Palikhe v The Commonwealth of Australia
[2014] FCCA 1875
•29 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PALIKHE v THE COMMONWEALTH OF AUSTRALIA & ORS | [2014] FCCA 1875 |
| Catchwords: MIGRATION – Migration Review Tribunal – whether visa application was affected by fraud– application dismissed. |
| Legislation: Migration Act 1958 |
| Batra v Minister for Immigration and Citizenship [2013] FCA 274; (2013) 212 FCR 84 Dhillon v Minister for Immigration and Border Protection [2014] FCCA 552 Singh v Minister for Immigration and Citizenship [2013] FCA 166 |
| Applicant: | RAKISH PALIKHE |
| First Respondent: Second Respondent: Third Respondent: Fourth Respondent: | THE COMMONWEALTH OF AUSTRALIA DIRECTOR, TRADES RECOGNITION AUSTRALIA GOVERNANCE MIGRATION REVIEW TRIBUNAL MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | MLG 679 of 2014 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 25 July 2014 |
| Date of Last Submission: | 25 July 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 29 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Costello |
| Solicitors for the Applicant: | Dagama Pereira & Associates |
| Counsel for the First, Second and Fourth Respondents: | Mr Knowles |
| Solicitors for the First, Second and Fourth Respondents: | Australian Government Solicitor |
ORDERS
(AS CORRECTED)
The application filed 5 February 2014 and the amended application filed 19 May 2014 be dismissed.
The Applicant pay the
First, Second andFourth Respondent’s costs fixed in the sum of $10,436.60.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 679 of 2014
| RAKISH PALIKHE |
Applicant
And
| THE COMMONWEALTH OF AUSTRALIA |
First Respondent
| DIRECTOR, TRADES RECOGNITION AUSTRALIA GOVERNANCE |
Second Respondent
| MIGRATION REVIEW TRIBUNAL |
Third Respondent
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Fourth Respondent
REASONS FOR JUDGMENT
The applicant seeks orders with respect to a pending Migration Review Tribunal hearing on his application for a subclass 485 (Temporary Graduate) Skilled (Provisional) (Class VC) visa. The Tribunal has deferred further consideration of the matter pending the outcome of these proceedings.
These proceedings were commenced in the Federal Court of Australia. Thereafter, the Tribunal has refrained from making a decision (although having completed the hearing) pending a determination of the proceedings. On 3 April 2014, the Federal Court ordered that the proceedings be transferred to the Federal Circuit Court, where they were ultimately heard before me.
The applicant relies upon an amended application, filed 19 May 2014, seeking a raft of orders as follows:
1. A declaration that the TRA’s purported assessment dated 1 April 2009 is ultra vires because it is vitiated by fraud.
2. A declaration that the TRA’s 9 July 2010 purported revocation of the earlier skills assessment is ultra vires because the TRA lacked power to revoke its earlier assessment.
3. A declaration that the TRA’s 9 July 2010 purported revocation is ultra vires because it purported to revoke an ultra vires assessment dated 1 April 2009.
4. A declaration that the applicant did not give or cause to be given a bogus document or information that was false or misleading in a material particular to an assessing authority because the assessing authority lacked power at the time the applicant purportedly gave the bogus document.
5. A declaration that the applicant did not give or cause to be given to TRA or DIBP a bogus document or information that was false or misleading because any such giving was vitiated by fraud.
6. An order in the nature of certiorari to quash the TRA’s purported assessment dated 1 April 2009 on the basis that it was ultra vires because it is vitiated by fraud.
7. An order in the nature of certiorari to quash the TRA’s 9 July 2010 purported revocation of the skills assessment dated 1 April 2009 on the basis that it was ultra vires because it was vitiated by fraud.
8. A declaration that evidence obtained under or derived from the search warrant carried out under s.3E of the Crimes Act 1914 (Cth) (“Crimes Act”) is not admissible to the Migration Review Tribunal because its admission would be a breach of s.3ZQU(1) of the Crimes Act.
9. An order in the nature of certiorari to quash the TRA’s 9 July 2010 purported revocation of first skills assessment dated 1 April 2009 on the basis that it was ultra vires because it relied upon information shared in breach of the Crimes Act.
10. An injunction directing the Third Respondent from proceeding or further proceeding in reliance on:
a. the TRA’s purported assessment dated 1 April 2009; and
b. the TRA’s purported revocation of the first TRA assessment dated 9 July 2010; and
c. the information obtained under or derived from the search warrant carried out under s.3E of the Crimes Act 1914 (Cth) (“Crimes Act”).
11. Costs.
The applicant is a citizen of Nepal. On 24 August 2009, he applied for a Skilled visa. That visa application was lodged on his behalf by a migration agent. The visa application was supported by a skills assessment from Trades Recognition Australia (TRA), in order to fulfil one of the conditions for the grant of such a visa.
In order to obtain the skills certificate from the trade recognition authority, a work reference was supplied on behalf of the applicant. On 18 March 2009, this was done by his former migration agent, relying upon a reference by Mr Amarante. The reference was a fraud, and Mr Amarante subsequently pleaded guilty to the manufacture and sale of work references in criminal proceedings in the County Court of Victoria on 4 November 2011.
Prior to the discovery of Mr Amarante’s frauds, the TRA issued a positive skills assessment for the applicant on 1 April 2009, relying upon the Amarante work reference.
On 25 February 2010, the TRA wrote to the applicant advising of an investigation being undertaken which had revealed that the employment statement relied upon by him to obtain his skills assessment may not be genuine. The TRA proposed to substitute a new decision that the applicant was unsuccessful in obtaining a positive skills assessment.
On 9 July 2010, the TRA withdrew its earlier decision and, on 4 August 2010, issued a second positive skills assessment, based upon a genuine work reference that the applicant had provided to the TRA in the intervening period. The second skills assessment remains in force.
When considering the visa application, the delegate gave the applicant notice that the delegate was considering whether or not the first skills assessment (generated by the TRA based upon the fraudulent reference) was a “bogus document” on the basis that it was obtained because of a false or misleading statement. Ultimately, the delegate did determine that it was a ‘bogus document’ and that as the applicant did not satisfy the requirements of PIC 4020, he therefore did not satisfy the requirements for the visa.
On 7 September 2012, the applicant applied to the MRT for a review of the delegate’s decision. Two days later, he applied under the Freedom of Information Act 1982 for all documents in his name, including the investigation file. The Department provided various documents on 18 October 2012. On 23 January 2014, the Tribunal conducted a hearing with the applicant (who appeared with his legal representative), a transcript of which has been placed before this Court.
The term “bogus document” is defined in regulation 1.03 of the Migration Regulations 1994 as having the same meaning as it has in s.97 of the Migration Act 1958. Section 97 defines the term as:
“bogus document”, in relation to a person, means a document that the Minister reasonable 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.
The relevant part of the PIC 4020 provides:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) …
(3) …
(4) The Minister may waive the requirements of any or all paragraphs (1) (a) or (b) … if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify granting the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
A useful summary of the evidence given before the Tribunal is set out at paragraph 11 of the fourth respondent’s outline where the respondent says:
11. On 23 January 2014, the Tribunal conducted a hearing. At the hearing, the applicant gave evidence that:
11.1. he had asked his former representative, Mr Raj Kandel, to apply to TRA for a skills assessment;
11.2. the applicant had signed a blank skills assessment application form and given it to Mr Kandel;
11.3. Mr Kandel had completed the other details in this application form;
11.4. the applicant had not been aware that some of the information which Mr Kandel had included in this application form was false;
11.5 TRA had subsequently issued the skills assessment;
11.6. the skills assessment was based on, among other things, information that the applicant had worked at L’Aspromonte Restaurant as a cook;
11.7. this information was false;
11.8. Mr Kandel had subsequently given the applicant a copy of the skills assessment;
11.9. the applicant had then engaged a migration agent, Ms Reeta Mittal;
11.10. at this time, he had given Ms Mittal a copy of the skills assessment;
11.11. the applicant had asked Ms Mittal to make a skilled visa application on his behalf and, when she made that application, he was aware that she had done so; and
11.12. he had understood, around this time, that Ms Mittal had provided a copy of the skills assessment to the Department of Immigration and Citizenship (as it then was) (the “Department”).
Ground 1
Ground 1 is in the following terms:
1. The TRA denied procedural fairness or failed to apply correct legal principles, in that the application which is the subject of the decision made on 24 August 2009 was invalid, as it was lodged without the plaintiff’s authority.
PARTICULARS
(a) The applicant gave his former migration agent, Mr. Raj Kandel express instructions to make to apply to TRA for a skills assessment based on work experience from Melbourne Wine Room.
(b) Outside of the scope of authority, Mr. Raj Kandel made an application for the TRA skills assessment supplying a manufactured work experience reference from L’Aspromonte Restaurant.
(c) Further particulars will be provided prior to trial.
This ground appears to be related to the relief sought in order 1, that is:
1. A declaration that the TRA’s purported assessment dated 1 April 2009 is ultra vires because it is vitiated by fraud.
The applicant’s counsel, in written submissions, argues that the application made to the TRA by the applicant’s former migration agent was outside of the scope of authority given to him in that he provided the TRA with a work reference from Amarante, and that as such, the application to the TRA is alleged to be invalid and thus there was nothing upon which the TRA could base a finding.
The question of the scope of the authority of the migration agent is presently the subject of the proceedings before the MRT. The precise nature of the instructions that the applicant gave to his advisor with respect to making an application to the TRA is a matter upon which the Tribunal will make findings of fact. In any event, however, it appears that the issue before the Tribunal at present is whether or not the first skills assessment was provided to support the visa application, and if so, whether that document was a “bogus document” within the meaning of the Act and the Regulations.
Most importantly, on the facts, the determination by the TRA to withdraw its first skills assessment means that that skills assessment does not remain in force. Of course the fact that it does not have effect at law as a ‘skills assessment’ does not alter the factual reality that it was sought and a copy may have been relied upon. The very nature of most ‘bogus documents’ is that they have no legal effect, which is why they are bogus, but their existence, provenance and use are often relevant factual matters.
Effectively, the applicant is seeking to have this court make new findings of fact with respect to the extent of the applicant’s authority to his migration agent for the purpose of making an application to the TRA, rather than allowing the Tribunal to make its own finding of fact. It is not appropriate for this Court to embark upon a trial of questions of fact for the purpose of making declarations as to factual issues that form part of the factual matrix that must be determined by the Tribunal.
In these circumstances, I am not persuaded that the applicant has made out ground 1.
Grounds 2 and 3
These grounds are framed as follows:
2. The purported delegation of power to the TRA under reg. 2.26B of the Migration Regulations 1994 (Cth) was invalid because the Fourth Respondent could not make an instrument unless the person or body had been approved in writing as the relevant assessing authority either by the Education or Employment Minister. In the absence of written approvals, the instrument is invalid and the decision was also invalid and of no effect.
PARTICULARS
(a) The necessary approval and specifications have been given in Legislative instrument IMMI 11/068, which commenced on 1 October 2011.
(b) Section 12 of the Legislative Instrument Act 2003 (Cth) does not retrospectively validate the skills assessment carried out under an invalid instrument.
(c) At the time of the decision, the TRA had not been so appointed.
(d) The TRA had not been properly appointed as a relevant assessment authority at the time the applicant’s former migration agent provided it with the unauthorised application.
3. Further and in the alternative, any purported exercise of power under reg.2.26B of the Regulations was invalid because the TRA had no authority to carry out any skills assessment, nor did it have the authority to set a skills standard applicable to the occupation of “Cook” and it is not a relevant assessment authority.
PARTICULARS
(a) The TRA had not properly set a skills standard applicable to the occupation of “Cook”.
(b) The decision was not effective as a skills assessment for the purpose for which it was made by the TRA as the 900 hours of work experience as a standard precondition for accreditation was a standard set by the TRA, which it was not empowered to do.
It transpires that, at the time that the first skills assessment was undertaken by the TRA, they did not technically have authority to undertake a skills assessment or set the relevant standards that it had: see, generally, Batra v Minister for Immigration and Citizenship [2013] FCA 274; (2013) 212 FCR 84 per Murphy J at 55.
Since then, IMMI 11/068 has been promulgated which retrospectively resolves the apparent lack of technical power on the part of the TRA. In Singh v Minister for Immigration and Citizenship [2013] FCA 166, the Federal Court said:
28. In relation to Mr Singh’s submission concerning the decision of the Federal Magistrate’s Court in Singh, I am not persuaded that – despite some similarities in facts - that case is helpful in the proceeding before me. In summary, the applicant in Singh had applied for a subclass 485 Skilled Graduate (Temporary) (Class VC) visa on 7 July 2009, had nominated his occupation as cook, and had obtained a successful skills assessment for the occupation of cook from Trades Recognition Australia on 28 September 2009. The applicant’s visa application was refused by the Minister on 31 August 2010. On 31 August 2011 the Tribunal affirmed the decision of the delegate on the basis that, in summary:
- the applicant had provided information on the visa application which was false and misleading in a material particular; and
- the Tribunal concluded that the applicant had not been employed at two restaurants where he had claimed to work as a cook (and which was therefore information relating to his employment, which was false or misleading in a material particular).
29. Before the Federal Magistrate the applicant in Singh claimed, inter alia, that there was no evidence that Trades Recognition Australia had been approved in writing to be the relevant assessing authority for the occupation of cook, the Tribunal erred in determining that Trades Recognition Australia was such an authority, and without a validly approved and specified relevant assessing authority for the occupation of cook the applicant could not possibly meet the visa requirements.
30. There appeared to be evidence before his Honour in Singh that false and misleading information had been provided by the applicant. However, critically, Federal Magistrate Driver observed at [65] as follows:
[65] At the time of the Tribunal decision, as is conceded by the Minister, TRA had no relevant function as it had not been approved as an assessing authority by the Education Minister or the Employment Minister. It had been purportedly specified as a relevant assessing authority by the Minister for Immigration in instrument IMMI 11/034 but that specification was invalid by reason of regulation 2.26B(1A). The position was purportedly rectified by the Minister for Tertiary Education, Skills, Jobs and Workplace Relations by instrument of approval dated 15 September 2011 and by the Minister for Immigration by instrument dated 28 September 2011. At the time of application for the visa sought by Mr Singh, the Regulations required, among other things, that the Minister be satisfied that the applicant has applied for an assessment of the applicant’s skills or the nominated skilled occupation by a relevant assessing authority. The Regulations further required that, at the time of decision, the skills of the applicant for the applicant’s nominated skilled occupation had been assessed by the relevant assessing authority as suitable for that occupation.
[66] There is no issue of invalidity in respect of the relevant visa criteria. In their terms, those criteria had no application in Mr Singh’s case at the time of the decision by the Tribunal because of the failure of the respective Ministers to lawfully approve and specify a relevant assessing authority. It does not follow, however, that no valid visa decision could be made in respect of Mr Singh’s visa application. There were other criteria that Mr Singh needed to satisfy at the time of application and at the time of decision. Among other things, at the time of decision, Mr Singh was required to satisfy criterion 485.224 which specified that he satisfied public interest criterion 4020.
[67] Clause 4020(5) specifies that information that is false or misleading in a material particular means information that is false or misleading at the time it is given and relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
[68] The Tribunal found that Mr Singh had given false information about his employment (and hence his work experience) in his visa application and to the Tribunal. The Tribunal found that this information was false or misleading in a material particular, presumably because it bore upon the assessment of his skills for his nominated skills occupation. However, as I have found, the visa criteria applicable at the time of the Tribunal’s decision did not include criterion 485.214 or criterion 485.221 because no relevant assessing authority had been lawfully approved or specified for the purposes of those criteria. There was, in my view, at the time of the Tribunal decision, no other visa criteria upon which the allegedly false information could materially bear.
[69] Accordingly, I find that the Tribunal was in error in finding that the information provided by Mr Singh was false or misleading in a material particular in relation to his visa application. The Tribunal misunderstood what were the applicable visa criteria because of the failure by the respective Ministers to lawfully approve and specify TRA to enliven those criteria. Those criteria are now operative by reason of the necessary approval and specifications apparently having been given. The instrument signed by the Minister purports to have effect in respect of visa applications made before 1 July 2010 and it was not argued before me that the instrument is invalid by reason of its retrospective operation. I infer, therefore, that Mr Singh would be able to satisfy clause 485.214 of the criteria to be satisfied at the time of application. If the matter is remitted to the Tribunal for further consideration, there will probably be an opportunity for Mr Singh to obtain a further assessment by TRA on the basis of such information as he chooses to provide for the purposes of seeking to satisfy criterion 485.221. In the light of what may occur, the Tribunal can give further consideration to the application of PIC 4020.
31. Mr Singh in the current appeal submits that the facts in his case are, in substance, the same as those in Singh. They are not. The critical difference is that, by the time of the decision of the Tribunal in the case before me (that is, 5 July 2012) the legislative defect in relation to Trades Recognition Australia had been rectified. As Federal Magistrate Smith explained at [15] in his reasons for decision in this proceeding:
[15] In its statement of reasons, the Tribunal noted the most recent instrument made by the Minister under the Migration Regulations, which specified relevant skilled occupations, including ‘cook’, and the relevant assessing authority in relation to that occupation. The instrument had been made with a commencement date on 1 July 2012, and is numbered IMMI 12/068. In that instrument in paragraph 2 and Schedule 1A, the Minister identified the TRA as the assessing authority in relation to the occupation of cook ASCO code 4513-11.
32. After discussing authorities which had considered the significance of the absence of an approval in relation to entities including Trades Recognition Australia, his Honour concluded at [20]-[21]:
[20] ... As Barnes FM noted in her judgment, cl.485.221 is a time of decision criteria, which requires reference to the instrument specifying the relevant assessing authority which has been most recently made, even if it was made some time after the making of the visa application.
[21] It is therefore clear that there was in existence at the time of the present decision a relevant and valid designation of the TRA as relevant assessing authority. Mr Singh was required, and failed, to satisfy the Tribunal that there was in existence and current at that time a favourable assessment by TRA of his skills as a cook.
(Emphasis added.)33. In my view this reasoning is sound, and should not be disturbed.
For this reason, orders 2 and 3 that were sought by the applicant should not be granted.
Ground 4
Ground 4 is in the following terms:
4. Further, if the making of the decision by the TRA is invalid and of no effect then the applicant has suffered loss and damage.
PARTICULARS
(a) Reg. 2.26 of the Regulations creates a contract between assessment bodies and the applicant whereby the applicant pays the fee and the assessment authority carries out the assessment for a fee.
(b) The applicant had a contractual entitlement to require the TRA to make an assessment of the suitability of his skills for the occupation of “Cook”.
(c) The applicant paid a fee for service.
(d) If the decision is invalid, then the applicant received no consideration for his fee.
(e) The applicant is entitled to a reimbursement of the fee paid for the decision.
No orders are sought for compensation in this case nor is any form of estoppel or change of position alleged. Counsel did not pursue any argument with respect to this particular ground.
Ground 5
Ground 5 was framed as follows:
5. If the decision is invalid and of no effect, then the Third Respondent will fall into jurisdictional error in taking into consideration the decision to affirm the delegate of the Fourth Respondent’s decision based on an adverse PIC 4020 finding.
PARTICULARS
(a) The Third Respondent will be purporting to rely on a decision that is unlawful and invalid.
(b) The Third Respondent will be making a decision based on no evidence.
(c) The Third Respondent will be making a decision taking into account an irrelevant consideration.
I do not accept that the Tribunal will be taking into account the decision of the delegate as a piece of evidence before it rather than reconsidering the matter afresh and making its own determination of the issues before it with respect to this particular matter.
In written submissions, counsel appeared to place this point on the basis that if the initial TRA skills assessment was not sought by the applicant or within the scope of authority of his migration agent, or was in any way vitiated by fraud, it is a nullity at law, and further, should therefore be completely ignored by the tribunal in determining whether or not the skills assessment that emanated from that process was a ‘bogus document’ provided to the Minister.
The fact that the skills assessment may have been withdrawn or be a nullity for various defects (not the least of which was that it was issued on the basis of fraudulent material) may well have led to it being a nullity at law. However, that simply means that it has no legal effect. The fact that it does not have legal effect, does not alter the factual matters that occurred in the TRA process, nor that, as a matter of fact, an assessment was generated based upon the fraudulent material.
Whether or not, as a matter of fact, the documents generated and the processes that occurred (even if a nullity at law) come within the definition of a “bogus document” as defined in the Regulations is entirely different. If one were to take counsel’s argument to its logical conclusion, no fraudulent document could be a bogus document as fraud vitiates everything and a fraudulent document is of no effect. If a fraudulent document is of no effect or a nullity, on counsel’s argument, it could never be considered and therefore there could never be a “bogus document”. Once stated in plain terms, the difficulties of the argument are apparent.
Ultimately, these are really questions of fact for the Tribunal to determine on the material before it when it conducts its own hearing.
Interestingly, at the hearing of this application, counsel refused to be drawn on the question of whether or not the document was within the definition of a “bogus document” on the facts that formed the basis of this application and that are not disputed before the Tribunal. In this respect, it seems to me that counsel must be taken to have abandoned orders 4 and 5 as sought in the orders sought on the application.
Orders 6 and 7 of the orders sought seek orders in the nature of certiorari to quash the TRA’s purported assessment in April 2009 and purported revocation of that assessment in July 2010. I see no purpose to be served by making orders in the nature of certiorari about a situation where a relevant authority has already formally acknowledged the circumstances and revoked the assessment.
Ground 6
The sixth ground relied upon by the applicant is framed as follows:
6. Further, the Third Respondent proposed to have regard to the search warrant material in contravention of a statutory condition essential to the validity of the decision, and will therefore fall into jurisdictional error.
PARTICULARS
(a) On 29 September 2009, the AFP executed a search warrant at the residence of Mr Carmine Amarante constituted.
(b) By letter dated 25 February 2010, the TRA stated that an investigation undertaken by the Department of the Fourth Respondent revealed that the statement that the applicant worked at L’Aspromonte restaurant may not be genuine.
(c) The Department of the Fourth Respondent provided to the Third Respondent a table showing numerous work references that had been located during the search of Mr Carmine Amarante’s premises.
(d) By email dated 26 March 2012, the Third Respondent received advice from the Department of the Fourth Respondent that an electronic copy (word file) of the work experience in the name of the applicant was seized during the execution of the search warrant at Mr Carmine Amarante’s residence.
(e) On 9 January 2013, the Department of the Fourth Respondent advised the Third Respondent that it had compared the reference submitted and the one located during the search warrant for the client.
(f) The Department of the Fourth Respondent’s file includes a document entitled “Carmine Amarante: Evidence from warrant (updated 23/11/2009)”.
(g) Section 3ZQU of the Crimes Act limits the use which can be made of documents obtained pursuant to a s 3E warrant.
(h) Any proposed use of information obtained pursuant to the s 3E search warrant executed on 29 September 2009 by the AFP at the residence of Carmine Amarante by the Third Respondent in its review of the delegate of the Fourth Respondent’s decision will constitute a breach of s 3ZQU of the Crimes Act.
(i) Any breach of s 3ZQU of the Crimes Act will affect the validity of the Third Respondent’s decision.
In support of ground 6, the applicant seeks orders in the following terms:
8. A declaration that evidence obtained under or derived from the search warrant carried out under s.3E of the Crimes Act 1914 (Cth) (“Crimes Act”) is not admissible to the Migration Review Tribunal because its admission would be a breach of s.3ZQU(1) of the Crimes Act.
9. An order in the nature of certiorari to quash the TRA’s 9 July 2010 purported revocation of first skills assessment dated 1 April 2009 on the basis that it was ultra vires because it relied upon information shared in breach of the Crimes Act.
The applicant argues that the material obtained as a consequence of a search warrant issued under the Crimes Act, which ultimately led to the discovery of the frauds being perpetrated by Amarante with respect to skills assessments (which included this case), is not admissible in the hearing before the Migration Review Tribunal, nor to be used for the purpose of deciding whether or not to grant a visa. The applicant relies upon section 3ZQU of the Crimes Act.
This question has been the subject of a decision in Dhillon v Minister for Immigration and Border Protection [2014] FCCA 552 by Judge Burchardt who said:
98. Section 3ZQU of the Commonwealth Crimes Act 1914 (“the Crimes Act”) provides for the purposes for which things and documents may be used and shared.
99. It is common cause that the redacted material was obtained under a search warrant issued pursuant to s.3E of the Crimes Act. It was common cause that such material is covered by the terms of s.3ZQU.
100. Counsel for the applicant took me to Australian Securities and Investment Commission (ASIC) v Rich[2005] NSWSC 62; (2005) 220 ALR 324 where Austin J said at [186]:
“[186] As the Full Federal Court remarked in Hart’s case, at [65], the purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them, and “recognition of that purpose may yield a construction of the legislative words that is not necessarily narrowly defined”. On the other hand, when one bears in mind that the search of premises and seizure of goods is illegal unless authorised by law, and the law establishes a very detailed regime for authorisation of seizure under a warrant (“an invasion of interests which the common law has always valued highly”: George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 110–11 ; [1990] HCA 26; 93 ALR 483 at 487), any ambiguity or doubt as to the meaning of the statutory words will be resolved in favour of the rights and freedoms of the subject: Hart’s case, at [65].”
101. It was submitted by counsel for the applicant that the use to which the redacted documents were put did not fall within any of the permitted purposes set out in s.3ZQU including sub-section (4) and this derivative use of the material obtained under warrant tainted the entire decision. It was submitted that the delegate should never have given the redacted material to the Tribunal. Section 3ZQU(4) reads:
“(4) To avoid doubt, this section does not limit any other law of the Commonwealth that:
(a) requires or authorises the use of a document or other thing; or
(b) requires or authorises the making available (however described) of a document or other thing.”
102. Counsel submitted that the power of the Minister to seek further information contained in s.56 of the Migration Act was merely discretionary and did not given its general terms act against, so to speak, the confined terms of s.3ZQU.
103. Counsel for the first respondent naturally enough put the matter otherwise. It was submitted that s.359 of the Migration Act permitted the Tribunal to obtain any information it regarded as relevant (a submission that it is plainly correct since that is exactly what the section says).
104. In particular counsel emphasised that s.352(4), the requirement on the Secretary to provide documents to the Registrar, was plainly an exception within the meaning of s.3ZQU(4). It was further submitted that even if the delegate was not able to use the search warrant information for the purposes of decision-making it did not follow that the Tribunal’s decision would be vitiated by jurisdictional error (first respondent’s written submissions paragraph 46).
105. It was submitted “once a document is provided to the Tribunal under section 352(4), it can be taken into account by the Tribunal”.
106. In my opinion the submissions of the first respondent are correct. Section 3ZQU does not limit any activities taken pursuant to another Commonwealth Statute and the process whereby the information was both requested, provided and then used by the Tribunal was not in my view in any way a breach of s.3ZQU.
It is appropriate that I follow his Honour’s decision in this matter unless convinced that his Honour is plainly wrong. I am not so convinced.
Dhillon disposes of this point. However, even if the applicant were correct with respect to the search warrant and the limitations upon the material that flow from the search warrant, the material in the court book does not demonstrate that the MRT is, in fact, considering the contents of the material seized pursuant to the search warrant. The subject has been the subject of correspondence between the applicant’s advisors and the Tribunal.
At Court Book 280, the applicant’s advisors’ letter of 17 September 2013 requesting release of “any documents seized under warrant from DIAC” appears. That letter was the subject of a formal response in writing of 25 September 2013 (see Court Book 284) which advises that a copy of the material from the Tribunal file is enclosed. The material appears at Court Book 285 and is nothing more than an extract from a list of evidence obtained from the warrant, identifying that a work reference from Amarante with respect to the applicant was seized and given document number 147. There is no evidence that any material seized pursuant to the warrant has in fact been relied upon or has in fact been provided to the Tribunal as yet.
In the circumstances I therefore dismiss the application.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 29 August 2014
CORRECTIONS
In Order 2, removed reference to First and Second Respondents.
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