Pan v Minister for Immigration
[2011] FMCA 385
•7 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PAN v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 385 |
| MIGRATION – application for review – forged documents submitted in support of visa application – migration agent fraudulent – alleged obligation of Tribunal to ascertain authenticity of signature – alleged lack of procedural fairness – application dismissed. |
| Migration Act 1958, ss.101, 103, 107, 109, 353, 357A, 359, 359A, 360, 363 Migration Regulations 1994, r.2.41 |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Minister for Aboriginal Affairs & Anor v Peko Wallsend Ltd & Anor (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZIAI & Anor (2009) 111 ALD 15 |
| Applicant: | YAQING PAN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | MLG 1646 of 2010 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 7 April 2011 |
| Date of Last Submission: | 7 April 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 7 April 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lim |
| Solicitors for the Applicant: | Francis Lim, Barristers and Solicitors |
| Counsel for the First Respondent: | Mr R. Knowles |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The amended application filed on 11 March 2011 is dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1646 of 2010
| YAQING PAN |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By his application, the Applicant sought to review the decision of the Second Respondent (the Tribunal) delivered on 29 October 2010; which decision affirmed an earlier determination of the First Respondent’s delegate to cancel the Applicant’s Subclass 880 (Skilled – Independent Overseas Student) visa under s.109(1) of the Migration Act 1958 (the Act).
In determining this matter and making the orders, I indicated to both parties that I would provide more detailed reasons for judgment in the near future. Suffice to say, however, in determining this matter and making the orders, I indicated that I adopted the contentions of fact and law of the First Respondent as being the correct application of the law to the facts of this case.
When the matter came before me, I indicated to both parties that I had read the decision of the Tribunal and both the Applicant’s and the First Respondent’s contentions of fact and law. I had not read an affidavit filed by the Applicant. Objection was taken to that affidavit by the First Respondent. That objection was based upon what was said to be an attempt to introduce new evidence, and to the extent that it sought to do so, it was an invitation for this Tribunal to enter into a merits review; which clearly is not within the jurisdiction of this Court. The Applicant was unable to advance any acceptable reason for me to consider the affidavit, and accordingly I refused to do so.
Background
The Applicant is a 30-year-old citizen of the People’s Republic of China (PRC) who came to Australia as a student to undertake a Master of Business (Banking and Finance) degree at Monash University, having first qualified with a Bachelor of Economics at the Hebei University in PRC. He graduated from Monash with his Masters degree in November 2006 and thereafter found employment applying his skills in the banking industry in Australia.
In order to obtain residence in Australia, as he desired, the Applicant engaged Mr Gary Zhou, a person who held himself out as qualified to assist in the making of applications for visas. On behalf of the Applicant, Mr Zhou made application to the Department of Immigration and Citizenship for a Skilled – Independent Overseas Student (Residence) (Class DV) visa.
The Applicant does not take issue with the fact that Mr Zhou submitted the following forged documents to the Department in support of his visa application:
i)statement of completion for a Certificate III in Printing and Graphic Arts from St George Institute of Professionals, dated 30 April 2007;
ii)a TRA assessment for a graphic tradesperson on 7 June 2007;
iii)a letter from Festival Printing to confirm that the Applicant had more than one year of work experience with them; and
iv)a Form 80, claiming that the Applicant obtained a Certificate III in Printing and Graphics from St George Institute and had worked with Festival Printing from October 2006 to June 2007.
Two other documents, which the Applicant considers significant in the context discussed below, were also submitted on behalf of the Applicant by Mr Zhou. They were two letters dated 25 September 2007 addressed to the Department which were purportedly from the Applicant and purportedly signed by him. From the Applicant’s viewpoint these letters are significant in the context of his review, as he alleges the signatures appearing thereon are forged and not his.
It appears that the offices from which Mr Zhou operated were raided by police and it was discovered that there were a number of forged documents in his possession. As a consequence, as I understand it, investigations were made in respect of applicants for whom he acted, and such investigations discovered the nature of the fraudulent documents submitted on the Applicant’s behalf. It was suggested that Mr Zhou was prosecuted for criminal offences and imprisoned on conviction.
The Applicant asserts that he did not authorise Mr Zhou to do any of the acts which resulted in the production and presentation to the Department of forged documents.
In consequence of the discovery that the Applicant’s documents were forged, the Department thereafter embarked upon a process as dictated by the Act and Migration Regulations 1994 (the Regulations).
The Tribunal’s decision
The Tribunal, in its written reasons for decision, set out the law applying to this case. No issue was taken to the expression of that law by the Applicant.
It is to be noted that the Tribunal before determining the matter, pursuant to s.359A of the Act, wrote to the Applicant on 7 May 2010 inviting him to comment on information that would be the reason, or part of the reason, for affirming the decision under review. Pertinently, in that correspondence the Tribunal highlighted that there was a letter dated 25 September 2007 in which it was claimed the Applicant had completed the Certificate III qualification and had taken work experience at Festival Printing. The reference to “a letter bearing your signature” is pertinent to the arguments principally led by the Applicant in support of the review.
Importantly, the s.359A letter set out, under the heading “Why this information is relevant to the review” the following:
The letter in question is a strong and damning item of evidence, as was explained above, and strongly indicates that you were actively complicit in this deception, rather than an innocent dupe of the agent. You have been aware of the letter, its contents and its significance since at least 27 November 2009, when the delegate quoted it in her s.107 notice to you. Had you genuinely known nothing of its contents and played no part in its preparation, it is, in the Tribunal’s view, quite inconceivable that you would not have challenged its authenticity and evidentiary weight immediately you became aware of it. Yet nowhere in your response to the s.107 notice dated 9 December 2009 or your letter to the Tribunal dated 17 February 2010 did you challenge the authenticity of the letter, or your signature. The first recorded occasion on which you did so was at a hearing on 6 May 2009, some six months after the s.107 notice was issued. This delay raises the most serious doubts about the veracity of your claims, and your credibility more generally.
To that s.359A letter the Applicant responded on 10 May 2010. The response was discussed and analysed in the Tribunal’s “Findings and Reasons”. The Tribunal noted that the Applicant claims that the “actions detailed in the s.107 notice were taken without his authority or knowledge by his migration agent, to whom he simply handed over unfettered responsibility for the conduct of his migration affairs”.
The Tribunal concluded, however, that it “does not accept as truthful the Applicant’s claim to have been an innocent and unwitting dupe of an unscrupulous migration agent, and even to have supposed that he was entitled to a permanent visa by virtue of his qualifications in banking and finance.”
In support of that finding, the Tribunal set out its reasoning, which is as follows:
He [the Applicant] is an intelligent, computer-literate, middle- class professional person, whose background and postgraduate tertiary training in banking and finance would have imbued him with a high degree of caution and circumspection, an eye for detail, and the capacity to investigate his eligibility for an Australian permanent visa. The Tribunal does not accept the applicant’s claim that he simply surrendered his personal papers and complete control of his affairs to an agent with whom he had no prior relationship, knew nothing of the claims being made on his behalf, never monitored his activities or checked the associated forms and paperwork, and did not, even when the application was approved, know on what basis the visa had been granted, allegedly supposing that it must have been in recognition of his banking and finance qualifications.
In my view it was open to the Tribunal, having regard to the evidence to make that finding.
Significantly, the Tribunal made the following statement, which statement the Applicant seized upon for the basis of his assertion that the Tribunal had unreasonably formed a prejudicial view of the Applicant’s position because of the Tribunal’s reliance upon its understanding that the signature appearing on the letter of 25 September 2007 was the Applicant’s:
The Tribunal’s findings are fortified by the contents of the letter dated 25 September 2007, which bears the applicant’s signature, and makes several explicit claims in relation to his alleged training and experience in the graphics and printing trades. (emphasis added)
The Tribunal, however, in my view, on a fair reading of the reasons for decisions, did not found its conclusion merely on the letter of
25 September 2007, but more particularly, in my view, for the reasons set out above in [16]. In any event, the language of the Tribunal is expressed as relying on the letter to fortify its finding, but not as the sole basis for making it. It is also to be noted that in its decision the Tribunal stated as follows:
In his response to the Tribunal’s s.359A invitation, the applicant disputed that he signed the letter. He failed, however, to explain satisfactorily why, if he was not involved in its production and presentation, and having been aware of its contents and its significance since at least 27 November 2009 when the delegate quoted the letter to her s.107 notice, the applicant would not have challenged its authenticity and evidentiary weight immediately he became aware of it.
The most significant finding reached by the Tribunal was that it was “satisfied to the required degree on the totality of the available evidence that the applicant was fully complicit in a fraudulent enterprise designed to secure him a permanent visa to which he is not, and was never, entitled. The Tribunal finds that he contravened s.101 and s.103 of the Act in the manner particularised by the delegate in her s.107 notice dated 27 November 2009, and that grounds for cancellation of the visa therefore exist.” In my view, this finding was clearly open to the Tribunal.
Having so concluded, the Tribunal then turned its mind to the exercise of its discretion, and in particular those prescribed circumstances for the purposes of s.109(1)(c) of the Act, which are set out in r.2.41 of the Regulations. The Tribunal addressed each one of those prescribed circumstances and concluded that the discretion should not be exercised in a way favourable to the Applicant. In reaching that determination, the Tribunal took into account the probable effects on the Applicant’s wife’s migration status, who is presently here in Australia under a Subclass 309 visa. The Tribunal also took into account the Applicant’s employment in a position of trust and his membership of a local church.
Grounds for review
Under the Applicant’s amended grounds for review, filed on
11 March 2011, he sought to challenge the primary decision of the First Respondent’s delegate as well as the decision of the Tribunal. Clearly, those contentions relevant to the delegate’s decision are not within the jurisdiction of this Court to determine and are irrelevant.
In respect of the grounds for review that are pertinent to the determination by the Tribunal, the amended application alleges the Tribunal’s decision was affected by jurisdictional error. In support of that broad ground the Applicant claims the Tribunal:
i)failed to comply with obligations imposed on it by provisions in subdivisions C, D and E of Division 3 of Part 2 and Division 5 of Part 5 of the Act; or
ii)failed to accord the Applicant procedural fairness;
iii)failed to take into account relevant considerations; and
iv)had an obligation to conduct further inquiries into the authenticity of documents lodged by the Applicant in support of his application for the visa and failed to do so.
In respect of the contention that the Tribunal failed to comply with its procedural obligations, I refer to and adopt the written contentions of fact and law as set out in paragraph 6 of the First Respondent’s contentions and adopt them as a correct analysis of the legal framework as applied to the facts and circumstances of the Applicant’s hearing. For the sake of fullness, they are set out in full as follows (omitting references):
6.1The applicant asserts that the Tribunal failed to comply with the procedural obligations imposed on it by the provisions in Subdivisions C, D and E of the Division 3 of Part 2 and Division 5 of Part 5 of the Act.
6.2Firstly, the delegate’s decision to cancel the applicant’s skilled visa was made pursuant to the provisions in Subdivision C of Division 3 of Part 2 of the Act. The provisions in Subdivisions D and E did not apply to the delegate’s decision.
6.3Secondly, to the extent that the applicant asserts that the delegate failed to comply with procedural obligations imposed by the provisions in Subdivision C, such an assertion would not, even if it were made out, necessarily give rise to jurisdictional error affecting the Tribunal’s decision.
6.4Thirdly, and in any event, the Tribunal correctly found that the delegate did not contravene the procedural requirements imposed by the provisions in Subdivision C and, in particular, section 107[CB 244[27]]. Among other things, the notice issued pursuant to section 107 gave particulars of the possible non-compliance with sections 101 and 103 and invited the applicant to respond to the notice [CB 76-104]. The applicant responded to the notice and, in making her decision, the delegate took this response into account [see CB 142-148].
6.5Importantly, the notice issued pursuant to section 107 clearly referred to the contents of the 25 September 2007 letter and observed that the applicant had signed the letter [see, for example, CB 102]. Such an observation was plainly open. It was a matter for the applicant, having read the notice, to challenge such a statement if he wished to do so.
6.6Fourthly, the applicant has not made good the assertion that the Tribunal failed to comply with any provision in Division 5 of Part 5 of the Act.
6.7The Tribunal conducted a hearing, at which the applicant gave evidence. There is no indication that the conduct of the hearing did not comply with the requirements of section 360 of the Act [see CB 241-242 [18]-[24]]. In particular, there is no indication that the applicant was not afforded an opportunity to give evidence and present arguments relating to the issues arising in relation to the delegate’s decision.
6.8The Tribunal also wrote to the applicant pursuant to sections 359 and 359A of the Act [CB208-210]. In doing so, the Tribunal gave clear particulars of information that it considered would be the reason or a part of the reason for its decision. The applicant was provided with an opportunity to respond and did so [CB 211-215].
6.9Save is respect of an alleged obligation on the Tribunal to conduct further inquiries (as to which, see paragraphs 8.1 to 8.11 below), the applicant has not referred to any other provision in Division 5 of Part 5 of the Act which might possibly have relevance to the circumstances of the present case. Although the applicant refers in his contentions to section 353 of the Act, it is well established that this provision cannot provide a foundation for establishing jurisdictional error.
6.10In the circumstances, there is no proper basis for the applicant to claim that the Tribunal somehow failed to comply with one or more provision in Division 5 of Part 5 of the Act.
6.11The applicant otherwise appears to argue that the Tribunal failed to comply with the procedural fairness obligations at common law. However, this argument fails to address the effect of section 357A of the Act, which relevantly states, in respect of the provisions in Division 5 of Part 5, that:
This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
6.12The applicant has not advanced any claim that his complaints relate to a matter which provisions in Division 5 do not “deal with”. In the circumstances, he has not shown how the common law natural justice hearing rule could relevantly apply to the review before the Tribunal.
In respect of the Applicant’s contention that the Tribunal failed to take into account relevant considerations, I again adopt the contentions of the First Respondent at paragraph 7 thereof, and for fullness, repeat them (omitting references):
7.1Jurisdictional error will arise where, in making a decision, a decision-maker fails to exercise his or her jurisdiction or exceeds the jurisdiction bestowed upon him or her. It may relevantly arise where, having regard to the statutory limitations or constraints on decision-making power, it is established that a decision-maker has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material in a way that affects the exercise of power.
7.2In this regard, jurisdictional error might be established if it can be shown that a decision-maker has failed to take into account a relevant consideration in the sense discussed in Minister for Aboriginal Affairs & Anor v Peko Wallsend Ltd & Anor (1986) 162 CLR 24. Such considerations are to be identified primarily by reference to the applicable statutory framework, including the Act and the Regulations. The ground of failure to take into account a relevant consideration can only be made out if the decision-maker failed to take into account a consideration which he or she was bound to take into account in making the decision.
7.3However, a failure by the decision-maker expressly to mention or grapple with part of the competing body of evidence before him or her does not, of itself, give rise to jurisdictional error. A decision-maker is not obliged to give a line-by-line refutation of evidence where it is contrary to his or her material findings of fact. An error of fact based on a misunderstanding of evidence or even overlooking an item of evidence in considering an applicant’s claims is not jurisdictional error, so long as the error does not mean that the decision-maker has not considered the applicant’s claims. The weight given to items of evidence is a matter for the decision-maker.
7.4Moreover, a decision-maker is not required to consider a case that is not expressly made by an applicant or does not arise clearly on the materials before him or her.
7.5It is also important to recall that, in certain circumstances, it may be unnecessary for the decision-maker to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
7.6For the purpose of its review, the Tribunal relevantly “stood in the shoes” of the delegate. In the present statutory context, it was therefore necessary for the Tribunal to determine first whether or not the applicant had failed to comply with sections 101 and 103 of the Act in the manner described in the notice issued pursuant to section 107. Upon determining that the applicant had failed to comply in the manner described in the notice, the Tribunal was then obliged to consider the matters raised by the applicant in his response to the notice as well as, where relevant, the circumstances prescribed in regulation 2.41 of the Regulations.
7.7The Tribunal properly undertook this task. In doing so, it did not fail to take into account any matters made mandatorily relevant by the statutory scheme. The Tribunal clearly considered the matters raised by the applicant in his response to the notice issued pursuant to section 107 [see CB 241-242 [20]-[24] and 244-247 [30]-[48]]. It also had regard to the evidence given and submissions made by the applicant at the hearing before the Tribunal. It also considered the matters raised by the applicant in his response to the Tribunal’s correspondence sent pursuant to section 359A of the Act. It cannot be said that the Tribunal failed to take into account a consideration which it was bound to take into account.
7.8At paragraph 94 of his contentions, the applicant sets out a list of matters which he asserts the Tribunal was bound to take into account and did not take into account.
7.9He first claims that the Tribunal was bound to consider that the applicant’s application for a skilled visa “was completed and submitted electronically by the applicant’s migration agent”. Firstly, it is unclear how it is said that this constituted a consideration which the Tribunal was bound to take into account. Secondly, and in any event, the applicant did not raise this matter before the Tribunal. In the circumstances, it is unclear why the Tribunal was required to deal with it. Finally, the Tribunal found that, irrespective of the way in which the application was made, the applicant was “fully complicit in a fraudulent enterprise designed to secure him a permanent visa”. In light of such a finding, it was not necessary for the Tribunal to deal expressly with this matter.
7.10Secondly, the applicant claims that the Tribunal was obliged to consider whether or not the document entitled “Form 80 – Personal particulars for character assessment” was completed and signed by the applicant. Again, it is unclear how it is said that this constituted a consideration which the Tribunal was bound to take into account. In any event, the applicant did not raise this matter before the Tribunal. There is no indication that, before the Tribunal, he even referred to this document. In the circumstances, it is unclear why the Tribunal was required to deal with it. Finally, the Tribunal’s finding that the applicant was “fully complicit in a fraudulent enterprise designed to secure him a permanent visa” meant that it was not necessary for the Tribunal to deal expressly with this matter.
7.11Thirdly, the applicant asserts that the Tribunal was obliged to consider “the fact that the letter dated 12 December 2007 granting the permanent visa to the Applicant does not mention what basis the visa was granted”. The applicant has not filed a copy of this letter with the Court. In the circumstances, the factual basis for the assertion has not been made out. In any event, the applicant has not demonstrated how, having regard to the applicable statutory scheme, this matter constituted a consideration which the Tribunal was bound to take into account.
7.12Fourthly, the applicant claims that the Tribunal was required to consider whether or not it had an obligation to make further inquiries about the authenticity of the 25 September 2007 letter. This was not a consideration made relevant by the statutory scheme such that the Tribunal was bound to take into account. As to the existence or otherwise of any such obligation, the Minister refers to and repeats the matters set out in paragraphs 8.1 to 8.11 below.
7.13Fifthly, the applicant claims that the Tribunal was bound to consider his assertion that the signature on the 25 September 2007 [sic] was not his signature. Even assuming that this matter was a relevant consideration which the Tribunal was bound to take into account, it did so [see, for example, CB 244-245 [31]]. The Tribunal rejected the applicant’s claim that he did not sign the 25 September 2007 letter or was otherwise unaware of its contents.
7.14Sixthly, the applicant claims that the Tribunal should have taken into account:
… the fact that his migration agent was found by the investigation team of the Department of Immigration and Citizenship to have forged certificates III from St George Institute and letters from Festival Printing and were [sic] convicted of fraudulent conduct and imprisoned.
It is first observed that the applicant has not established the factual basis for this claim insofar as it relates to any criminal convictions. In any event, the applicant has not established that, having regard to the applicable statutory scheme, this matter constituted a consideration which the Tribunal was bound to take into account. Moreover, the Tribunal expressly accepted that the applicant’s former migration agent was “a disreputable agent who had ready access to forged documents and contacts to assist the applicant in advancing his migration plans” [CB 246 [46]. The Tribunal did not, however, accept that the applicant was, at the relevant times, unaware of his former agent’s misconduct. Rather, the Tribunal was satisfied that the applicant was “fully complicit in a fraudulent enterprise” with his former agent [CB 245 [32]. These findings were findings of fact which were open to the Tribunal on the material before it. They addressed the applicant’s claims.
7.15The applicant otherwise claims that the Tribunal failed to have regard to evidence from his employer and his church about his character. As observed at paragraph 7.3 above, the Tribunal was not obliged to mention or grapple with each and every item of evidence before it. The Tribunal was plainly aware of this evidence and took it into account. For example, it referred in its decision to supporting statements lodged by the applicant [CB 246 [45]] and had regard to “his current standing in his profession and social circles” [CB 247 [47]]. It also acknowledged that the applicant was “employed in a position of trust” [CB 247[47]]. However, it is unclear that, having regard to its factual finding about the applicant’s involvement in “a fraudulent enterprise designed to secure him a permanent visa”, the Tribunal found that the positive effect of these items of evidence was outweighed by the Tribunal’s assessment of the applicant’s conduct with respect to his application for a skilled visa [see CB247 [47]].
7.16The applicant also asserts that the Tribunal failed to have regard to “the fact that it was a very serious allegation of criminal conduct on the Applicant’s part”. Again, it is not clear how, having regard to the applicable statutory scheme, this matter constituted a consideration which the Tribunal was bound to take into account. In any event, the Tribunal was clearly mindful of the seriousness of the conduct which the applicant was said to have engaged in. In its decision, the Tribunal referred to Briginshaw v Briginshaw (1938) 60 CLR 336 [CB 239 [9]]. It observed that “in reaching a decision about non-compliance it is appropriate to bear in mind the nature of the allegation and the gravity of the consequences”. In finding that the applicant had been “fully complicit in fraudulent enterprise”, the Tribunal stated that it was “satisfied to the required degree on the totality of the available evidence” (emphasis added) [CB 245 [32]].
7.17The applicant otherwise complains that the Tribunal failed to take into account his claim that officers of the Department had been negligent in failing to investigate the authenticity of various documents lodged in support of his application for a skilled visa. Firstly, it is unclear how it is said that, pursuant to the applicable statutory scheme, the Tribunal was bound to take this matter into account. Secondly, the Tribunal did take this claim into account. It referred to the applicant “seeking to present himself as a victim of, not merely the agent, but the Department’s alleged incompetence and lack of due diligence” [CB 247 [47]]. Finally, having regard to the Tribunal’s finding that the applicant was “fully complicit in a fraudulent enterprise designed to secure him a permanent visa”, it was not necessary for the Tribunal to deal further with this matter.
7.18The applicant also asserts that the Tribunal was obliged to consider whether or not the applicant was entitled to rely on his former migration agent’s integrity and whether or not the Minister (as distinct from the Migration Agents Registration Authority) was somehow responsible for the agent’s conduct. Again, it is not clear how it is said that the Tribunal was bound to take these matters into account. In any event, having regard to the Tribunal’s finding relating to the applicant’s complicity in the conduct of his former migration agent, it was not necessary for the Tribunal to deal with this matter. The Tribunal did not accept the applicant’s claim that he was “an innocent and unwitting dupe of an unscrupulous migration agent” [CB 244 [31]].
7.19Finally, the applicant asserts that the Tribunal failed to consider whether or not the delegate complied with paragraph 109 (1) (c) of the Act and regulation 2.41 of the Regulations. Firstly, it is unclear why the Tribunal was obliged to have regard to the delegate’s consideration of these matters. In the conduct of its review, it was for the Tribunal to have regard to these issues. Secondly, and in any event, it cannot be said that the Tribunal (or the delegate for that matter) failed to have regard to matters relevantly raised for consideration by these provisions [CB 173-176 and 245 -246 [35] – [45]].
7.20In conclusion, the applicant has not established that the Tribunal failed to take into account any consideration which it was bound to take into account. No jurisdictional error affecting the Tribunal’s decision has been made out.
In respect of the Applicant’s contention that the Tribunal was obligated to make inquiries, which obligation was specifically directed to the assertion by the Applicant that the Tribunal should have inquired as to whether the signature appearing on the letters dated 25 September 2009 were forged, I say this.
Mr Lim for the Applicant made further submissions and affirmed those previously made in the Applicant’s written contentions of fact and law. As stated earlier, the Applicant suggested that had it been determined that the signature was forged then it may, and should have, changed the Tribunal’s assessment of the Applicant and his credit and his complicit involvement in the fraudulent documents. It was suggested that once the Tribunal was alerted to the fraud by Mr Zhou in relation to the letter of 25 September 2009, a different conclusion would have been readily reached by the Tribunal. There are a number of things to be said in addition to those matters raised in response by the First Respondent in paragraph 8 of its written contentions of fact and law, and they are that the Tribunal’s decision was not determined on whether the signature appearing on the 25 September 2009 letters was his or forged; it was determined on the assessment by the Tribunal of the nature of the Applicant by way of his training, skills and assumed understanding arising from such and consequently the implausibility, in effect, of the Applicant’s position that he was an innocent victim of a fraudulent and unscrupulous immigration agent. The reference to the letters was by way of buttressing that finding of fact and was not, in a fair reading of the Tribunal’s decision, the foundation upon which the Tribunal concluded adversely in respect of the Applicant’s credibility. In any event, even if the Tribunal had sent the documents off for assessment as to whose signature it was, and had returned a finding that it was not the Applicant’s, then, in my view, nothing is achieved.
It might well have been open then to the Tribunal to find that all of the documents were fraudulent and the signature forged by Mr Zhou, but it still does not erode the basis for the Tribunal’s assessment of the Applicant and his credibility.
Again, for the sake of completeness, I repeat paragraph 8 of the First Respondent’s contentions of fact and law (omitting references):
8.1The only statutory provisions which relate to the Tribunal’s power to make inquiries are sections 359 and 363 of the Act. The powers are exercisable by the Tribunal pursuant to these provisions are permissive and facultative. Sections 359 and 363 do not impose any duty on the Tribunal to make inquiries to obtain further information from an applicant or some other source.
8.2If the tribunal has any obligation to make inquiries, it only arises in very limited and exceptional circumstances. In Minister for Immigration and Citizenship v SZIAI & Anor (2009) 111 ALD 15, a majority of the High Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) stated at [25] to [26] that:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional. It is not necessary to explore these questions of principle in this case. There are two reasons for that.
The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the Tribunal were to undertake the inquiry which was said to be critical to the validity of its decision…. The second reason is that the response made by SZIAI’s solicitors to the Tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial… For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.
8.3At [27], their Honours observed that the applicant had an opportunity to respond to the relevant information in respect of which it was said that the refugee Review Tribunal should have made further inquiries.
8.4It is otherwise well established that it is for an applicant to make his or her case before the Tribunal. The Tribunal is not obliged to prompt or stimulate an elaboration which an applicant chooses not to embark upon.
8.5In the present case, the applicant asserts that the tribunal was obliged to make inquiries about the authenticity of his signature on the 25 September 2007 letter and other documents lodged in support of his application for a skilled visa. In particular, he claims that the Tribunal should have arranged for the documents “to be examined and tested by a handwriting expert”.
8.6There are several problems with this argument. Firstly, there is no indication that the applicant, who was represented before the Tribunal, ever asked the Tribunal to make inquiries which it is now asserted that the Tribunal should have made. In the absence of such a request from the applicant or his representative, it cannot be said that there was any obvious line of inquiry of which the tribunal could reasonably have been aware.
8.7In fact, the applicant acknowledges in his affidavit that he “should have requested” that the Tribunal make such inquiries. However, he did not do so. Although, at the hearing on 6 May 2010 and in its correspondence sent to the applicant on 7 May 2010, the Tribunal expressly questioned the veracity of the applicant’s claim that the 25 September 2007 letter was not signed by him and invited the applicant’s response, neither the applicant nor his representative though to ask the Tribunal to conduct such an inquiry.
8.8Secondly, the applicant has not put forward evidence to indicate what information might have been elicited if the Tribunal had undertaken the inquiry which was said to be critical to the validity of its decision. Aside from the assertions made by the applicant himself, there is no evidence before the Court about the likely outcome of any examination of the relevant documents by a handwriting expert.
8.9Thirdly, the applicant has not demonstrated that an inquiry of a handwriting expert was an obvious inquiry about a critical fact, “the existence of which is easily ascertained”. There is no evidence before the Court about the ease with which a handwriting expert might have determined whether or not the applicant’s signature was “readily available”. In the circumstances, it could not have been obvious to the Tribunal that there existed readily-available material which would have “easily ascertained” the authenticity or otherwise of the applicant’s signature on the relevant documents.
8.10Fourthly, and in any event, it is not clear that, having regard to the statutory scheme and the Tribunal’s reasoning, such an inquiry would have been directed to a critical fact. The Tribunal was satisfied that the applicant’s former migration agent was “a disreputable agent who had ready access to forged documents”. The Tribunal was also satisfied that the applicant entered into a fraudulent enterprise with the agent. In this context, it can be inferred that the Tribunal was satisfied that, irrespective of the person who might have physically signed the relevant documents, the applicant was aware of the documents and their contents.
8.11Accordingly, the circumstances of the present case are not of the requisite “rare” or “exceptional” character. The circumstances of the present case do not suggest that any absence of inquiries by the Tribunal constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the Tribunal’s decision was infected by jurisdictional error.
Conclusion
For the above reasons, the Applicant has failed to demonstrate that there was jurisdictional error on the part of the Tribunal and accordingly the amended application filed on 11 March 2011 should be dismissed.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 7 April 2011
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