Puri v Minister for Immigration
[2016] FCCA 1281
•27 May 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PURI v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 1281 |
| Catchwords: MIGRATION – Application for review of decision of Migration Review Tribunal (Tribunal) – applicant for Skilled (Residence) (Class VB) subclass 885 visa (Skilled visa) provided IELTS test result form (Applicant’s TRF) of test he claimed to have undertaken (Test) - Tribunal not satisfied Applicant’s TRF was not a bogus document because of information received from International Development Program Education Pty Ltd (IDP) suggesting that a person other than the applicant sat for Test – whether the Secretary of the Department of Immigration and Citizenship (Department) was under a duty to provide to the Tribunal information the Department had received from IDP relating to the Test – whether Tribunal was required to make inquiries of the Department of information the Department had received from the IDP in relation to the Test – whether Tribunal relied on information from the IDP to the effect that the Test was cancelled because it had been undertaken by an imposter, and that IDP had provided access to a photograph of the person who had undertaken the test that did not match a photograph the Department maintained of the applicant (Relevant Information) – whether the Relevant Information had been communicated to the applicant by the delegate’s decision rejecting the Skilled visa – whether Tribunal was required by s.359A of the Migration Act 1958 (Cth) to give to the applicant clear particulars of the Relevant Information - jurisdictional error found because Tribunal did not comply with s.359A of the Act. |
| Legislation: Migration Act 1958 (Cth), s.97, 348, 352(4), 359AA, 359AA(1)(b), 359A, 359A(1), 359A(4)(b), 424A, 424A(1), 424A(3) Migration Regulations 1994 (Cth), reg.1.15C |
| Cases cited: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 SZROQ v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 833 |
| Applicant: | VIKAS PURI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1807 of 2014 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 6 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 27 May 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N Dobbie of Dobbie and Devine Immigration Lawyers |
| Counsel for the Respondents: | Mr D Hughes |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The decision of the second respondent made on 5 June 2014 affirming the decision of a delegate of the first respondent made on 26 March 2014 not to grant the applicant a Skilled (Residence) (Class VB) subclass 885 visa is quashed.
The Administrative Appeals Tribunal is substituted for the Migration Review Tribunal as the second respondent.
Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Migration Review Tribunal to review the decision of a delegate of the first respondent made on 26 March 2014 not to grant the applicant a Skilled (Residence) (Class VB) subclass 885 visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1807 of 2014
| VIKAS PURI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant applies for judicial review of a decision by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Skilled (Residence) (Class VB) subclass 885 visa (Skilled visa). The Tribunal affirmed the delegate’s decision because it was not satisfied the applicant did not provide to the Minister a bogus document or information that was false or misleading in a material particular.
Background
The applicant applied for a Skilled visa on 17 January 2011. To have been entitled to the grant of a Skilled visa at that time, the applicant had to satisfy the criteria specified in subclass 885 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations). One criterion was that the applicant had “competent English” as that expression was defined in reg.1.15C of the Regulations. Under that regulation, an applicant could demonstrate he or she had “competent English” if he or she achieved, in a test conducted not more than 2 years before the day on which the application was lodged, “an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening”. That is a reference to the results of English tests undertaken in accordance with the International English Language Testing System (IELTS).
Another criterion the applicant had to satisfy at the time of decision was that prescribed by cl.885.224 of Schedule 2.[1] It required the applicant satisfy, among other things, Public Interest Criterion 4020 (PIC4020), which relevantly provides:
[1] PIC4020 was introduced on 2 April 2011, being the commencement date of Migration Amendment Regulations 2011 (no. 1) (SLI no 13 of 2011) (Cth). Sub-regulation 5.1 provides that Schedule 3 to those regulations amends the Regulations. Item 3 of Schedule 3 amended Schedule 4 to the Regulations by including, among other things, PIC4020. Sub reg.5(2) provides that the amendments made by Schedule 3 apply to applications made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 2 April 2011.
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2)The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse the application;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1) (a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
In support of his application for a Skilled visa, on 15 June 2011 the applicant provided to the Department of Immigration and Border Protection (Department)[2] a document titled “INTERNATIONAL ENGLISH LANGUAGE TESTING SYSTEM Test Report Form” (Applicant’s TRF).[3] The document, which is dated 12 May 2011, records the name of the applicant, contains a photograph purportedly of the applicant, and records the results of a test that occurred on 30 April 2011. The document also records a number in a box next to the words “Test Report Form Number” (Applicant’s TRF Number). A TRF Number is a unique number that is assigned to each IELTS test that a candidate undertakes.
[2] Then known as the Department of Immigration and Citizenship
[3] CB14
According to a letter dated 19 August 2013 the delegate sent to the applicant,[4] the Department received information from International Development Program Education Pty Ltd (IDP) that “following a review of the test, it appears that another person, not you, undertook the test”, and that, in light of the information, “your test result dated 12/5/2011 has been cancelled by IDP”. The delegate then stated he was not satisfied the applicant had undertaken the test, and that he had reason to believe the IELTS test report the applicant had provided may be a bogus document. The letter invited the applicant to “comment on the information that is considered to be non-genuine” and whether there are any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen that may justify the waiver of PIC4020.
[4] CB56-60. According the delegate’s letter rejecting the applicant’s application for a visa (CB102), it was on 15 September 2011 that the Department received information from the IDP Audit and Investigation Unit for IELTS that indicated that another person, not the applicant, had undertaken the IELTS test on 30 April 2011.
At the time she sent the letter to the applicant, an officer of the Department created the following file note:[5]
[5] CB54
19/08/2013
Note details:
Invitation to comment sent
IDP have cancelled IELTS test result [Applicant’s TRF Number] dated 12/5/2011
IDP have advised that imposter used.
Photos do not match
Note type: Event: Fraudulent Documentation Suspected
There is in evidence emails to and from a legal officer of the Department that were created after these proceedings were commenced about the information the Department received from IDP in relation to the IELTS test of 30 April 2011.[6] These inquiries led to Ms Frost, the Acting Manager of the National Allegations Assessment Team (NAAT) SA within the Department, sending an email on 18 August 2014 to the legal officer which stated the following (emphasis added):[7]
British Council India regularly send NAAT SA a spreadsheet to advise of all cancellations and include information regarding what the cancellation relates to eg. impostor, cheating etc.
We received the report which included [the applicant] on 08/09/2011. The report includes three tabs – list for centres IN855 and IN122 and also a list for those applicants who indicated they were intending to travel to Australia. [The applicant] appears on both the ‘IN855, IN122 Cancelled results’ tab and the 080911 report for DIAC tab. The information below was copied from the ‘IN855, IN122 Cancelled results’ tab, [the applicant] can be found at line 134 on the DIAC tab of the report. The report sent by British Council India can be found at OPD2011/163408 dated 08/09/2011.
[6] These are annexed to the affidavit of C See-Man Yu made on 11 March 2015
[7] Affidavit of C See-Man Yu made on 11 March 2015, annexure “B”
117
006503
30-Apr-11
Vikas
Puri
[DOB]
F7303172
I checked via the IELTS Verification website and [the applicant’s TRF number] can still be viewed on this site. I note that on the IELTS report the applicant indicated that he was not repeating the IELTS test but a letter written by the case officer . . . makes reference to the applicant’s claims of having previously sat a number of IELTS tests. Also the photo attached to the IELTS test bears little resemblance to the photos stored in the clients ICSE record.
The letters “ICSE” appear to be a reference to the “Integrated Client Services Environment System”. That is a database maintained by the Department that serves as a “single reference point for all records of a client’s contact with” the Department, and which “supports onshore processing for citizenship, visas, assurance of support, sponsorship, nomination and compliance”.[8] The expression “IELTS Verification website” appears to denote, and I find it does denote, a website maintained by IDP that is accessible by, among others, authorised officers of the Department. In particular, I find it is the same website as the website Ms Modrak, a Departmental officer, deposed she accessed on 20 August 2014.[9]
[8] Department of Immigration and Citizenship--Report into referred immigration cases: Data problems [2007] AUOmbIRp 8 at [3.15]
[9] Affidavit of T E Modrak 11 March 2015
In that regard, Ms Modrak deposed that on 20 August 2014 a legal officer from the Department requested an “IELTS verification screenshot” in relation to the Applicant’s TRF. Ms Modrak accessed the IELTS verification screenshot in relation to the Applicant’s TRF by logging into the IELTS website using her Department-prescribed access information, searching the Applicant’s TRF number, and taking a screenshot of the results, which she emailed to the legal officer who requested the screenshot. The screenshot, which is annexed to Ms Modrak’s affidavit, contains a photograph purportedly of the applicant (IDP screenshot). The person depicted in the IDP screenshot, however, appears to be different from the person in the photograph on the Applicant’s TRF.
On the basis of Ms Frost’s email and Ms Modrak’s affidavit, I find that on 8 September 2011 the Department received a report from IDP which recorded that IDP had cancelled the applicant’s IELTS test score of 30 April 2011 because an imposter undertook the exam; on or about 13 August 2013 the author of the file note of 13 August 2013, or some other person, accessed the IELTS website by using the Applicant’s TRF number, viewed the same photograph that is contained in the IDP screenshot, compared that photograph with the photograph or photographs the Department holds of the applicant in ICSE, and concluded that the photograph accessed from the IELTS website, on the one hand, and the photograph or photographs accessed from ICSE, on the other, did not match. Further, I find that the words “IDP have advised that imposter used. Photos do not match” recorded in the Departmental file note of 19 August 2013 were intended to be a reference to the information pertaining to the applicant contained in the report the Department received from IELTS on 8 September 2011, the photograph of the person that undertook the IELTS test that an officer from the Department accessed on the IELTS website by using the Applicant’s TRF number, and the photograph or photographs of the applicant contained in ICSE (Relevant Information).
The applicant responded to the delegate’s letter by email sent on 13 September 2013.[10] He stated that the information contained in the delegate’s letter was not correct, and that he was unaware his IELTS test result had been cancelled. The applicant requested further time to respond to the delegate’s letter. By email sent on 17 September 2013 the applicant’s agent confirmed to the delegate that the applicant advised that the Department’s information was incorrect, and confirmed the applicant’s earlier request that he be given further time to respond to the delegate’s letter.[11]
[10] CB61
[11] CB63
The applicant provided his response to the delegate’s letter of 19 August 2013 by letter dated 17 October 2013.[12] The applicant said he had contacted IDP India by email, but he had received no response other than to advise the applicant to contact the results section of IDP. The emails the applicant attached to his letter, however, contained more details than those the applicant described in his letter.
[12] CB73
First, there is an email the applicant sent to IDP at 5:55 pm on 11 September 2013.[13] The applicant stated he had been trying to contact the IDP centre by telephone “since 15 days however your lines always come busy”, that a case officer in relation to his visa application for entry into Australia informed the applicant that the applicant’s IELTS test of 30 April 2011 had been cancelled, and that “you have not notify me of cancellation of my IELTS with any reason”. The applicant ended his email with a number of questions, including whether IDP had cancelled his IELTS results, and if so, the reasons for his cancellation.
[13] CB80
IDP responded by email sent at 3:04 pm on 13 September 2013.[14] IDP stated:
This is to inform you that we have already sent a letter regarding the cancellation of your result to your registered mailing address by blue dart courier o June 27, 2011 and the tracking number for the same is [number]. Kindly refer to that letter to get the reason of result cancellation.
Any statement or query related to your cancelled results should be forwarded to result [email protected]
[14] CB82
The applicant responded by email sent at 4:20 pm on 13 September 2013.[15] The applicant stated he “never received any letter from IDP after my result”, that he attempted to track the tracking number on blue dart courier, but the number was not found. The applicant requested IDP forward to him “the confirmation of delivery as well as the letter you posted to my email address”. IDP responded by email sent at 4:17 pm on 14 September 2013, stating that the “tracking details remain available only for 3 months from the date of dispatch and now we are unable to track the document”, or resend the letter.[16] The email suggested that the applicant “mark an email to [email protected] to get any information related to the test result cancellation”.
[15] CB79
[16] CB81
Finally, on 19 September 2013 the applicant sent an email to [email protected].[17] The applicant asked whether IDP had cancelled his IELTS result, and if so, the reasons for the cancellation, and the reasons for his not having been informed. The applicant also requested a copy of the letter informing him of the cancellation.
[17] CB78
Returning to the applicant’s letter to the delegate, the applicant set out his previous IELTS scores, and explained why he went to India and undertook the IELTS exam there. The applicant said he went there because in Australia he was not achieving a score of 6 for each of the IELTS strands.
I then decided to take days off and only concentration on IELTS exam. I decided to go back to India for IELTS exam where I can only concentrate on my test. I went back to India on 17 April 2011 and joined IELTS tuition there. I learnt techniques how to manage time in IELTS. My teacher told me that my English had no problem however I needed to learn only time management technique to score higher in IELTS test. I then only concentrated on IELTS exam on 30.04.2011 and studied very hard. I also planned to take another test if I will not achieve desired score in test dated 30.04.2011. Luckily my hardwork [sic] and teacher’s technique worked out and I achieved 6.0 in my test dated 30.04.2011.
The applicant then claimed the scores of his previous tests were similar to the scores of the test taken on 30 April 2011. The applicant also said:[18]
Also, when we attend IELTS test, there are several checks are conducted by the IELTS supervisors. I must carry my passport with me where supervisor verifies the details before the exam. How can some one else sit for another candidate in the test exam. Also during the speaking test, we have to perform out test in front of the IELTS examiner and before attending the speaking test, the Passport checks done by the supervisors and the speaking examiner. I don’t understand, how can other person can is in the exam where there are so many checks conducting at the IELTS test centres.
[18] Errors are in the original
On 26 March 2014 the delegate rejected the applicant’s application for a Skilled visa because he had reason to believe the Applicant’s TRF was a bogus document.[19] The delegate noted that a “lack of correspondence between you and IDP India is not sufficient evidence that the TRF provided by you is not bogus”, and that the applicant’s past tests were not relevant. The delegate further said the applicant had provided no evidence that might indicate the Applicant’s TRF was not bogus.
[19] CB102-105
Before the Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 1 April 2014. By letter dated 17 April 2014 the Tribunal invited the applicant to appear before the Tribunal on 26 May 2014 to give evidence and present arguments.[20]
[20] CB136
At the hearing the applicant was asked why the Tribunal should accept the applicant’s evidence rather than that of the IELTS. The applicant said that the IDP checked his passport at the time he sat the test, and that he had sent emails to IDP requesting evidence on which IDP relied.[21] The applicant was also asked questions about why, although he had lived in Australia for five years, he had decided to travel to India to sit for the IELTS test there, and what he did there. The applicant said that he needed time away from work, and he wanted to concentrate on the test, and “at home they give me a whole time to study”.[22] The applicant said that when he was in India, he went to the IELTS school.[23] He said he attended that school “for about fifteen day classes” for four hours a day,[24] but that he started his study about five days after he arrived in India.[25] The Tribunal noted the applicant could not have attended for fifteen days because Departmental records indicated he had departed Australia on 17 April 2011, which would have left the applicant with a maximum of thirteen days in which to study.[26]
[21] Affidavit of M R X Devine, annexure “A” (Transcript) pages 8-9
[22] Transcript, page 4, Q27
[23] Transcript, page 5, Q31
[24] Transcript, page 5 Q33, 34
[25] Transcript, page 6, Q46
[26] Transcript, pages 6-7, Q42 -Q57
The Tribunal member informed the applicant that, as required by s.359AA of the Act, the Tribunal member proposed to put to the applicant information that, subject to any comments the applicant might make, would be the reason or a part of the reason for the Tribunal affirming the delegate’s decision. The information was the applicant’s informing the Tribunal that he had studied for about fifteen days after he arrived in India, but that those dates did not accord with the applicant’s evidence that he did not begin to study at the centre until about five days after he arrived in India.[27] The applicant was offered a further opportunity to respond which, as I will discuss later, the applicant did by his agent providing to the Tribunal a post hearing submission.[28]
[27] Transcript, page 10, Q74
[28] Transcript, page 11, Q78
The applicant’s agent asked how IELTS had determined the applicant did not undertake the test of 30 April 2011. The Tribunal member said “[w]e have asked for that information before and haven’t really got anything because IELTS doesn’t really want their, their checking processes, they want them to remain confidential”.[29] The Tribunal member said he was not “sure how it’s actually done”.[30] The remainder of the hearing concerned matters relevant to the waiver of PIC4020.
[29] Transcript, page 12, Q82
[30] Transcript, page 12, Q84
On 31 May 2014 the applicant’s migration agent provided a letter with submissions. The letter dealt with, among other things, the answers he gave about his length of study when he returned to India on 17 April 2011. The letter stated the applicant “meant around 15 days altogether coaching which includes coaching in Sydney and in India”, and that the applicant was “nervous and depressed during the interview” with the Tribunal.[31]
[31] CB146-147
Tribunal’s reasons for decision
The Tribunal considered the issue before it to be whether the applicant met PIC4020. It first considered whether, by providing the Applicant’s TRF to the Department, the applicant had given, or caused to have given to the Department a bogus document, or information that is false or misleading in material particular. After referring to two cases, the Tribunal referred to the delegate’s decision recording the applicant’s having provided the Applicant’s TRF, and to the delegate’s decision indicating that the Department had subsequently been advised by the IDP Audit and Investigation Unit for IELTS that a person other than the applicant had undertaken the test referred to in the Applicant’s TRF. The Tribunal then referred to the applicant’s response to the letter the delegate sent about the IDP’s decision, noting that the applicant had relied on his previous IELTS test scores being very close to the test results recorded in the Applicant’s TRF. The Tribunal also referred to the applicant’s evidence that he had returned to India on 17 April 2011 to undertake IELTS tuition,[32] and to the applicant’s having submitted that the IELTS had not informed him how it conducted its enquiries.[33]
[32] CB152, [1]. The Tribunal incorrectly stated the applicant returned to India on 17 April 2014
[33] CB153, [15]
The Tribunal concluded it was satisfied the “information provided from IDP, which indicates that the applicant did not undertake the IELTS test on 30 April 2011 and that it was undertaken by another person, is reliable and probative”.[34] The Tribunal was not satisfied that the applicant’s claims that he did not receive advice from IDP about the manner in which it conducted its inquiries, and that the applicant’s previous IELTS test results, overcame the evidence provided by the IDP.[35] The Tribunal also relied on its view that the applicant’s evidence that he returned to India to study before undertaking the test was “problematic”.[36] The Tribunal did not accept the applicant:[37]
was confused about where he received coaching and does not accept that he would not recall if he received coaching for 15 days in Sydney and India or only in India. The Tribunal considers it evident that the applicant has altered his evidence in relation to this issue in response to the information put to him indicating that his evidence did not accord with the Department’s records as to when he left Australia for India.
[34] CB154, [18]
[35] CB154, [18]
[36] CB154, [19]
[37] CB154, [19]
Also, for reasons that are not relevant to these proceedings, the Tribunal was not satisfied PIC4020 should be waived.
Ground 1 – failure to conduct required review
The applicant’s first ground of review is that the Tribunal failed to conduct the review it was required to conduct. The basis of that submission is that neither the delegate nor the Tribunal saw the evidence on which the IDP relied for concluding the applicant did not take the IELTS test; it simply relied on second-hand, untested evidence from the delegate’s decision record to find that the applicant had given a bogus document, namely, the Department’s having received information from the IDP Audit and Investigation Unit for IELTS that a person, other than the applicant, had sat the IELTS test on 30 April 2011. The applicant submits that, to have properly undertaken the review it was required to undertake, the Tribunal ought to have obtained the information or documents on which IDP relied to find the applicant had not sat the IELTS test on 30 April 2011. The applicant relies on the reasons for judgment of Flick J in Patel v Minister for Immigration and Border Protection (with whose reasons Edmonds J agreed).[38] Before I consider the applicant’s submissions, and the Minister’s submissions, it will be necessary, to examine Flick J’s reasons for judgment, and to identify the principles that may be extracted from those reasons.
[38] [2015] FCAFC 22
Patel v Minister for Immigration and Border Protection
In Patel the applicant provided a document in support of her application for a visa which recorded IELTS test results that were different from the results of the same test the Department accessed from an IELTS website. The Tribunal was satisfied there were reasonable grounds for suspecting the document the applicant provided was bogus and, therefore, was not satisfied that PIC4020 had been met.
Before the Full Federal Court, the applicant submitted the Tribunal made a jurisdictional error because the Tribunal should have secured further information about the accuracy of the test results. In response to that submission, Flick J considered the circumstances in which the Secretary of the Department (Secretary) or any other government agency might come under a duty to provide information to the Tribunal, and the circumstances in which the Tribunal’s duty to conduct a review under s.348 of the Act might oblige it to make inquiries of other government departments, and in particular, the Department. His Honour said:[39]
Well short of any “duty to inquire” and entirely separate from any consideration of improperly imposing an onus of proof upon a government agency participating in an administrative review, there may be circumstances in which a “review” as contemplated by the legislature may not be lawfully carried out if relevant and available materials are not placed before the Tribunal. There may, for example, be circumstances in which a claimant can show that a government agency has documents or other information centrally relevant to the proper resolution of the potential claims which are – for whatever reason – not being made available to the Tribunal. A failure on the part of a government agency to make such materials available to a reviewing authority may be tantamount to a failure to comply with the “old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects”: Melbourne Steamship Co Ltd v Moorehead [1912] HCA 69; (1912) 15 CLR 333 at 342 per Griffith CJ. A “review” may, for example, require that an administrative tribunal need have before it not only such materials as were before the delegate whose decision is under “review”, but all such other relevant material that was available to the delegate. A government agency cannot, by way of example, artificially circumscribe the ambit of a proper “review” by confining the ambit of those materials in fact before a decision-maker to the exclusion of other readily available material.
[39] [2015] FCAFC 22 at [41]
Flick J acknowledged that this formulation of the obligation of a government agency to provide information to the Tribunal perhaps goes a little further than the duty s.352(4) of the Act imposes on the Secretary of the Department (Secretary) to give to the Registrar of the Tribunal “each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision”. His Honour, however, concluded:[40]
In the absence of any reason to question the position, the Tribunal may proceed upon an “assumption” that the Secretary has provided all such information: Khant v Minister for Immigration and Citizenship [2009] FCA 1247 at [74], (2009) 112 ALD 241 at 256. In an appropriate case the Tribunal may seek the provision to it of further information, be it further information which the Secretary “considered ... to be relevant” or otherwise. The view formed by the Secretary should not confine the freedom of the Tribunal to request such further information as may be available and which the Tribunal itself “considers to be relevant”.
[40] [2015] FCAFC 22 at [41]
Flick J recognised that his Honour’s observations on the circumstances in which the Tribunal may be obliged to obtain further information from the Secretary of the Department may need to be qualified where the applicant has not made available to the Tribunal all relevant and available material in his or her possession. That is apparent in the following passage:[41]
By reason of the different duties imposed upon a Commonwealth agency as opposed to those imposed upon a claimant, it may be that a failure on the part of a claimant to make available all relevant and available material in his own possession may attract different considerations.
[41] [2015] FCAFC 22 at [42]
His Honour also said:[42]
It is not every case in which there is a conflict in evidence that requires an independent decision-maker to undertake its own inquiries or secure the provision of further information which is not presently available to either the claimant or the government agency. Indeed, such cases it may readily be expected are the exception rather than the rule. Nor can a duty to secure further information be transferred by a claimant to an independent decision-maker simply by a claimant providing information that conflicts with the information available to a government agency. And that is the case even where a claimant has attempted, unsuccessfully, to obtain further information.
[42] [2015] FCAFC 22 at [45]
Flick J concluded the Tribunal was not required to obtain further information in relation to the test results. There was an obvious conflict of evidence concerning the test results, and the existence of that conflict was brought to the applicant’s notice, thus giving her an opportunity to respond.[43]
[43] [2015] FCAFC 22 at [44]
The following principles may be discerned from Flick J’s observations in Patel that I have quoted.
a)In certain circumstances, government agencies in general, and the Secretary in particular, may come under a duty to provide information to the Tribunal (Duty to Provide Information).
b)A necessary, although, in light of (c), not sufficient condition for a government agency’s or for the Secretary’s coming under a Duty to Provide Information to the Tribunal is an applicant’s showing that the government agency or the Secretary has documents or other information centrally relevant to the proper resolution of the potential claims which are not being made available to the Tribunal.
c)A failure by an applicant to make available all relevant and available material in his or her own possession may prevent the government agency or the Secretary from coming under a Duty to Provide Information to the Tribunal.
d)A government agency’s or the Secretary’s failure to provide information in breach of the duty referred to in (a) may lead a court exercising judicial review to conclude that the Tribunal has not undertaken the “review” required by s.348 of the Act.
e)The Tribunal itself may assume that information the Secretary provides to it is all the relevant information in the Secretary’s possession. The Tribunal, however, is not obliged to accept the Secretary’s views of what is relevant, and the Tribunal has power to request additional information the Tribunal considers to be relevant.
f)At least in some circumstances where there is a conflict in evidence, the Tribunal may be required to undertake its own enquiries; but it is not in every case where there is a conflict in evidence that the Tribunal must undertake its own enquiries.
A number of matters may be noted about Flick J’s observations. First, his Honour deals with two distinct topics. The first is the circumstances in which the Secretary and any other government agency may come under the Duty to Provide Information, failure in the discharge of which may result in the Tribunal not conducting the review it is required to conduct under s.348 of the Act. The second is the circumstances in which the Tribunal itself may come under an obligation to seek information.
The second matter to note is that his Honour does not appear to ground the Duty to Provide Information in any particular provision of the Act or any other Act or regulation. The only source of the Duty to Provide Information his Honour identifies is the passage his Honour quotes from the judgment of Griffith CJ in Melbourne Steamship Co Ltd v Moorehead, namely, the “old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects” (the principle of fair dealing).[44]
[44] [1912] HCA 69; (1912) 15 CLR 333 at page 342
Griffith CJ pronounced the principle of fair dealing in a specific procedural context. It was directed to a submission made by the respondent informant that a paragraph of a statement of claim, properly construed, could apply to an alleged combination in restraint of trade that was not the subject of proceedings that had already been commenced under the Australian Industries Preservation Act 1906 (Cth). Griffith CJ said the submission was “a purely technical point of pleading, and I cannot refrain from expressing my surprise that it should be taken on behalf of the Crown”.[45] It was immediately after his Honour expressed his surprise at the technical pleading point that was taken by the respondent informant that his Honour stated the principle of fair dealing.
[45] [1912] HCA 69; (1912) 15 CLR 333 at page 342
Consistently with the context in which Griffith CJ stated the principle of fair dealing, the principle has been referred to or applied mostly to the Crown’s conduct as a litigant.[46] For example, in Scott v Handley the Full Federal Court said:[47]
[44] Insistence upon that standard is a recurrent theme in judicial decisions in this country in relation to the conduct of litigation by all three tiers of government: see eg Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 at 166; Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; (1997) 76 FCR 151 at 196-197; SCI Operations Pty Ltd v Commonwealth of Australia (1996) 69 FCR 346 at 368; Director of Public Prosecutions (Cth) v Saxon (1990) 28 NSWLR 263 at 267; Kenny v State of South Australia (1987) 46 SASR 268 at 273; Logue v Shoalhaven Shire Council [1979] 1 NSWLR 537 at 558-559; P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 at 383-384; see also R v Tower Hamlets London Borough Council, Ex parte Chetnik Developments Ltd [1988] 1 AC 858 at 876-877.
[45] As with most broad generalisations, the burden of this fair dealing standard is best appreciated in its particular exemplifications in individual cases. The courts have, for example, spoken positively of a public body’s obligation of “conscientious compliance with the procedures designed to minimise cost and delay”: Kenny's case, above, at 273; and of assisting “the court to arrive at the proper and just result”: P & C Cantarella Pty Ltd v Egg Marketing Board, above, at 383. And they have spoken negatively, of not taking purely technical points of practice and procedure: Yong’s case, above, at 166; of not unfairly impairing the other party's capacity to defend itself: Saxon's case, above, at 268; and of not taking advantage of its own default: SCI Operations Pty Ltd, above, at 368.
[46] See G Appleby “The Government as Litigant”(2014) 37(1) UNSWLJ 94 at pages 100-102; S Le Mire “‘It’s not Fair!’: The Duty of Fairness and the Corporate Regulator” (2014) 36 SLR 445
[47] [1999] FCA 404 at [44] and [45] (Spender, Finn, and Weinberg JJ)
The principle of fair dealing was also discussed, although not explored in detail, by the High Court in Australian Securities and Investments Commission v Hellicar.[48] In that case the Court of Appeal of the Supreme Court of New South Wales held that the plaintiff (ASIC) was under a duty to act fairly in the proceedings, and ASIC breached that duty by failing to call particular evidence. In the High Court, the plurality accepted that courts and litigants rightly expect that ASIC will conduct any litigation in which it engaged fairly. The plurality noted, however, that the Court of Appeal did not sufficiently identify the source of the duty it held applied to ASIC which required it to call the evidence in question. The plurality, nevertheless, decided it was neither necessary nor desirable to explore the issue about the source or content of the duty the Court of Appeal held bound ASIC, other than to observe a number of matters. One of these was that ASIC had brought the proceedings in federal jurisdiction, and that, consequently, provisions of the Judiciary Act 1903 (Cth) were engaged. In that regard, the plurality said:[49]
in considering how those sections would apply to pick up relevant State or Territory laws or the common law of Australia so as to provide for a duty of the kind hypothesised, it would be necessary to consider whether and to what extent laws of the Commonwealth such as the Corporations Act or the Australian Securities and Investments Commission Act 2001 (Cth) otherwise provide.
[48] (2012) 247 CLR 345
[49] (2012) 247 CLR 345 at [149]
In separate reasons for judgment, Heydon J also considered the principle of fair dealing. His Honour found that the duty to which the Court of Appeal held ASIC was subject could not be implied from ASIC’s being a model litigant,[50] or from the need to secure a fair trial,[51] or from the nature of ASIC’s powers and functions.[52] As to the last of the three potential sources of the duty, Heydon J said that the Court of Appeal did not explain how the cumulative effect of ASIC’s powers and functions justified the creation of the duty.[53]
[50] (2012) 247 CLR 345 at [239]-[240]
[51] (2012) 247 CLR 345 at [241]
[52] (2012) 247 CLR 345 at [242]-[243]
[53] 2012) 247 CLR 345 at [242]
Although in Hellicar neither the plurality nor Heydon J considered in detail the principle of fair dealing, at least one principle may be derived from their Honours’ reasons for judgment: whether or not, in any given case, a repository of power is under a duty to exercise that power according to the principle of fair dealing, and, if so, what is the content of that duty, depends on the proper construction of the statutory provisions that expressly or impliedly confer power on the repository of power, and which govern the repository’s exercise of that power. Thus, Flick J’s reliance in Patel on the principle of fair dealing to found a duty on government agencies or the Secretary to provide information to the Tribunal beyond that imposed by s.352(4) of the Act without identifying any statutory sources or common law principle of that duty, may not be consistent with what the High Court said in Hellicar.
A third matter to note about Flick J’s observations in Patel relates to the circumstances that must exist before the Duty to Provide Information can arise in any given case. The relevant circumstances is the applicant’s showing the government agency or Secretary has documents or other information that are “centrally relevant to the proper resolution” of the claims before the Tribunal. This gives rise to a number of questions or set of questions.
a)The first concerns the meaning of “centrally relevant”. Does it mean centrally relevant in the sense that the information is determinative of the application that is before the Tribunal? Or is it something less? Further, must the information be centrally relevant to the resolution of the applicant’s claim, either in favour of or against the applicant? Or must the information be determinative in favour of the applicant’s claim so that, if the information could only be determinative against the applicant, there would be no duty on the government agency or Secretary to provide the information to the Tribunal? In my opinion, “centrally relevant” must mean information that at the very least is potentially capable of significantly supporting the applicant’s claims. It does not mean information that could not assist the applicant. I base my opinion on Minister for Immigration and Citizenship v SZIAI.[54] In that case the plurality decided not to consider the broader question of the circumstances in which the Refugee Review Tribunal (RRT) might come under a duty to inquire because there was nothing in the record to indicate that the inquiry it was claimed the RRT ought to have made would have yielded any useful result.[55] The same reasoning should be applied to information that is claimed to be “centrally relevant to the proper resolution” of the claims before the Tribunal. If the information that is claimed to be centrally relevant could not have yielded any useful result for the applicant, there would be no obligation on the government agency or Secretary to provide the information to the Tribunal.
b)A second question is: is it for the Court to determine whether information is centrally relevant to the proper resolution of an applicant’s case for review, or is it a question for the Tribunal to determine? Given that it is the Tribunal, not the Court, that has jurisdiction to determine an applicant’s application for review, the information must be centrally relevant in the eyes of the Tribunal, not of an exercising judicial review jurisdiction court. If that is so, a court exercising judicial review jurisdiction cannot determine whether any given information is centrally relevant to an applicant’s claim. The most a court can say about information that is claimed to be centrally relevant to an applicant’s claim is that it would have been reasonably open to the Tribunal to consider that the information was centrally relevant to the determination of the applicant’s claims.
c)A third question is: by reference to what information is the question whether information is centrally relevant to the proper resolution of the case to be decided? Is it limited to information that was before the Tribunal? Or may evidence be adduced at the hearing of an application for judicial review of the Tribunal’s decision that is relevant to whether the information claimed to have been centrally relevant could reasonably have been considered by the Tribunal to have been centrally relevant? In my opinion, evidence is receivable at the hearing of an application for judicial review. There are two reasons for my opinion. The first is Flick J said that an applicant’s failure to make all relevant and available material in his or her possession “may attract different considerations”. Although his Honour did not identify what those considerations might be, it is at the very least clear that his Honour considered it to be relevant that the applicant may have had relevant information which he did not provide to the Tribunal. Whether or not an applicant did have such evidence and, if so, what that evidence was, is a matter that may be explored at the hearing of an application for judicial review. My second reason for being of the opinion that the court on judicial review may have regard to information that was not before the Tribunal is the High Court’s decision in SZIAI. I have already held on the basis of the plurality’s approach in that case that it is relevant to whether a government agency or the Secretary ought to have provided information to the Tribunal to inquire whether that information, if it were provided, could reasonably have yielded any useful result for an applicant. That means that evidence would be receivable to determine whether the information it is claimed ought to have been provided to the Tribunal could reasonably have yielded any useful result for an applicant.
[54] [2009] HCA 39 at [26]; (2009) 83 ALJR 1123; (2009) 259 ALR 429 at page 436 ([26])
[55] [2009] HCA 39 at [26]; (2009) 83 ALJR 1123; (2009) 259 ALR 429 at page 436 ([26])
A fourth matter to note arises from Flick J’s observations in Patel that it is not in every case where there is a conflict of evidence that requires the Tribunal to undertake its own enquiries. That implies that, at least in some circumstances, a conflict of evidence might require the Tribunal to make its own inquiries. It is unclear, however, whether his Honour envisaged that the Tribunal might be required to make its own inquiries outside the limited circumstances suggested by the High Court in Minister for Immigration and Citizenship v SZIAI.[56] Given that his Honour referred to SZIAI, it may be taken that his Honour did not intend to hold that the Tribunal could be required to undertake enquiries outside those limited circumstances.
[56] [2009] HCA 39; (2009) 259 ALR 429
I reviewed SZIAI in some detail in Shah v Minister for Immigration & Anor and will not repeat here what I there said.[57] There are, however, two matters I wish to emphasise. The first is that the plurality in SZIAI held it was not necessary to explore the extent to which the Tribunal may come under an obligation to make inquiries in order for it to properly review an application before it because, on the facts of that case, “there was nothing on the record to indicate that any further inquiry by the [RRT] . . . could have yielded a useful result”.[58] That suggests that if the inquiry it is alleged the Tribunal ought to have made could not have yielded any useful result for the applicant, or that such inquiry would be futile, the Tribunal’s not undertaking such inquiry would not lead to the conclusion that the Tribunal did not conduct the review it was required to undertake.
[57] [2014] FCCA 624 at [29]-[43]
[58] [2009] HCA 39 at [26]; [2009] HCA 39; (2009) 259 ALR 429 at page 436 ([26])
The second matter I wish to emphasise is what the Federal Court has said about SZIAI. The approach of the Federal Court, at least in most cases, has been to take as the starting point the proposition that “a failure by the Tribunal to make inquiries about a critical fact the existence of which could be easily ascertained may mean that no review has been conducted”,[59] and then consider whether the fact into which it is claimed the Tribunal (or RRT) failed to inquire was a critical fact and, if so, whether it was a fact whose existence could have easily been ascertained.[60]
[59] Tang v Minister for Immigration and Citizenship [2013] FCAFC 139 at [28] (Rares, Perram and Wigney JJ)
[60] See, for example, BZAHN v Minister for Immigration and Border Protection [2016] FCA 281 at [52] Rangiah J); Minister for Immigration and Border Protection v SZRTF [2013] FCA 1377 (Katzmann J); SZRSC v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 819 at [16] (Davies J); SZROQ v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 833 at [28] (Farrell J); SZRUY v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 806 at [22] (Farrell J); SZSEV v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 794 at [16] (Cowdroy J); Khant v Minister for Immigration and Citizenship [2009] FCA 1247 (Cowdroy J)
With this discussion of Patel completed, it will be seen that ground 1 of the grounds of application raises the following issues:
a)What is the information which the applicant submits the Tribunal ought to have sought, or which ought to have been provided to it?
b)Was the information available to be provided to the Tribunal?
c)To the extent the information was available to be provided to the Tribunal, was the information such that the Tribunal could reasonably have considered it to be “centrally relevant to the proper resolution” of the applicant’s claims?
d)Was the information a critical fact such that, had the Tribunal sought to, and did obtain the information, it would have been critical to the applicant’s case and, if so, was it information whose existence could have easily been ascertained by the Tribunal?
Information
In his written submissions, the applicant identifies the information the Tribunal ought to have inquired into to obtain as “the information/documentation that IDP relied on to find that the Applicant had not sat the IELTS test”.[61] Further, the applicant submits that, to conduct its review, the Tribunal was required to have that information before it “and any relevant information that was before the delegate”. That information is not defined with any greater specificity. There is, however, one item of information that falls within that description, and which is capable of precise description; and that is the IDP screenshot.
[61] Applicant’s Outline of Submissions [19]
Was the information available to be provided to the Tribunal?
It is convenient to draw a distinction between the unspecified “information/documentation that IDP relied on to find that the Applicant had not sat the IELTS test” (IDP Audit Information) and the IDP screenshot, or, what amounts to the same thing, the information contained in the IDP screenshot. The applicant has put on no evidence to suggest that the IDP Audit Information was available to the Secretary or to the Department for it to be provided to the Tribunal. If anything, the evidence suggests that such information was not available. As I have already noted, during the hearing the Tribunal said to the applicant that “[w]e have asked for that information before and haven’t really got anything because IELTS doesn’t really want their, their checking processes, they want them to remain confidential”.[62]
[62] Transcript, page 12, Q82
The IDP screenshot is different. From the fact that the Minister was able for the purpose of these proceedings to obtain the IDP screenshot simply by accessing the IELTS website, I find its existence was available to the Tribunal and its existence could easily have been ascertained by the Tribunal.
Was the information centrally relevant to the determination of the applicant’s case?
The IDP Audit Information may reasonably have been viewed by the Tribunal to have been centrally relevant to the resolution of the applicant’s claims if there was a real issue as to whether, as the delegate asserted in his letter dated 13 August 2013, a person other than the applicant, had undertaken the test referred to in the Applicant’s TRF. The applicant, however, provided no evidence, either to the delegate, or to the Tribunal, or to this Court, that was probative of his actually being the person who sat for the test referred to in the Applicant’s TRF, that it is reasonable to expect was within his power to provide, if what he said to the delegate and to the Tribunal were true.
The applicant asserted to the delegate and to the Tribunal that he sat the IELTS test on 30 April 2011, and that he had travelled to India for the purpose of undertaking classes to prepare for the IELTS test. If those assertions were true, however, it is reasonable to expect that documents would have been generated to support the assertions, and that the applicant would have held, and provided such documents to the delegate and the Tribunal. For example, the applicant would presumably have been charged a fee for the classes, and perhaps he would have been provided with course materials, and he himself would have generated documents for the purposes of the course. The applicant provided no evidence of fees having been charged to him, or of any course materials provided to him, or of work he had undertaken for the purposes of the course.
Further, had the applicant in fact attended the test, it would also have been reasonable to expect the applicant give detailed particulars of the test itself – where the test was held, the time it was held, and the actual procedures that were followed, and in particular, whether any processes were followed to determine that the applicant himself was the person he represented himself to be. All that the applicant said in his letter to the delegate dated 17 October 2013, however, was that the test “is my own result and I myself attended the exam in India”; and, before the Tribunal, the applicant said that the IDP checked his passport at the time he sat the test.
Also relevant are the enquiries the applicant made to IDP after he received the delegate’s letter of 19 August 2013. In his emails to the IDP the applicant stated he had been informed that the test results had been cancelled. The applicant, however, only said he needed to know “the cause of cancellation of my IELTS test” and that he needed to “inform the causes to the case officer immediately”.[63] The applicant, however, did not state what the delegate had stated to him, namely, that the Department had received information from the IDP that, following a review of the test referred to in the Applicant’s TRF, “it appears that another person, not you, undertook the test”. Why the applicant did not communicate this information to the IDP is not explained. It is reasonable to expect that, had the applicant believed that he, rather than another person had sat the IELTS test on 30 April 2011, the applicant would have communicated to the IDP what the delegate had communicated to him, and positively asserted that it was he, rather than another person, who had sat for the exam; and he would have requested information, that would show that it was he, rather than another person, who undertook the exam.
[63] CB78 and 80
Whether or not the IDP screenshot may reasonably have been considered by the Tribunal to be centrally relevant to the applicant’s claim turns on the same matters I have considered in relation to whether the IDP Audit Information could reasonably have been so viewed. But there is an additional consideration. Although the Minister has put in evidence the IDP screenshot, the applicant himself has not put on any evidence to say that he is the person photographed in that document. Thus, there is no evidence from the applicant that the person in the IDP screenshot is the applicant.
Mr Dobbie, who appeared for the applicant, submitted it was not necessary for the applicant to put on such evidence because whether or not the person in the IDP screenshot was or was not the applicant was a matter that ought to have been determined by the Tribunal. That submission, however, assumes that the applicant at the very least asserted he is the person in the IDP screenshot. But that assumption is not warranted. The applicant has not put on any evidence in which he says he is the person depicted in the IDP screenshot. I did not understand Mr Dobbie to have positively submitted that the person in the IDP screenshot was the applicant. In the absence of evidence that the person in the IDP screenshot is the applicant, it cannot be said there would have been an issue before the Tribunal that the person depicted in the IDP screenshot is the applicant. It follows, therefore, that the IDP screenshot could not reasonably have been considered by the Tribunal to be centrally relevant to determining an issue that was before the Tribunal.
Another, and simpler way, of showing that the IDP screenshot was not of critical importance to the Tribunal’s decision is to ask whether, had the IDP screenshot been before the Tribunal, would it have been reasonably open to the Tribunal to have made a different decision to the one it made. In the absence of any evidence that the person depicted in the IDP screenshot is the applicant, that question can only be answered in the negative. On its face, the IDP screenshot depicted a person who appears different from the person depicted on the Applicant’s TRF. In those circumstances, the IDP screenshot could only have reinforced the evidence that was before the Tribunal, and on which it relied for affirming the delegate’s decision.
Was the IDP Audit Information or the IDP screenshot critical information the existence of which could easily have been ascertained by the Tribunal?
For reasons I have already given neither the IDP Audit Information nor the IDP screenshot was critical information. Also for the reasons I have given, although I am satisfied the IDP screenshot could easily have been obtained by the Tribunal, I am not satisfied the Tribunal could easily have ascertained the IDP Audit Information.
I am not satisfied, however, that the information contained in the IDP screenshot was not also easily ascertainable by the applicant. As I have already noted, the applicant did not inform the IDP that it had been said against him that some person other than him had sat the IELTS test on 30 April 2011, and he himself did not ask IDP whether it had a photograph of the person who had sat for the exam. I am not prepared to assume that had the applicant asked IDP for such document he would not have been provided with it. In those circumstances, I am not prepared to find that the Tribunal was obliged to inquire into the existence of the IDP screenshot when there is no evidence that it was not open to the applicant to have obtained the same information.
Finally, even if the Tribunal was required to obtain the IDP screenshot, the applicant has not adduced any evidence that would suggest that, had the Tribunal done so, it would have assisted the applicant. As I have already noted, the Minister put in evidence the IDP screenshot, but the applicant had not put on any evidence to say that the person photographed in the IDP screenshot is the applicant. On their face, the photographs in the IDP screenshot and the Applicant’s TRF depict two persons, not one. Stated another way, it is impossible to imagine that had the Tribunal before it the IDP screenshot, the Tribunal could reasonably have concluded that the IDP screenshot, together with the other matters on which the applicant relied, could “overcome the evidence provided from IDP which indicates that the applicant did not undertake that test”.[64]
[64] CB154, [18]
Conclusions
My findings on ground 1, therefore, may be summarised as follows:
a)to the extent the applicant relies on the observations of Flick J in Patel:
i)neither the Secretary nor the Department were under a duty to provide to the Tribunal the IDP Audit Information or the IDP screenshot because the applicant had provided no evidence which it was reasonable to expect was available to him to produce, if it were that the applicant did sit for the 30 April 2011 exam, to suggest there was a real issue that the applicant did not sit the IELTS test of 30 April 2011; and
ii)additionally, neither the Secretary nor the Department were under a duty to provide to the Tribunal the IDP screenshot because the applicant has not shown that the information contained in the IDP screenshot could reasonably have been considered by the Tribunal as evidence that could assist the applicant’s case;
b)to the extent the applicant relies on an alleged failure by the Tribunal to seek the IDP Audit Information and the IDP screenshot:
i)neither the IDP Audit Information nor the IDP screenshot was critical to the applicant’s case for the reasons given in (a) and because the applicant put on no evidence to the effect that he was the person photographed in the IDP screenshot;
ii)the IDP Audit Information was not easily available to the Tribunal; and
iii)in any event, even if the Tribunal was required to access the IDP Audit Information and the IDP screenshot, the applicant had not established that, had the Tribunal inquired and obtained that information, it would have assisted his case.
Before I leave this part of the applicant’s case, I should address the applicant’s submission that the Tribunal failed to undertake a review because it simply relied on the IDP audit information. This submission ignores the Tribunal’s having considered the applicant’s evidence of the reasons he decided to undertake the IELTS test in India, and the evidence the applicant gave about what he did in India to prepare for the IELTS test. The Tribunal identified what it was reasonably entitled to consider a significant discrepancy that was relevant to its assessment of the applicant’s assertion that it was he, rather than another person, who had sat for the IELTS test. The discrepancy related to where the applicant claimed he had taken classes to prepare for the test. On the one hand, in his letter dated 17 October 2013 to the delegate, and before the Tribunal, the applicant said he had undertaken all the classes after he arrived in India. On the other hand, after the Tribunal put to the applicant that he could not have attended all his classes in India in the period in which he said he attended, the applicant, in a post hearing submission, claimed he had done part of the classes in Australia before he left for India, and he made this error in his evidence because “he was nervous and depressed during the interview”.[65]
[65] CB147
Further, the applicant’s submission ignores what has been said of the role of the RRT that applies equally to the Tribunal. Thus, it has been said that “it is for the applicant for a protection visa to establish the claims that are made”;[66] it is “for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason”, and that the “Tribunal must then decide whether that claim is made out”;[67] the “function of the Tribunal . . . is to respond to the case that the applicant advances”; [68] and the RRT “is required to deal with the case raised by the material or evidence before it”.[69] The applicant’s submissions appear to assume that it was the Tribunal’s duty to investigate the cogency of the IDP’s audit. That assumption is incorrect. It was for the applicant to provide evidence and arguments to the Tribunal to contradict, undermine, or explain away the probative force of the IDP audit information. And it is reasonable to expect there would have been evidence available to the applicant to do that, if, as he claimed, the applicant himself had sat for the IELTS test. I have already identified the evidence it is reasonable to infer would have been available to the applicant to produce, had he in fact undertaken the IELTS test. The applicant did not provide any such evidence; and as I have already found, had the Tribunal undertaken the inquiries the applicant claims it ought to have taken it would have come into the possession of the IDP screenshot that could only have served to confirm the information the IDP provided to the Department.
[66] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [26]; (2009) 259 ALR 429 at page 436
[67] Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 (Gummow and Hayne JJ)
[68] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [78] (Kirby J)
[69] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [58] (Black CJ, French and Selway JJ)
Ground 2B – misconstruing “bogus document”
The applicant’s second ground is directed to the Tribunal’s conclusion that the Applicant’s TRF was a “bogus document” within the meaning of s.97 of the Act either because it was not genuine and, therefore, counterfeit, or had been either altered by someone who did not have the authority to alter it.[70] The expression “bogus document” is defined in s.97 of the Act to mean, among other things, a document the Minister reasonably suspects is a document that “is counterfeit or has been altered by a person who does not have authority to do so”. One ordinary meaning of “counterfeit”, when applied to writings, is “forged, not genuine, specious”.[71]
[70] CB154, [20]
[71] Oxford English dictionary, online
In his written submissions, the applicant submitted that the Applicant’s TRF was neither “not genuine”, and therefore, not counterfeit, nor altered by a person who did not have authority to do so. The applicant says nothing in support of those submissions.[72] In oral address, Mr Dobbie submitted that the Applicant’s TRF was not counterfeit because all that had occurred as a result of the IDP’s cancelling the applicant’s test result was to reset the applicant’s results. I do not accept this submission.
[72] Applicant’s Outline Submissions [23]
The Tribunal was satisfied that the information provided by IDP indicating that the applicant did not undertake the IELTS test on 30 April 2011, and that another person undertook it, was reliable and probative. Given that finding, it necessarily followed that the Applicant’s TRF that showed that the applicant had undertaken the test could only have been regarded as counterfeit; it represented that the applicant had undertaken the IELTS test on 30 April 2011 when, as the Tribunal found, the applicant did not undertake that IELTS test. In short, the Applicant’s TRF could not have been a genuine representation of that which it purported to represent, namely, that the applicant had undertaken the IELTS test referred to in the document.
This ground, therefore, fails.
Ground 4 – no evidence
The applicant submits there was no evidence on the basis of which the Tribunal could have concluded that the Applicant’s TRF was not genuine, or was altered by someone without authority. Given that I have found that the Tribunal’s conclusion was based on its finding that a person other than the applicant undertook the IELTS test, the applicant’s submission must be there was no evidence on the basis of which the Tribunal could have made such finding.
I do not accept this submission. The Tribunal relied on “the information provided from IDP, which indicates that the applicant did not undertake the IELTS test on 30 April 2011”.[73] The nature of this information bears some reflection. It is not in issue that the information came from the IDP Audit and Investigation Unit. It was reasonably open to the Tribunal to view this information as having been generated as a result of an auditing activity undertaken by an official body within IDP responsible for investigating whether the IELTS procedures are complied with. It is information to which the Tribunal was reasonably entitled to give credit, and to rely on that information unless the applicant provided evidence that the Tribunal could reasonably be satisfied contradicted or undermined it. The applicant provided some evidence – in particular, his evidence that he had gone to India to undertake coaching – but for reasons on which it was reasonably open to the Tribunal to rely, the Tribunal did not accept that that evidence contradicted or undermined the information provided by the IDP.
[73] CB154, [18]
This ground, therefore, also fails.
Ground 5 – failure to comply with s.359A of the Act
The fifth ground of application relates to the note recorded in the Departmental file note of 19 August 2013, namely, that “IDP have advised that imposter used. Photos do not match”. As I have already found in paragraph 10 of these reasons for judgment, those words are intended to be a reference to the Relevant Information (as I have defined that expression in paragraph 10 of these reasons).
The applicant submits this was information within the meaning of s.359A of the Act the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review, yet the Tribunal failed to do that which s.359A(1) of the Act required, or that which s.359AA(1)(b) permitted, the Tribunal to do in relation to the information. In support of his submission that the Tribunal relied on the Relevant Information, the applicant relies on the Tribunal stating at the hearing that it would have regard to all of the evidence that was before the Department; and on the Tribunal stating, in its reasons for decision, that it was “satisfied that the information provided from IDP, which indicates that the applicant did not undertake the IELTS test on 30 April 2011 and that it was undertaken by another person, is reliable and probative”.[74]
[74] CB154, [18]
The Minister submits the Tribunal was not required to comply with s.359A of the Act because of s.359A(4)(b). That paragraph provides that s.359A of the Act does not apply to information “that the applicant gave for the purpose of the application for review”. The Minister submits the Relevant Information was contained in the delegate’s decision record which the delegate provided to the applicant under cover of a letter dated 26 March 2014, and the applicant had provided the delegate’s decision record to the Tribunal when the applicant lodged his application for review. The Minister submits the delegate identified the Relevant Information in the following passage from the delegate’s decision record (Relevant Passage):[75]
[75] CB102
This TRF shows a photo of you and indicates the following test results:
Listening: 8.5; Reading: 7.0; Writing: 6.0; Speaking: 6.5
Overall band score: 7.0
On 15 September 2011, the Department received information from International Development Program Education Pty Ltd (IDP) Audit and Investigation Unit for IELTS indicating that following a review of the test, it appears that another person, not you, undertook the test. In light of this information your test result dated 12 May 2011 was cancelled by IDP.
The first task is to identify the intended referent of the word “information” as used in the Relevant Passage. In my opinion, the delegate intended “information” at the very least to refer to a substantial part of the Relevant Information, namely, the IDP’s having informed the Department that the IELTS test result of 30 April 2011 had been cancelled because an imposter undertook the test, and to the photograph of the person who had undertaken that test that was accessible on the IELTS website. Further, the Relevant Passage indicates that the delegate must also have had regard to the photograph or photographs of the applicant in ICSE. The delegate could have concluded that the information IDP provided to the Department showed that a person other than the applicant had undertaken the IELTS test on 30 April 2011 only after the photograph of the person who undertook the test that was available to be accessed on the IELTS website could be compared with the photograph or photographs of the applicant the Department held. Thus, in my opinion, the delegate intended to refer to all of the Relevant Information.
The next question is whether the Relevant Information, and in particular, that part of the Relevant Information was identified by the Relevant Passage. In my opinion, the Relevant Passage did not identify the Relevant Information. The Relevant Passage only referred to “information” that led to the IDP cancelling the IELTS test result of 30 April 2011; it did not, however, identify that information. That is, the Relevant Passage did not identify the report the Department received on 8 September 2011 from IDP that recorded the IELTS test result of 30 April 2011 had been cancelled, and that it had been cancelled because an imposter undertook the exam.[76] Nor did the Relevant Passage disclose that IDP made available to the Department, and in that sense, had provided to the Department, a photograph of the person who purportedly undertook the IELTS test on 30 April 2011, and that the person in that photograph did not match the person depicted in the photograph or photographs the Department maintained of the applicant. Thus, s.359A(4)(b) of the Act does not apply to exclude s.359A of the Act.
[76] Affidavit of C See-Man Yu affirmed 11 March 2015, Annexure C
Whether or not, therefore, s.359A of the Act applies to the Relevant Information depends, in the first instance, on whether the Relevant Information is “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review”. I considered the meaning of the equivalent expression in s.424A(1) of the Act in SZQQA v Minister for Immigration & Anor. I there made the following points:[77]
a)The “information” to which s.424A(1) of the Act applies must be information the Tribunal has in its mind.
b)The “information” must be in the Tribunal’s mind as part of a chain of reasoning – as a premise in an argument – the conclusion of which is the affirmation of the decision under review.
c)The Tribunal must have in its mind the chain of reasoning of which the information forms part in advance of the Tribunal’s determination of the application for review before it.
d)The Tribunal intends to affirm the decision under review on the basis of the chain of reasoning of which the information forms part. It is that intention that triggers the obligations imposed by s.424A(1) of the Act.
e)The Tribunal’s intention is conditional. Before the Tribunal can act on its intention, and assuming the information does not fall within the category of information described in s.424A(3) of the Act, the Tribunal must do that which s.424A(1) of the Act requires the Tribunal to do. That is, the Tribunal must give the applicant particulars of the information, it must ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of its being relied on in affirming the decision under review, and invite the applicant to comment or respond.
f)If the applicant comments or responds to the invitation, the Tribunal must consider the comments and response, before it considers whether to carry through with its intention to rely on the information.
[77] SZQQA v Minister for Immigration& Anor [2014] FCCA 1923 at [9]
I also made some observations in SZQQA on the meaning of “information” in s.424A of the Act. I there said:[78]
[12] A formulation that is often applied to determine whether any given information is “information” to which s.424A(1) applies is that given by the High Court in SZBYR and Another v Minister for Immigration and Citizenship and Another.[79] In that case, the High Court held that portions of a statutory declaration did not constitute “information” for the purposes of s.424A(1) of the Act because they “did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations”.[80] And in Minister for Immigration and Citizenship v SZLFX and Another, the High Court said that for s.424A(1)(a) to be engaged, “the material in question should in its terms contain a rejection, denial or undermining of the review applicant’s claim to be a refugee”.[81]
[13] The presence of the words “in their terms” in the High Court’s formulation suggests that to fall within s.424A of the Act the information must on its face disclose a rejection, denial or undermining of a claim. That, in turn, suggests that the information must contain some reasoning which links the information to the claim. But that cannot be what the High Court intended the expression to cover.
[14] In my opinion, the information that is caught by s.424A of the Act is “evidentiary material or documentation” which the Tribunal provisionally considers to be the reason or a part of the reason for affirming the decision under review. Thus, it must be evidence on the basis of which it is open to the Tribunal to conclude that it contradicts or undermines an essential element of an applicant’s claim for protection, or evidence in combination with other evidentiary material on the basis of which it is open to the Tribunal to find a fact which by itself contradicts or undermines an essential element of an applicant’s claim for protection.
[15] Accordingly, whether the information which the applicant claims, and the Minister disputes, is information to which s.424A(1) applied depends on whether the Tribunal considered either item of information to be evidence that by itself contradicted or undermined an essential element of the applicant’s claim or was evidence that, in combination with other evidence the Tribunal accepted, led to the making of a finding of fact that by itself contradicted or undermined an essential element of the applicant’s claim. That requires an analysis of the applicant’s claims, and the Tribunal’s reasons for affirming the delegate’s decision, to which I now turn.
[78] SZQQA v Minister for Immigration& Anor [2014] FCCA 1923 at [12]-[15]
[79] (2007) 235 ALR 609
[80] (2007) 235 ALR 609 at page 615 ([17])
[81] (2009) 238 CLR 507 at page 513 ([22])
Counsel for the Minister does not submit the Relevant Information was not “information” within the meaning of s.359A of the Act. Counsel submits, however, it cannot be shown that the Tribunal at any time thought the Relevant Information would be the reason, or a part of the reason, for affirming the delegate’s decision. Counsel submits that the passages on which the applicant relies does not establish the Tribunal so considered the Relevant Information. I do not accept these submissions.
In the first of the two passages in the Tribunal’s reasons for decision on which the applicant relies, the Tribunal said it would have regard to all of the evidence that was before the Department. Counsel for the Minister is correct in his submission that to consider a range of things does not necessarily mean the Tribunal considered that each of those things would be the reason or a part of the reason for making the decision to affirm the delegate’s decision.[82] I would not, therefore, be prepared to infer from the Tribunal’s statement at the hearing that it would have regard to all of the evidence that was before the Department that at any stage of its review the Tribunal considered that the Relevant Information would be the reason or a part of the reason for affirming the delegate’s decision. The second passage on which the applicant relies, however, calls for different consideration.
[82] T35.35
The passage is contained in the Tribunal’s reasons for decision. The Tribunal stated that it was “satisfied that the information provided from IDP, which indicates that the applicant did not undertake the IELTS test on 30 April 2011 and that it was undertaken by another person, is reliable and probative”.[83] In my opinion, the “information” to which the Tribunal intended to refer at the very least includes a substantial part of the Relevant Information, namely, the information contained in the report the Department received on 8 September 2011 that the IDP had cancelled the applicant’s IELTS test result of 30 April 2011 because an imposter undertook the exam, and the photograph of the person who undertook the IELTS test on 30 April 2011 which an officer from the Department accessed on the IELTS website by using the Applicant’s TRF. This, together with photographs of the applicant the Department held in ICSE, is the only information that could reasonably be supposed to have been considered by the Tribunal as indicating that the applicant did not undertake the IELTS test of 30 April 2011. This inference is reinforced by the Tribunal’s concluding that the matters on which the applicant relied did not “overcome the evidence provided from IDP which indicates that the applicant did not undertake the test”.[84] The only evidence IDP provided is that the IELTS test results of 30 April 2011 had been cancelled because an imposter had undertaken the test, and access to a photograph of the person who in fact undertook the test. This not only shows that the Tribunal considered that this part of the Relevant Information would be the reason or a part of the reason for affirming the delegate’s decision; it also shows that the Tribunal did in fact rely on that information as the reason or as a part of the reason for affirming the delegate’s decision.
[83] CB154, [18]
[84] CB154, [18]
Further, accepting as correct what I found in the previous paragraph, it must follow that, in concluding the Tribunal was satisfied “the information provided from IDP, which indicates that the applicant did not undertake the IELTS test on 30 April 2011 and that it was undertaken by another person, is reliable and probative”, the Tribunal must have had regard to the fact that there were photographs of the applicant in the possession of the Department that did not match the photograph of the person who, according to the IELTS website, had undertaken the IELTS test on 30 April 2011. I do not find the Tribunal necessarily accessed those photographs; it may have simply relied on the Departmental file note that such photographs did not match the photograph of the person who had undertaken the IELTS test on 30 April 2011. The inference is available to be drawn, and I do so infer, that the Tribunal acted in the belief that the Department held a photograph or photographs of the applicant which did not match the person depicted in the photograph that was accessible from the IELTS website.
Counsel for the Minister also submitted that what the Tribunal definitely considered to be a reason or a part of the reason for affirming the delegate’s decision was the delegate’s decision itself. I do not accept that submission. The Tribunal at the very least relied on the information the IDP provided to the Department which I have already identified. If, contrary to my conclusion, the Tribunal did not rely on the information provided by the IDP, but instead relied on the delegate’s decision, the Tribunal will have failed to have considered for itself whether it was not satisfied the applicant had undertaken the IELTS test and, for that reason, the applicant had not provided to the Minister a bogus document. In those circumstances, the Tribunal would not have undertaken the review it was required to undertake under s.348 of the Act and would, for that reason, have made a jurisdictional error.
In my opinion, before it made its decision, the Tribunal considered the Relevant Information was information that would be the reason or a part of the reason, for affirming the delegate’s decision. Subsection 359A(1) of the Act, therefore, required the Tribunal to give to the applicant clear particulars of the Relevant Information. At the very least, that required the Tribunal to identify the report the Department received from IDP on 8 September 2011, and the photograph of the person which, according to the IELTS website, actually undertook the IELTS test on 30 April 2011. It also required the Tribunal to give clear particulars of the photograph or photographs of the applicant which I have concluded must have been compared with the photograph accessed from the IELTS website of the person who undertook the IELTS test on 30 April 2011. The Tribunal did not provide such particulars, and necessarily did not, therefore, ensure, as far as was reasonably practicable, that the applicant understood why the Relevant Information was relevant to the review, and the consequences of the Tribunal relying on the Relevant Information to affirm the delegate’s decision. The Tribunal, therefore did not comply with s.359A(1) and, for that reason, it made a jurisdictional error.
Ground 5, therefore, is made out.
Conclusion and disposition
The applicant has not succeeded on the first four grounds of application. He has succeeded, however, on the fifth ground. The information provided by IDP was a reason or a part of the reason the Tribunal relied on to affirm the delegate’s decision. The information was a communication from IDP that it had cancelled the IELTS test results of 30 April 2011 because an imposter had undertaken the test together with a photograph of the person who had undertaken the test. The Tribunal did not provide to the applicant clear particulars of that information, as it was required to do under s.359A(1) of the Act. Nor did the delegate in its letter dated 19 August 2013 provide to the applicant particulars of the information IDP had provided to the Department.
I propose, therefore, to order that the Tribunal’s decision be quashed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent, and that that Tribunal determine according to law the applicant’s application for review.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 27 May 2016
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