Mushinwa v Minister for Home Affairs
[2019] FCCA 1963
•17 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUSHINWA & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1963 |
| Catchwords: MIGRATION –– Review of decisions – Non-protection visa (Pt 5-reviewable) decisions – Student (Temporary) (Class TU) (Subclass 500) visa – no jurisdictional error demonstrated |
| Legislation: Migration Act 1958 (Cth), ss.359(1), 363(1)(b) Migration Regulations 1994 (Cth), Sch.2, cll.500.214, 500.217(1) |
| Cases cited: Botha v Minister for Immigration and Border Protection [2017] FCA 362 |
| First Applicant: | AINA GLORIA MUSHINWA |
| Second Applicant: | EMEKA MUSHINWA |
| Third Applicant: | PRAISE EXCELLENT MUSHINWA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | BRG 1078 of 2018 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 10 May 2019 |
| Date of Last Submission: | 10 May 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 17 July 2019 |
REPRESENTATION
| Counsel for the Applicants: | Mr Hii |
| Solicitors for the Applicants: | PCE Lawyers |
| Counsel for the First Respondent: | Ms Forder |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent entered a submitting appearance |
ORDERS
The further amended application filed on 14 May, 2019 be dismissed;
The applicants pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,467.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 1078 of 2018
| AINA GLORIA MUSHINWA |
First Applicant
| EMEKA MUSHINWA |
Second Applicant
| PRAISE EXCELLENT MUSHINWA |
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicants seek the issue of constitutional writs in respect of the second respondent’s decision made on 25 September, 2018 in which it affirmed a decision to reject their student visa applications.
A delegate of the first respondent had rejected the applicants visa applications asserting that they failed to satisfy Public Interest Criteria 4020 (PIC4020) because the Nigerian Corporate Affairs Commission had informed the Department of Home Affairs that a memorandum and articles of association which the first applicant lodged with her student visa application “were not issued by it”.
The applicants submit that the principal question for the Court is to determine whether the Tribunal correctly decided their review application on the first hearing date when:
a)the Tribunal’s reasons did not give any real consideration to the applicants explanation about why the Nigerian Commission may have said the Documents “were not issued by it”;
b)when prompted by the Tribunal, rejected the applicants’ requests for an adjournment to obtain direct evidence in support of their explanation; and
c)it found that there was no evidence before it that there were compelling or compassionate circumstances that would lead to a waiver of PIC4020.
The first applicant relies upon a further amended application for review in respect of which she sought leave to file and read at the commencement of the hearing before me. Leave was not opposed and I granted it. That bought the application for review into line with the written submissions that had been delivered on behalf of the applicants.
The first respondent opposes the application. The second respondent enters a submitting appearance.
Background
The first applicant is a citizen of Nigeria. The second and third applicants are her spouse and child. They are also Nigerian citizens.
The first applicant arrived in Australia in 2014 on a Student (Temporary) (Class TU) (Subclass 500) visa to study a diploma in community services at a TAFE college in Western Australia. She was accompanied by the second and third applicants who arrived on accompanying visas granted on the basis that they were members of the first applicant’s family unit.
While residing in Australia the first applicant graduated from her TAFE course, and commenced a Bachelor of Science (Nursing) degree at Edith Cowan University where she continues to study. She also gave birth to a second child on 12 January, 2018. The second child is not a party to these proceedings.
On 29 August, 2016 the applicants applied for further visas prior to their then current visas expiring. For present purposes, of the criteria that the first applicant had to meet to obtain her student visa, the most relevant to this case are those contained in cll.500.214 and 500.217(1) of schedule 2 of the Migration Regulations 1994 (Cth). Amongst other matters, by those criteria the applicants had to satisfy the first respondent of two things, namely:
a)that the first applicant and her family had sufficient funds to meet their costs and expenses during the period of their intended stay in Australia (cl.500.214). In the context of this case, this meant that the first applicant had to satisfy the first respondent that she and her family had access to $40,490 in funds; and
b)that the applicants met public interest criteria 4020 (cl.500.217).
As to the second matter, that meant that the first applicant needed to satisfy the first respondent of the matters set out in PIC4020(1), unless she could establish an entitlement to PIC4020(1) being waived by virtue of the compelling circumstances provisions in PIC 4020(4).
On 10 October, 2016 the first respondent’s Department wrote to the first applicant seeking that she provide evidence establishing that she had access to $40,490 in funds.
On 23 October, 2016 at the request of the first respondent’s Department, the first applicant lodged a number of documents in support of the application. She asserted that she had access to $40,490 that was held in the bank account of a company named Johnfidel Global Concept Limited. Johnfidel Global Concept Ltd is a Nigerian company which, it is said, belongs to the first applicant’s uncle. The first applicant’s uncle had agreed to sponsor the applicants, and for Johnfidel to stand as the applicants’ surety.
She included with her response, a number of documents, namely:
a)a bank statement for Johnfidel showing that, as at 19 October, 2016 it had NGN15,154,939.68 or around AUD$62,135.25 in the account;
b)a document entitled “Sworn Affidavit for Sponsorship” executed by Ifeanyi Fidelis Chizelunwa – which deposed that:
i)he was the first applicant’s uncle (as well as the second applicant’s brother-in-law);
ii)“I will sponsor all of [the applicants] at Australia and be responsible for the [applicant’s] tuition fees and every other expense they would incur during their studies” [sic];
iii)he was the Chairman/Managing Director of the Company; and
iv)“[t]hat my Company – JOHNFIDEL GLOBAL CONCEPT LTD Bank Statement of Account balance stands as guaranty for the sponsor” [sic];
c)a certificate of incorporation of the Company issued by the Corporate Affairs Commission of Nigeria; and
d)the Memorandum of Association and Articles of Association of the Company which bore stamps bearing the words “Verification” and “Certified True Copy” and “Corporate Affairs Commission”.
On the face of the Memorandum of Association and Articles of Association are two stamps. Both stamps are signed although the signatories’ identities are not apparent. One stamp is dated 5 May, 2016 and reads “Corporate Affairs Commission Verification”, the other stamp reads “Corporate Affairs Commission Certified True Copy” and is undated.
On 7 November, 2016:
a)a departmental officer based at the Australian High Commission in Nairobi contacted the Nigerian Commission to verify the authenticity of the Memorandum and Articles of Association; and
b)the first respondent’s Department issued a request for further information to the applicants about their relationship to the source of funds.
The Nigerian Commission responded soon after the Department’s request, indicating that the Memorandum and Articles of Association documents were “not issued” by it.
On 17 November, 2016 and prior to a response from the applicants, the Department notified the applicants that an Australian High Commission officer in Nigeria had contacted the Nigerian Corporate Affairs Commission to verify the documents. The Nigerian Commission representative had purportedly advised that “the documents were not issued by it”. The Department informed the applicants that their applications may be refused on the basis that they may have given or caused to be given a bogus document in breach of Public Interest Criterion 4020 (PIC4020) and invited the applicants to comment within 28 days of receiving the notice.
On 22 December, 2016 the first applicant wrote to the first respondent’s Department explaining that the documents had been provided to her by her uncle, and had been issued by the Nigerian Commission to Johnfidel’s lawyers. She suggested that due to an error by both the Nigerian Commission and Johnfidel’s lawyers the documents may have not been recorded in the Nigerian Commission’s database. The purport of her letter was that she understood that they were genuine and were legal documents belonging to Johnfidel that had been issued by the Nigerian Commission.
Enclosed with the letter was:
a)a note from Johnfidel’s lawyer, Mr Friday Udom dated 21 December, 2016;
b)a copy of the documents dated 2011 (stamped “Extra Copy”); and
c)a Deed of Assignment dated 15 October, 2015.
The letter from Mr Udom explained that:
a)historically there were three shareholders of Johnfidel (one of whom was the first applicant’s sponsor). The other two shareholders agreed to sell their shareholding to the sponsor and two new incoming shareholders. To effect this in October, 2015 a Deed of Assignment was executed for the share transfers to occur;
b)after the Deed of Assignment was executed, Mr Udom attended on the Nigerian Commission with that document. While he was there, he dealt with a clerical officer who “issued me with the new [Company Memorandum/Articles]”. The clerical officer advised that a change in company details “will reflect on the [C]ommission’s database in about a fortnight”; and
c)the Commission forgot to record Johnfidel’s Memorandum and Articles of Association in its database and, because Johnfidel did not have any dealings which required the “validation” of that document, Mr Udom did not pick up on such an error.
The applicants asked the first respondent’s Department to re-verify the documents with the Nigerian Commission in three to four weeks to allow for the intervening Christmas holidays and for Johnfidel’s lawyer to correct the issue.
On 23 December, 2016 the first respondent’s Department sent another letter to the first applicant inviting her to comment on the information received by the Department from the Nigerian Commission about the Johnfidel Memorandum and Articles of Association. The first applicant again sent her letter requesting the first respondent’s Department to re-verify the documents with the Nigerian Commission in three to four weeks.
On 16 February, 2017 a delegate of the Minister refused the applicants’ visa applications finding, inter alia, that:
a)clause 500.217 in Schedule 2 of the Migration Regulations requires student visa applicants satisfy PIC4020 which relevantly provided that there be:
“no evidence before the Minister that the applicant has given, or caused to be given, to the Minister an officer, the Administrative Appeals 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 the application for the visa, or a visa the applicant held in the period of 12 months before the application was made.”
b)the Department “was concerned that the applicants had provided it a bogus document” because on 7 December, 2016 a Nigerian Commission representative informed the Department that the relevant documents were not issued by it;
c)the first applicant had given or caused to be given, bogus documentation and failed to meet PIC4020(1); and
d)there were no compelling or compassionate circumstances to otherwise justify the waiver of PIC4020(1) pursuant to PIC4020(4).
The refusal to grant the first applicant a visa resulted in the second and third applicants’ applications also failing as they rely on the first applicant’s application.
The first applicant lodged an application for review of the delegate’s decision on 9 March, 2017.
On 6 September, 2018 the applicants received an invitation to produce documents and attend a hearing of their application on 25 September, 2018. The first applicant attended that hearing by telephone and was accompanied by an agent.
On 17 and 18 September, 2018, the first applicant’s agent sent a number of “supporting documents” to the Tribunal. Many of the documents were relevant to whether the first applicant met other criteria for the subclass 500 visa. They included:
a)a letter from the Nigerian Commission that outlined that Johnfidel had been incorporated since 25 May, 2011 and the identity of the current directors and shareholders;
b)a statement from the first applicant entitled “Cause of Delay”;
c)an offer dated 10 February, 2015 from Senses Australia to employ the first applicant as a support worker; and
d)documents from the first applicant’s uncle including a letter addressed to the first respondent’s Department from Diamond Bank confirming Johnfidel had maintained an account with it since 14 February, 2013 and had capacity to sponsor the applicants. The letter advised that the first applicant’s uncle was the sole signatory on the account.
On 25 September, 2018 the applicants attended a hearing before the Tribunal. A transcript of that hearing has been adduced in evidence in this proceeding by the applicants.
After the hearing, the Tribunal delivered an oral decision affirming the delegate’s decision. The Tribunal’s view was that PIC4020(1) was not satisfied and, further, it was not satisfied that there were compassionate or compelling circumstances that were sufficient to invoke the PIC4020(4) waiver.
On 12 October, 2018 the Tribunal created a written record of the Tribunal’s decision. On 21 October, 2018, the applicants filed an application seeking judicial review of the Tribunal’s decision.
The grounds of review
The first ground of review is expressed in the following terms:
1. The decision of the Tribunal Member was affected by jurisdictional error and/or a legal error by in finding that the first Memorandum of Association and Articles of Association provided by the applicants (the Document) were false or misleading in a material particular, the Tribunal Member failed to take into account relevant evidence submitted by the applicant.
Particulars
(a) There is no evidence in the Tribunal’s decision record that the decision maker considered the following documents submitted by the applicants:
(i) the letter from the Corporate Affairs Commission of Nigeria dated 5 April 2017;
(ii) the Memorandum of Association and Articles of Association of Johnfidels Global Concept Limited dated 14 March 2011; and
(iii) the Deed of Assignment/Transfer of Shares between Chizelunwa Christopher, Chizelunwa John Kennedy, and Chizelunwa Fidelis Ifeanyi dated 15 October 2015;
(iv) the letter from Friday Nnana Udom, Esq dated 21 December 2016;
in determining whether the Document submitted was a document that was a bogus document or a false or misleading in a material particular, or at all.
(b) The aforementioned documents are relevant matters as they form part of the applicant’s explanation was to why the Document is not a false or misleading in a material particular.
The applicants submit that the documents particularised in this ground of review are relevant to their submissions that Johnfidel was a real company incorporated in Nigeria and that the reason the Nigerian Commission claimed it did not issue the documents was due to a mistake. There is no doubt that they were relevant in that way. They tended to show and were plainly given to the Tribunal for the purpose of establishing that Johnfidel was a genuine company. The first three documents provided some corroboration for the events spoken of by Mr Udom in his letter.
The applicants submit that the Tribunal did not take these documents into account because first, there was no mention of the documents by the Tribunal in its decision record and second, the Tribunal did not deal with the applicants contentions about these documents and the argument to which they were relevant in its reasons for decision. I will deal with each of these separately.
The applicants argue that the four particularised documents were not considered, properly or at all, because they were not mentioned by the Tribunal during the course of the Tribunal hearing. The applicants argue that because of the central relevance of the documents to the Tribunal’s decision they ought to have been mentioned and expressly considered in the Tribunal’s reasons.
As the first respondent submits, the starting point for the argument is to recognise that the applicants bear the onus of establishing that the material was overlooked: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67]; SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25].
Contrary to the applicants’ case, the transcript of the tribunal hearing demonstrates that the Tribunal was aware of and had regard to the documents now described as not having been considered by the Tribunal:
a)at pages 7 and 8 and then again at page 10 of the hearing transcript, the Tribunal, the fist applicant and the first applicant’s agent can be seen to be discussing the 5 April, 2017 letter. The significance of the Nigerian Commission’s letter of 5 April, 2017 was discussed by the Tribunal with the first applicant and her agent. The Tribunal made clear its view that the letter did not directly deal with why the Commission had initially indicated that the copy of the Memorandum and Articles of Association were not issued by it. The discourse at pages 7 and 8 in which the letter is considered ends with the following passage:
MS MUSHINWA: My former agent, she called - when they refused this - refused the visa, I have to - I was the person that made the application (indistinct) contact. So I went to - I have to look for an agent, to appeal. So according to her, she called Corporate Affairs office, Commission, in Nigeria, and they talk at length. That’s what she told me. That was when they (indistinct) gave her this letter, on 5 April 2017. It was (indistinct) conversation, they issued this letter to her.
MEMBER: Yes.
MS MUSHINWA: That was when they issued this letter to her. There’s a bit of a mistake there, which I can’t really say - I don’t (indistinct) and I can’t give information which I don’t have here. I don’t know what happened. And my uncle (indistinct) I know he is (indistinct) with documentation. So whatever they bring to him, that’s what - that’s what his lawyer provided. That wasn’t (indistinct).
MEMBER: Well, I hear what you say. However, the fact remains that when those documents were provided to the Corporate Affairs Commission, the Corporate Affairs Commission inspected them and said these documents are not genuine. Now, they said these documents were not issued by the Corporation so the fact that they then provide another document saying that this company was registered on 25 May 2011 does not change the fact that documents have been provided that the Commission says did not come out of the office of the Commission. So on the evidence before me I’ve got to say that it appears that the documents that were provided in support of your application were false or misleading in the material particulars and so therefore there is breach of 4020 and the role of the tribunal is to say, “Well, are there reasons that 4020 should be waived?” and, as I said, that can be waived if there are compassionate circumstances that affect the interest of Australia or an Australian citizen, permanent resident or an eligible New Zealand citizen and so my question to you, Ms Mushinwa, is are there circumstances that you believe should be taken into account?
b)at pages 6-7 of the hearing transcript, the Tribunal refers to the minutes of the company meeting which, it was said, led to the Deed of Assignment. The transcript reveals that the Tribunal had given some consideration to those minutes because it was concerned about what they recorded when the business transacted at the meeting as was compared to the time taken for the meeting.
c)At pages 11-13 of the hearing transcript, the Tribunal and the first applicant’s agent discuss the Deed of Assignment and the Memorandum of Association and the Articles of Association documents. The discourse makes plain that the Tribunal is aware of the documents and considers them to be of little assistance in the circumstances.
The factual assertions that underpin the applicants’ claims are not made out in the evidence. The documents were expressly referred to by the Tribunal.
Perhaps the only one that was not expressly referred to, was the letter from Mr Udom dated 21 December, 2016. But that there is no reference to that particular document, without more, does not provide a sufficient foundation for an assertion that a piece of evidence was overlooked: SZDXZ v Minister for Immigration and Citizenship (above) at [25]; Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [45]; Whittaker v Assistant Minister for Immigration and Border Protection (No 2) [2018] FCA 248 at [63]; Steed v Minister for Immigration and Multicultural and Ethnic Affairs (1981) 37 ALR 620 at 621.
In any event, the transcript of the hearing demonstrates that the Tribunal was aware of the letter and its contents. The letter provided a chronology of the circumstances leading to Mr Udom allegedly being “issued” with the Memorandum and Articles of Association found by the delegate to be bogus and sought to provide an explanation about why the Commission had provided the information to the Department that it did. Mr Udom was asserting that there was a “mistake” that had led to the allegedly bogus documents and the information from the Nigerian Commission.
As to the second aspect of this ground identified above, not only did the Tribunal refer to these documents but it also gave reasons explaining its view that the documents were not relevant to the issue it needed to determine. That issue is the issue identified by the Tribunal in the passage extracted above from page 8 of the transcript. The issue was not with the existence of the company Johnfidel, but with the use by the first applicant of documents that purported to be verified or certified by the Nigerian Commission but which the Commission said were not.
This ground of review does not grapple with the focus of the Tribunal’s attention – the use of documents that purport to be verified and certified by a government body but of which that body disavows any knowledge. In [18] of the Tribunal’s reasons the Tribunal referred to the first applicant’s claim that there could have been the “mistake” about which Mr Udom provides information. It specifically noted the first applicant’s assertion that “the documents were verified by the company lawyer”. That only served to heighten concern because the documents purported to be verified and certified by the Nigerian Commission, not the company lawyer. Thus, even if the explanation was accepted, it demonstrated that the documents were false in a material particular – they were not verified or certified by the Nigerian Commission as the stamps on them purported to indicate.
The applicants submit that the documents were “accidently or mistakenly claimed by the Nigerian Commission to be misleading or deceptive, and they had not intentionally submitted a misleading or deceptive document”. The difficulty with this submission, however, is that intention to mislead, or knowledge of the falsity of the documents is irrelevant: Trivedi v Minister for Immigration and Border Protection (2014) FCAFC 42 at [32] to [33]. In any event, the explanation from Mr Udom that the documents were signed by the company lawyer is inconsistent with the Nigerian Commission having made a mistake.
Ground of review 1A is expressed in the following terms:
1A. The decision of the Tribunal Member was affected by jurisdictional error in that it failed to accord the applicants procedural fairness by unreasonably refusing the applicants’ request for an adjournment thereby denying them an adequate opportunity to provide an explanation and evidence for the allegedly bogus Document.
There is a related ground 1B that is promoted in the applicants’ written submissions that does not appear in the applicants’ amended application for review. It is in the following terms:
Ground 1B: the learned Member erred by relying on the department’s conclusion that the document was bogus and failing to do an independent assessment
I will deal with these two grounds together.
As to ground 1A, the principles are not in dispute. The Tribunal has a discretion to “adjourn the review from time to time”: s.363(1)(b) of the Migration Act 1958 (Cth). Failure to accede to a reasonable request for an adjournment can constitute procedural unfairness and jurisdictional error: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 per Gaudron and Gummow JJ at [40]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [29], [63] and [88] amongst other authorities. However, a Court should be reluctant to interfere with decisions of the Tribunal to refuse to grant an adjournment: DZX16 v Minister for Immigration and Border Protection [2018] FCA 850 at [61].
The test for unreasonableness has been described as “stringent” and its scope “extremely confined”: Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408 at [11], [52]. The critical question in all cases of alleged unreasonableness is whether the decision was one to which no other reasonable repository of power could arrive: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [21]. That question must be analysed against the backdrop of the relevant statutory power in question. But as long as the decision-maker’s decision meets the “minimum standard” expected of him or her, no unreasonableness will follow. In the context of procedural decisions such as in the case of an adjournment, the legal standard expected of a decision-maker is less intense: Minister for Immigration and Border Protection v Stretton (above).
Where the decision-maker has provided reasons for his or her decision, the starting point for the Court’s analysis of the reasonableness of the decision is to consider whether an evident and intelligible justification for the decision was provided. Where such a justification is provided, it will be a rare and unlikely case where unreasonableness is found to exist: SZVFW (above) at [84]; Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 at [64]. That clearer reasons might have been provided does not mean that an evident and intelligible justification is absent: Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640 at [53]. Complaints about the sufficiency of the justification identified by a Tribunal for its decision rather than the presence or absence of an evident or intelligible justification for a Tribunal’s decision are unlikely to succeed: MZAJG v Minister for Immigration and Border Protection [2016] FCA 1045 at [20].
If an evident and intelligible justification has been provided, the first applicant is left with establishing unreasonableness on a purely outcome or result focused basis. That is to say, the applicants must establish that the result was so unreasonable that it “could not have been reached if proper reasoning had been applied in the exercise of the statutory power in the particular circumstances”: SZVFW (above) at [96]. Whether a decision was unreasonable is assessed by reference to the facts and materials before the decision-maker: Islam v Minister for Immigration and Border Protection [2016] FCA 839 at [43].
Subsection 363(1)(b) of the Migration Act is an aid to the performance of the Tribunal’s review function: Minister and Immigration and Border Protection v Singh (2014) 231 FCR 437 at [49], [50] and [52]. Its exercise is linked to the Tribunal’s obligation to provide an applicant with a meaningful opportunity or a “real chance” to appear and present evidence and argument: Li (above) at [61]; Singh (above) at [51]. Further, the Tribunal’s power to adjourn a review hearing is broad and unfettered. What matters the Tribunal considers, and the weight to be afforded to such matters, is entirely a matter for it.
The applicants argue that in the lead up to and initially during the Tribunal hearing, their submissions were made on the misunderstanding that they had to establish Johnfidel was a real company capable of supporting the first applicant whilst she remained in Australia on a student visa. They also thought that they had to provide a reason why they had not responded to the Department’s invitation dated 23 December, 2016 to comment on the Memorandum and Articles of Association.
However, I reject that submission. The transcript of the Tribunal hearing does not bear out the proposition that the applicants thought that they had to establish Johnfidel was a real company. The transcript identifies a focus upon the unverified documents said to have been issued by the Nigerian Commission. The affidavit of the first applicant does not advance the issue. She does not swear to any misunderstanding. Rather, she swears to issues about the Nigerian Commission confirming that the documents were not issued by it.
The balance of the applicants’ submissions also proceed on a misunderstanding of the hearing that took place with the Tribunal. In this respect, ground 1B (also not the subject of express pleading in the applicants’ amended application for review) is connected to the present argument. Both arguments proceed on the basis that part-way through the Tribunal hearing the member found that the Memorandum and Articles of Association were not genuine and that “there was nothing to contradict or attempts to correct the statement that the Nigerian Commission had had claimed the Memorandum and Articles of Association were not genuine documents”. But the Tribunal made no such finding at the point at which the applicants suggest that finding was made. In fact what occurred was that the Tribunal recited parts of the delegate’s decision in an effort to ensure that the applicants understood what it was that was being reviewed. At page three of the transcript the member invited the first applicant to “tell me in your words why you think they refused your application.”. The first applicant attempted to do that, but then proceeded to repeat her case as set out in a statement that she had made. The Tribunal attempted to redirect her to her understanding of the review by reading from the delegate’s decision. It was in the course of that exercise that the Tribunal said at T5:
So, based on the evidence before me, I find that you have given or caused to be given bogus documentation, and therefore not satisfied public interest criterion 4020. It goes on to say that when someone is (indistinct) not to meet 4030, the requirement may be waived if there are compelling 10 circumstances that affect the 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.
The Tribunal was not making any findings of its own, but merely reciting the decision under review in an effort to make sure that the first applicant and her agent understood what was going on.
The applicants further submit that once the first applicant and her agent understood that the Tribunal was not seeking submissions about whether Johnfidel was a real company, but rather why the Nigerian Commission had claimed the documents “were not issued by it”, they sought a brief adjournment to “obtain evidence to directly support their submissions that there had been a mistake when the Nigerian Commission claimed it did not issue the Memorandum and Articles of Association”. But that too, is a mischaracterisation of what occurred during the Tribunal hearing. After considerable discussion about the responses received from the Nigerian Commission, the following exchange took place at T10 (errors in the original):
MEMBER: The evidence before me indicates that the documents that were provided in support of your application, I hear what you say, they were provided to your sponsor from his lawyer however when those documents were sent for purification (sil. verification) with the Corporate Affairs Nigerian Commission of Nigeria, the Corporation Affairs Nigerian Commission representative said that these documents were not issues by the Nigerian Commission. That means that the documents provided were false or misleading and therefore that creates a breach of condition 4020. I am satisfied that there is a breach of that condition. When there is a breach, what I need to consider then is are there circumstances that mean we should waive that condition and the visa should be granted anyway and so I ask you whether there are conditions which you believe we should waive the need to satisfy public interest criteria 4020?
MR GO: Member, can I say something?
MEMBER: Yes of course, Mr Go.
MR GO: When the (indistinct) agents rang the Corporate Affairs in Nigeria, they send this copy. (Indistinct) and give it to her to mature. So are we able to take leave - maybe give me time to contact the Corporate Affairs direct and see what I can do before you give a decision for the Tribunal?
MEMBER: The answer to that, Mr Go, is no. This is a decision which was made back in February last year so there has been a substantial amount of notice. I mean, a time that has been had for providing an answer or reasons for this and a hearing invitation notice for this was sent out back on 6 September so there’s been, I think, ample time to provide the evidence required and what are we going to provide? I mean, the situation is that the evidence before me is: we’ve been given documents; the documents are sent to the Corporate Affairs Nigerian Commission; the Corporate Affairs Nigerian Commission look at the documents and they come back the a verification report that says, “These documents were ‘not’ issued by the Nigerian Commission.” I’m not sure - - - ?---(Indistinct).
I’m not sure what you can say - can we, you know, get some more time to do whatever, I mean.
MR GO: Tribunal, I think they were talking that the document they were talking about was (indistinct) Corporation document - - -
The applicants argue that the Tribunal’s refusal of the adjournment requests was not informed by any consideration other than the asserted sufficiency of the opportunities provided to the applicants “to respond to the application”. They argue that the further evidence they sought to put before the Tribunal was a direct explanation from the Nigerian Commission. They further argue that the member’s comments make clear that the Tribunal’s decision would turn largely on whether there was evidence that there was a mistake. The applicants say that the first respondent had indicated they wished to place material before the Tribunal to explain the mistake. In those circumstances, it is said that the decision to refuse the adjournment was unreasonable. Moreover, the applicants submit that the Tribunal’s intention to “make a decision on the application before it” during the Tribunal hearing and after the applicants had requested an opportunity to provide further evidence to address the central issue before the member was not reasonable.
But none of these arguments can be accepted. There was no initial misapprehension about the issue to be addressed. The legitimacy of the Johnfidel was not in issue. It was not suggested in the delegate’s decision record that the company was bogus. Those reasons focussed on the Memorandum and Articles of Association and what was found to be a bogus reference to that document (or those documents) having been verified by the Nigerian Commission as was purportedly evidenced by the stamps upon them. That was always the focus of the delegate’s determination. So too in the Tribunal. The applicants appreciated that in my view, given the attempts to explain the verification on the documents as having been made by the company’s lawyer.
Given that the issue for the delegate, and therefore at least one of the issues arising on the review, was the provenance of the documents given over by the first applicant in support of her application and given that the first respondent had invited the applicants to provide information about the Nigerian Commission’s advices about those documents on at least two occasions at the end of 2016, the Tribunal decided to refuse another adjournment. The purpose of the adjournment that was sought by Mr Go on behalf of the applicants was to give him “more time to contact the Nigerian Commission and see what he can do”. That is to say, there was no suggestion that anything of assistance would be obtained if the adjournment was granted. The Tribunal expressly asked the first applicant’s agent what he was going to do and what evidence he was going to adduce. There was no responsive or intelligible answer. At best it was a fishing expedition. The applicants had had a substantial period of time prior to the Tribunal hearing to contact the Nigerian Commission and present evidence dealing with the information provided by the Nigerian Commission to the Department and which formed the critical issue before the delegate and thus a critical issue on the review.
I am satisfied and I find that the Tribunal provided an evident and intelligible justification for its decision to refuse the adjournment. It did so by considering the sufficiency of the opportunity that the applicants already had been given to present their case and considering other matters which bore on the exercise of the discretion. To succeed then, the applicants must establish unreasonableness in the outcome itself. In the face of the Tribunal’s explanation for the refusal of the adjournment there is no basis for a contention that the Tribunal’s decision was a decision to which no other reasonable decision-maker could have arrived.
Grounds 1A and the proposed ground 1B do not reveal any jurisdictional error.
The second ground of review is expressed in the following terms:
2. The decision of the Tribunal Member was affected by jurisdictional error and/or legal error by failing to consider a relevant matter by finding that the Document was fraudulent or misleading in breach of natural justice.
Particulars
(a) The Tribunal Member failed to have proper regard to the merits of the Application’s submissions and explanation that the Document was not false or misleading.
In their written submissions, the applicants contend that the Tribunal erred when it:
a)failed to consider the material submitted by them and in particular an offer of employment from Senses Australia to the first applicant dated 10 February, 2015; and
b)failed to consider the applicants’ submissions and explanation that the Memorandum and Articles of Association were not false or misleading.
It will be immediately appreciated that the applicants’ submissions extend beyond the terms of the amended application for review and incorporate argument directed to the way in which the Tribunal dealt with evidence of an offer of employment made to the first applicant. However, the first respondent took no issue with that and advanced arguments designed to meet those made by the applicants. On that basis, I will consider the expanded grounds.
To understand the first of these grounds, it is necessary to understand the context in which the applicants make their submissions. Public Interest Criteria 4020(4) provides as follows:
(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.
A copy of the relevant letter of offer was sent to the Tribunal on 17 September, 2018 along with a number of other documents. Relevantly, the letter records an offer made to the first applicant on 10 February 2015 to be employed by an entity described as “Senses Australia” as a “Support Worker” on a “flexible, part-time basis”. That role concerned tasks with respect to “people you are supporting”.
The applicants argue that the letter of offer was evidence that the first applicant was employed by Senses Australia, an Australian employer, to provide disability support services in Western Australia. They further argue that the Tribunal’s finding that “there is no evidence before the Tribunal that there are compelling or compassionate circumstances that meet the definition that would lead to the waiver of the criteria” “fails to take into account the offer from Senses Australia”.
The applicants argue that a refusal of the visa applications would result in the sudden termination of the first applicant’s employment as a Support Worker. The first applicant’s termination would impact “the ability to provide disability support services to vulnerable and disabled Australians” and, thereby, qualified the applicants for the PIC 4020(4)(b) waiver. Thus, the applicants argue that there was “prima facie evidence before the Tribunal that indicated that refusal of the applications would affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident”.
Assuming for the purposes of these reasons that the first applicant remained employed by Senses Australia at the time of the Tribunal hearing and that the first applicant’s employer provided disability support services to vulnerable and disabled Australians and the refusal of the visa application would result in sudden termination of the first applicant’s employment, there was no evidence that the termination of the first applicant’s employment would impact the ability for Australian citizens/permanent residents to receive disability support services. There was no evidence to support the proposition that the termination of the first applicant’s employment with Senses Australia would impact “the ability to provide disability support services to vulnerable and disabled Australians”. There was no evidence that it was only the first applicant who could do what it was that she was employed to do. Nor was there was any evidence that Senses Australia provided disability support services to “vulnerable and disabled Australians” or that it had no other options for the provision of care to those to whom it provided such services if it could not employ the first applicant. There was no warrant in the circumstances for the Tribunal to draw inferences consistent with those matters.
To the extent that the Tribunal’s reasons might be seen as suggesting that it disregarded the letter of offer because it did not evidence any compelling or compassionate circumstances, the Tribunal made no error in so acting. The letter of offer on its own and without more, did not provide evidence of compelling or compassionate circumstances as the applicants argue. The Tribunal was entitled to disregard it. It was not bound to take it into account pursuant to s.359(1) of the Act as the applicants argue.
However, and notwithstanding those matters, I accept the first respondent’s argument that when the Tribunal recorded that “there is no evidence before the Tribunal that there are compelling or compassionate circumstances that meet the definition that would lead to the waiver of the criteria”, the Tribunal was clearly indicating its view that, on the evidence before it, there was no evidence sufficient to meet the PIC4020(4)(b) criteria.
This aspect of ground 2 does not reveal jurisdictional error.
The second aspect of this ground concerns the company documents. The applicants gave to the Tribunal evidence to verify that Johnfidel was a company which genuinely existed and an explanation as to the anomalous circumstances concerning the purportedly verified Memorandum and Articles of Association. The applicants argue that the Tribunal’s reasons do not grapple with the applicants’ submissions that the Memorandum and Articles of Association were not bogus but the result of an administrative mistake and a re-check of the Nigerian Commission’s records would resolve the mistake.
The Tribunal’s reasons demonstrate that it was alive to the applicants’ contention that the information from the Nigerian Commission was mistaken:
18. You say those documents were provided to your uncle by his lawyer, and you have no idea of how it could have happened, and you claim there could have been a mistake.
19. Your agent Mr Goh says that the documents were verified by the company lawyer.
20. In fact the Tribunal notes the stamps on the stamps (sic) on the documents indicate they have been verified by the Corporate Affairs Nigerian Commission.
21. However, the facts remain that when those documents were sent to the Corporate Affairs Nigerian Commission for verification the report was that the documents were not provided by the Corporate Affairs Nigerian Commission.
The applicants argue that the language used by the Tribunal in those paragraphs, and particularly [21] illustrates that the Tribunal did not have any regard to the information the applicants provided as an explanation. But I cannot accept that argument. The Tribunal expressly refers to the contention that there had been a mistake in the preceding paragraphs and records the explanation that the documents were verified by the company’s lawyer. The Tribunal also records the evidence inconsistent with that, namely that the stamps on the documents themselves purport to be stamps from the Nigerian Commission.
I reject the applicants’ submission that the Tribunal simply adopted the conclusion formed by the first respondent’s delegate that the Memorandum and Articles of Association were not genuine. The Tribunal’s reasons reveal that it gave the matter independent consideration. The Tribunal was entitled to resolve the matter in the way that it did. It did not accept the mistake assertion.
Moreover, the Tribunal did not consider that the evidence the first applicant had put forward showing that there had been a mistake was sufficient to overcome its concerns associated with the information the Nigerian Commission provided to the Department that the Company Memorandum and Articles of Association were not issued by it. I accept the first respondent’s submission that such an outcome was hardly surprising given the Tribunal expressed similar sentiments at the hearing and, moreover, being able to provide sufficient evidence to overcome the force of the information provided by the Nigerian Commission was very difficult given the low bar that existed under PIC4020(1).
This aspect of the second ground of review cannot succeed. Ground 2 as a whole or in its constituent parts does not reveal jurisdictional error.
The third ground of review is expressed in the following terms:
3. The decision of the Tribunal Member was affected by a legal error in that the Tribunal failed to give adequate reasons for concluding that the Document was false or misleading in a material particular in circumstances where the applicants had submitted an explanation and evidence regarding the purported false or misleading nature of the Document.
This ground was not pressed in the applicants’ submissions separately but was dealt with as part of ground 2. My reasons set out above in respect of ground 2 are sufficient to deal with it.
The fourth ground of review is expressed in the following terms:
4. The decision of the Tribunal Member was affected by jurisdictional error and/or legal error by reason that the Tribunal member asked itself the wrong question and/or failed to consider a relevant matter by accepting that the applicants provided false or misleading information in relation to her visa application.
Particulars
(a) The Tribunal Member found that the Document contained a stamp that it had been verified by the Corporate Affairs Nigerian Commission.
(b) The Department had received a report that the Document had not been issued by the Corporate Affairs Nigerian Commission.
(c) The Tribunal Member erred by concluding that because the Document purported to have been verified by the Corporate Affairs Nigerian Commission then the Document also purported to be one issued by the Corporate Affairs Nigerian Commission.
(d) The conclusion that the Document was fraudulent or misleading was based on an assumption about the processes of the Corporate Affairs Nigerian Commission which has not been recorded in the Tribunal Member’s decision.
The first applicant argues that the Tribunal’s determination that the documents were misleading or deceptive in a material particular was based on findings that the stamps on the documents indicated they had been verified by the Nigerian Commission and that when the Memorandum and Articles of Association were sent to the Nigerian Commission for verification the report was that the documents were not provided by the Nigerian Commission. That is to say, the applicants argue the Tribunal made two separate but related findings – one to the effect that the stamps on the document indicated that the documents had been issued by the Nigerian Commission and the second to the effect that, in fact, they had not been issued by the Nigerian Commission. Both findings were critical to the Tribunal’s conclusion.
As to the second finding, the Tribunal was correct to make that finding. There was evidence to that effect from the Nigerian Commission that the relevant company documents were “not issued by” it (see the Tribunal’s reasons at [9], [10] and [17]).
As to the first finding, the Tribunal noted that the stamps on the relevant company documents indicated that the documents had been verified by the Nigerian Commission (see the Tribunal’s reasons at [20]). That finding was open on the evidence having regard to the text of the stamps on the documents. However, the Tribunal then noted that when the company Memorandum and Articles of Association was sent to the Nigerian Commission for verification by an officer of the first respondent’s department for the purposes of the applicants’ visa application, the Nigerian Commission indicated that the document “was not provided by the Nigerian Commission”. That finding was also open. In my view there is no material difference between the use of the phrase “not provided by the Nigerian Commission” and the phrase “not issued by the Nigerian Commission”.
The applicants argue that the Tribunal has erred in making the first findings. They argue that the stamps serve to “verify” the documents. According to the applicants’ argument, that a party purports to “verify” a document does not mean that they also purport to “issue” that same document. The applicants argue that the only evidence before the Tribunal was that the Nigerian Commission claimed it did not “issue” the Memorandum and Articles of Association. The stamps on the documents which did nothing more than purport to verify the Memorandum and Articles of Association, did not mean that the Nigerian Commission issued those Memorandum and Articles of Association as the Tribunal found. The applicants point out that there was also no evidence as to the processes of the Nigerian Commission and whether a verification by the Nigerian Commission amounts to the Nigerian Commission issuing a Document. The applicants argue that it is implicit from the Tribunal’s reasons that its finding that the Nigerian Commission had not issued the Memorandum and Articles of Association meant the applicants or a party acting on their behalf had falsified the Memorandum and Articles of Association or Nigerian Commission stamps.
But the finding by the Tribunal was not that the Company Memorandum and Articles of Association were not issued by the Nigerian Commission, but rather that the verified copies were not issued by the Nigerian Commission. That finding was plainly open to the Tribunal. The applicants’ argument seeks to draw a dichotomy between the company’s Memorandum and Articles of Association and the verified copies of those documents. But the evidence is that it was the verified copies of the Memorandum and Articles of Association that were disavowed by the Nigerian Commission.
Alternatively, as the first respondent submits, the Tribunal’s use of the words “the facts remain” in [21] is an indication that, notwithstanding that on their face the documents had been “verified” (whatever that might mean or entail), the Tribunal nonetheless had received information that the documents had not been “issued by the Nigerian Commission”. The Tribunal was expressing that the critical matter upon which it relied was the information that had been provided by the Nigerian Commission to the Department. It was entitled to act upon that material and, by implication at least, reject the explanations provided by the applicants and the company lawyers.
The two findings that I have identified led the Tribunal to find that the applicants provided a document that was false or misleading in a material particular, and therefore the first applicant did not satisfy cl.500.217. That finding was plainly open on the material before the Tribunal.
This ground of review does not establish that the decision of the Tribunal was affected by jurisdictional error or other error.
Conclusion
The applicants do not establish that the Tribunal’s decision is attended by jurisdictional error. The application must be dismissed with costs.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 17 July, 2019.
Date: 17 July, 2019
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