to s.57(2)(a) of the Act were particulars of the actual contents of the 30 August 2017 letter sent to the Australian High Commission from the Bangladesh Tax Commissioner – as translated in MEK-4 – and not as to the contents of the Report from Dhaka which was an erroneous summary of such letter’s contents.
Section 57 of the Act provides as follows:
Certain information must be given to applicant
(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or part of the reason:
(i) for refusing to grant a visa; or
(ii) for deciding that the applicant is an excluded fast track review applicant; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
Note: Excluded fast track review applicant is defined in subsection 5(1).
(2) The Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.
It was submitted by the applicant’s counsel that the letter of 13 September 2017 sent by the delegate to the applicant provided the applicant with particulars of erroneous and irrelevant information, and that, because the delegate had thereby failed to comply with the mandatory requirement under the section to provide relevant information, such non-compliance constituted jurisdictional error. [3] It was submitted that such failure was determinative of the application in favour of the applicant.
[3] SAAP v Minister for Immigration (2005) 228 CLR 294 at [77] per McHugh J; at [173] per Kirby J;
Submissions were made on behalf of the Respondent that, on the balance of probabilities, the Court should accept that the MEK – 4 translation was clear in its terms, and had the effect as contended for in the Report from Dhaka, namely that the tax documents at CB – 176-197 inclusive were fraudulently prepared and therefore bogus. The Court does not accept such submission, and instead accepts the applicant’s submissions made on point.
The contents of MEK – 4 are not clear in meaning insofar as the words “not correct” and “Anomalies observed” are concerned. The Court cannot place any weight upon the document, by reference to such terms, for the purpose of concluding that the documents provided by the applicant to the delegate were either bogus documents, or documents which were different to those held on file at the Bangladesh Tax Office. Neither does the Court find that the term “Actual Information” has any relevant meaning in the absence of the document otherwise referring to what information is considered actual (as opposed to what information is not considered actual), or even as to what constitutes actual information in all of the circumstances, irrespective of whether the information might have been considered actual or not.
In the absence of any context being given to the words “Actual Information”, the Court is unable to make any finding as to the significance, if any, of BDT incomes as recorded in the table for each of the 2015–2016 and 2016–2017 fiscal years. The fact that income was so recorded, without more information, does not in any way assist the Court in making any finding.
Further, absent some relevant expert evidence being adduced as to the way in which tax returns are prepared, filed, and assessed in Bangladesh, including the form in which they are filed, this Court is unable to make findings based upon the laws of that sovereign foreign nation. Had the BTA been asked to provide to the Australian High Commission certified copies of the applicant’s 2015–2016 and 2016–2017 tax documentation as lodged by her, and of her 2015-2016 and 2016-2017 revised tax returns, and had expert evidence been adduced as to the differences, if any, between such documentation and the CB 176–197 documentation provided by the applicant to the delegate, or as to the contextual meaning of the words “not correct”, “Anomalies observed” and “Actual Information” - as they were used in MEK – 4 - then the Court may have been able to make a finding, either based on direct expert evidence; upon inferences submitted by the respondent as being able to be drawn from the contents of MEK – 4; or upon the contents of the revised tax documents provided by the applicant to the delegate. In the absence of such expert assistance, however, the Court is unable to make any such finding.
The Court is of the view that the delegate failed to take obvious steps which could have expeditiously resolved the matter. The failure to do so constituted a failure to undertake a fair and even-handed review of the visa application. [4] The delegate failed to relevantly engage on a consideration of relevant matters.
[4] Minister for Immigration v SZIAI [2009] 259 ALR 429 at [25]
The untranslated letter of 30 August 2017 from the BTA to Mr Murshed was never translated before the visa refusal decision was made. No comparison was ever made, or sought to be made, between the documents first submitted to the delegate by the applicant, and the applicant’s tax records held by the BTA. No expert opinion was ever sought as to the authenticity of the documents provided by the applicant to the delegate. The revised tax documents submitted to the delegate by email on 1 October 2017 were never re-submitted to the BTA for verification or authentication. Each of those steps should have been taken. The Court is of the view that the delegate acted unreasonably in failing to take such steps. [5]
[5] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [128]-[131]
Had the said steps been taken, the delegate would have been obliged to send a different natural justice letter to that dated 13 September 2017. If that had been done, the applicant would have likely responded in a different way, which may have been determinative of her visa application in a positive way. The court now has no way of knowing whether that would have been the case or not. [6]
[6] Trivedi v Minister for Immigration (2014) 220 FCR 169 at [28], [32-33] and [41-49] per Allsop CJ,
The decision to refuse the visa was based upon the contents of the Report from Dhaka (Ex 2), as prepared by Mr Murshed, purportedly reflecting the view of the BTA. Because the BTA had never said that the applicant’s tax documentation was “fraudulent”, there was, factually, no basis for the delegate to find, as he did on page 4 of his decision record (CB 296):
“I have given more weight to the advice from the Bangladesh Tax Authority which confirmed that the applicant provided fraudulent income tax documents and that the tax returns given to the department differ from the actual returns held by the Tax Authority. … I find that the applicant has given documents that are counterfeit or have been altered by a person who does not have authority to do so.”The delegate was under a duty to fairly assess the applicant’s visa application. The delegate could not do so in the circumstances of the present case because he proceeded on a factually incorrect basis, which was of so fundamental a nature, that the error permeated his whole decision making process. In doing so, he took into account irrelevant factual considerations, and failed to have due regard to relevant factually based considerations. The delegate failed, on both counts, in circumstances where a decision maker acting reasonably ought to have, at the least, caused the MEK – 4 translation to be undertaken before taking any other step.
The delegate’s decision to refuse the visa application was based on the assumption that the applicant had provided fraudulent tax documentation to him. Where an erroneous factual assumption is acted upon as the fundamental basis for the making of an erroneous decision, such decision is infected with jurisdictional error, particularly in circumstances where, as here, such error was adversely determinative of the visa application. In such circumstances, the error on the part of the delegate was not an error of fact, but an error of law.
The respondent next submits that even if there had been a failure to comply with the provisions of s. 57 of the Act, there was no practical injustice to the applicant for a number of reasons.
a)It was submitted that because the applicant approached the BTA to seek clarification of her tax position after she received the 13 September 2017 natural justice letter, she was in no different position to that which she would have been in had she not received a letter which suggested that she had submitted fraudulent documents to the delegate. That can’t be so. First, the submission presupposes that the delegate would have sent her a natural justice letter in any event even if he had been in receipt of the MEK – 4 translation of the letter from the BTA dated 30 August 2017. It may have been, however, that had the delegate caused the letter of 30 August 2017 to be translated, he may have been satisfied that the requirements for a valid visa application had been met. Secondly, it can’t be inferred that the applicant would have approached the BTA in the same way as she did had she known of the contents of the MEK – 4 translation before doing so. She may very well have acted in an entirely different way and raised entirely different matters with the BTA had the paraphrased contents of MEK – 4 been put to her in a natural justice letter, rather than the allegations of fraud which were in fact contained in the letter sent to her.
b)It was then submitted that it ought reasonably to be inferred that the applicant was in fact aware of the contents of the MEK – 4 letter. There is no substance to such submission. Though the applicant sent a response to the delegate via her representative (CB 240-287), the applicant’s response (contained in that letter from OSEMED to the delegate dated 30 September 2017 (CB 244-245)) is almost entirely directed to the issue of her tax re-assessment in respect of her revised tax returns, rather than a response directed to questions of fraud. It may have been that any irregularity in her tax affairs was confined, as was suggested by her, to her non-payment of tax. It may also have been the case that the person she consulted at the BTA was likewise only concerned about non-payment of tax. It cannot be inferred that her questioning of personnel at the BTA even resulted in her receiving a copy of the MEK – 4 letter before her response of 1 October 2017 was sent back to the delegate. The fact that Mr Hau annexed a copy of the MEK – 4 letter to his affidavit sworn on 10 November 2017 – more than one month after the delegate made his decision to refuse the visa application on 6 October 2017 – does not support an inference that the applicant was in possession of a copy of such letter before she sent her response to the delegate.
c)A further submission was that because the natural justice letter made reference to the CB 176-197 documents being different from the actual returns held by the BTA, the applicant was in the same position as if she had received a copy of MEK – 4 at the same time that she received the natural justice letter. That submission fails for the same reasons as referred to above, in relation to the “not correct” and “Anomalies observed” references being incapable of contextual meaning. The submission also fails because, to the extent that reference is made in the natural justice letter (CB 235) to the effect that the CB 176-197 documents provided by the applicant to the delegate were different from the documents held by the BTA, such assertion was made in the context of the documents being fraudulent because they were different. Such is a non sequitur in circumstances where the foundation for an assertion that a difference existed has not been established. There is no merit to the respondent’s submissions in that regard.
The futility argument advanced on behalf of the respondent has not been made out. In any event, the Court adopts the approach of the Full Federal Court in Gill v Minister for Immigration (2017) 250 FCR 309 at [96]-[98] per Griffiths and Moshinsky JJ where it was said:
[96] That passage correctly highlights the need for considerable caution before a remedy, such as mandamus, is withheld on the ground of lack of utility even where a jurisdictional error has been demonstrated. Helpful guidance can be obtained from the joint judgment of Gaudron and Gummow JJ in Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 (Aala) at [55] (footnotes omitted):
55. “Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less.” (Footnote omitted.)
[97] Their Honours acknowledged at [57] that, in cases of denial of procedural fairness, the nature of the alleged irregularity may be a matter going to the discretion to deny a remedy on the basis that, in any event, no different result would have been reached.
[98] In Aala, Gaudron and Gummow JJ made the following pertinent observations at [80] (footnote omitted and emphasis added):
Thus, the second Tribunal's estimate of the cogency of the prosecutor's claim permeated its reasoning. The evidence before the first Tribunal was given on 4 December 1996. The 16 page statement which accompanied the application for an order for review by the Federal Court was dated shortly thereafter, on 14 January 1997. It cannot be predicted that, had this been pointed out to the second Tribunal, it would inevitably have had a result which did not involve an adverse finding with respect to the prosecutor's credit. However, it can at least be said that this might have deterred the second Tribunal from concluding as it did. It is sufficient that “the denial of natural justice deprived [the prosecutor] of the possibility of a successful outcome”.
It cannot be said that the applicant received a fair appraisal of her visa application. The process of assessment was fundamentally flawed and she was denied natural justice thereby. Jurisdictional error has been established. The delegate acted unreasonably as detailed above.
The decision of the respondent to refuse the applicant’s visa application should be quashed.
A writ of mandamus should issue, directed to the respondent, requiring that a decision relating to the applicant’s visa application be made according to law.
Costs
The Court reserves the question of costs consistent with the wishes of the parties.
The parties have liberty to apply on the issue of costs on the giving of 3 days’ notice, each to the other.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Egan
Date: 4 March 2019
and at [204]-[208] per Hayne J Buchanan and Rangiah JJ; and Gill v Minister for Immigration (2017) 250 FCR 309 at [59-67] per
Griffiths and Moshinsky JJ, and Logan J at [1]
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