Rahman, Masadur v Immigration and Multicultural Affairs

[1998] FCA 1026

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW – Migration – Visa application – Criteria involve determination of applicant's "usual occupation" during the period of two years prior to application – Applicant claimed usual occupation as pastry cook and cited employment at Pizza Hut restaurant in Dhaka, Bangladesh – Applicant tendered reference certifying as to his employment – Affidavit supporting this reference but contrary information from person who claimed to be owner at a later date – Check by officer of Australian High Commission in Dhaka resulted in an identification of a photograph of another man as a photograph of applicant – Decision-maker refused application on basis she was not satisfied as to applicant's usual occupation – Whether it was open to decision-maker to be not satisfied about this.

Migration Act 1958 s 476(1)(g), (4)
Migration Regulations  reg 126, Schedule 6

MASADUR RAHMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 483 of 1998

WILCOX J
11 AUGUST 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 483 of 1998

BETWEEN:

MASADUR RAHMAN
Applicant

AND:

MINISTER FOR

IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

WILCOX J

DATE OF ORDER:

11 AUGUST 1998

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The Application be dismissed.

1. The applicant pay the respondent's costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 483 of 1998

BETWEEN:

MASADUR RAHMAN
Applicant

AND:

MINISTER FOR

IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:	WILCOX J
DATE:	11 AUGUST 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:   This is an application for judicial review of a decision by an officer of the Department of Immigration rejecting an application for a visa under regulation 126 of the Migration Regulations.  Schedule 6 of the Regulations sets out the employment qualification that must be shown by an applicant for such a visa.  The Schedule lists a succession of alternative criteria.  It is a feature of each of them that it is necessary for the decision maker to determine whether the applicant had a "usual occupation", as that term is defined in regulation 2.26, and, if so, its nature.  The definition in regulation 2.26 is as follows:

" 'usual occupation' means an occupation that the applicant has engaged in for gain or reward for a continuous period of at least 6 months during the period of 2 years immediately preceding the relevant application for a visa."

In the present case, the visa application was lodged on 12 September 1995.   Accordingly, the relevant question was the existence and nature of any usual occupation in the period between 12 September 1993 and that date.  The applicant asserted his usual occupation during that time was as a pastry cook.  In support of that assertion, he claimed to have been employed by a business known as "Pizza Hut" carried on at 39 New Elephant Road, Dhaka, Bangladesh.  He supplied a reference signed by a person who identified herself as Ferdoous Sultana and stated she was the managing director.

In an affidavit filed in this proceeding dated 9 June 1998, Ms Sultana says "Pizza Hut is a registered business farm [sic – firm]".  She says this business was established in 1991, it carries on business as a pastry shop and runs a restaurant seating approximately 60 people.  She says she is the only proprietor of the business.

Ms Sultana attached to her affidavit a copy of the reference the applicant had submitted with his visa application.  This reference states the applicant was employed as a baker and pastry cook from 22 January 1992 until 25 June 1995.  The reference heaps high praise upon him in terms of his skill, willingness to work and personality.

For reasons which do not appear, the officers of the Department who were concerned with the application decided to check Mr Rahman's claim to have worked at Pizza Hut.  They asked the Australian High Commission in Dhaka to make inquiries.  On 2 July 1997 Dawood Farhan, a visa documentation officer at the Commission, wrote to Ms Kelly Schmitt, in the Migration Section of the Department at Auckland (at which location the application had been lodged), stating "the owner of the said company Mr Nidhir Chandra Ghose confirmed on 23 June 1997, that Mr Masadur Rahman never worked for him.  The employment certificate is false".  Mr Farhan did confirm the authenticity of another document tendered by Mr Rahman, a certificate that he had successfully completed a bakery and pastry cook course at the Hotel and Tourism Training Institute at Dhaka.

The Department conveyed the contents of Mr Farhan's letter to the applicant's solicitors.  After being asked for particulars, the Department identified Mr Nidhir Chandra Ghose as their informant.  The Department emphasised to the solicitors the importance of establishing Mr Rahman's usual occupation.  In response the Department received a letter signed by a person called Anasur Rahman, who identified himself as manager of the Pizza Hut at 39 New Elephant Road, Dhaka.  This letter took the form of a certificate:

"...that the working experience reference that we provided for Mohammed Masadur Rahman is true and we apologise for giving wrong information while Australian High Commission in Dhaka had undertaken an employment check with us."

Mr Anasur Rahman offered an explanation for the wrong information: the person who was at the counter at the time of the inquiry knew Mr Masadur Rahman by his nickname, "Zaman".  I take it that Mr Anasur Rahman was saying Mr Ghose had known Mr Masadur Rahman by his nickname, Zaman, and for that reason had said he never employed him.  I have some difficulty with the fact that the informant was described by Mr Anasur Rahman as "the person who was at the counter at the time", considering Mr Ghose purported to give the information in the capacity of owner of the business.  Moreover, I am puzzled by the fact that Mr Ghose apparently claimed to have been the owner, whereas, in her affidavit, Ms Sultana claims to be the sole proprietor of the business.  It is conceivable both statements are true; may be the two people are speaking about different periods of time.

Following receipt of Mr Anasur Rahman's letter, the Department asked the High Commission in Dhaka to make further inquiries.  Apparently, Mr Farhan took a photograph from a student application file held by the High Commission.  He interviewed Mr Anasur Rahman and asked him whether the photograph he was showing him was that of Mr Masadur Rahman, apparently mentioning the name "Zaman" as well.  According to Mr Farhan, Mr Anasur Rahman said the photograph was that of Mr Masudur Rahman.  At Mr Farhan's request he certified that to be the fact.  According to Mr Farhan, it was definitely not a photograph of Mr Masudur Rahman; however, the evidence gives no clue as to the degree of similarity between the appearance of the two people.  Mr Farhan ventured the view, in a memorandum to the Department dated 7 December 1997, that the certificate that had been given regarding Mr Masudur Rahman's work was false and he had never worked for Pizza Hut.  He also said Mr Anasur Rahman is not the manager of Pizza Hut but is a simple worker, who has worked there for the last six or seven years. 

Following this letter, it was decided to refuse the visa application.  This was done on the basis the decision-maker was not satisfied as to the nature of the applicant's usual occupation.  This decision is now challenged.  The situation is really quite unsatisfactory because the issue is entirely one of fact.  It is a mystery to me why it has not been possible to obtain conclusive evidence about the matter.  It would have been possible to seek access to the employment records of the Pizza Hut and find out whether Mr Masudur Rahman is named as an employee; for example, in the wages book.  Apparently no such attempt has been made either on behalf of the applicant, although he has had solicitors acting for him throughout, or by the Australian High Commission in Dhaka.

In this situation, the basis of any attack on the decision is extremely limited. The applicant claims this case falls within s 476(1)(g) of the Migration Act 1958, namely:

"that there was no evidence or other material to justify the making of the decision."

The argument is there was no evidence before the decision-maker to justify her conclusion that she could not be satisfied that Mr Masudur Rahman was employed as a pastry cook for a period of at least six months in the period of two years immediately preceding his application. It is relevant to note that s 476(4) provides that the ground specified in section 476(1)(g) is not to be taken to have been made out unless:

"(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notes) from which the person could reasonably be satisfied the matter was established; or

(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

The contention of Mr Harvey, who appears for the applicant, is that the decision-maker made her decision on the basis of the existence of a particular fact, namely, that Mr Masudur Rahman did not work at the Pizza Hut and that fact did not exist.

There are obvious problems in applying s 476(1)(g) to a negative finding. As it seems to me, for the paragraph to apply, it has to be held there was no material before the decision-maker to justify her in declining to be affirmatively satisfied of the truth of the claim made to her on behalf of the applicant. In other words, there was no material to justify her refusal; her decision was perverse.

If I had to determine, as a question of probable fact, whether Mr Masudur Rahman was employed at the Pizza Hut during the relevant period, I would be inclined to find he was.  I say this because it is obvious he is an experienced pastry cook.  He is a young man.  In order to have the relevant experience he must have worked somewhere in the period of two years immediately before submitting his application.  I see no reason for him to conceal his true employer.  But the case cannot be disposed of on my assessment of the probabilities.  The question is whether or not there was material to justify the decision-maker in declining to be satisfied.

It can, I think, be argued that the information obtained from Mr Ghose did not necessarily negative the applicant's claim or Ms Sultana's reference.  Possibly Mr Ghose acquired the business after June 1995, so it could be correct to say both that the applicant worked in the business until that date, and that Mr Ghose never employed him.  It is also possible to dispose of the information obtained from Mr Ghose on the basis that he was the person who was confused by the nickname Zaman, and it was his information that was being corrected by Mr Anasur Rahman. 

It is more difficult to dispose of the information from the Australian High Commission about Mr Anasur Rahman's wrong identification of the photograph.  According to that information, Mr Anasur Rahman has been employed at the shop for some six or seven years, that is to say, since about 1991 or 1992.  If that is so, and the applicant worked there after September 1993, Mr Anasur Rahman would have worked with him in a small business, a restaurant seating about 60 people.  He must have got to know him well; yet, according to the information coming from Mr Farhan, he identified somebody else as Masudur Rahman.  There are a number of possible explanations for this.  One is that Mr Anasur Rahman is telling lies to assist Mr Masudur Rahman; he is party to a false certificate and, when put to the test of identifying the person in the photograph, he assumed he was being shown a photograph of Mr Masudur Rahman and falsely certified it.  What motive he might have for such behaviour is not apparent to me, but it is a possible explanation of the misidentification.

A less sinister explanation is that Mr Anasur Rahman simply made a mistake.  The likelihood of that being the case is a matter for assessment and the assessment would be assisted by a comparison between the photograph that was certified by Mr Anasur Rahman and a photograph of the applicant.  Possibly the two men look alike: if so, a mistake would be understandable, even for somebody who well knew the applicant.  On the other hand, if they are of very different appearance, scepticism might be warranted.  As I say, it is not necessary for me to reach a conclusion about this matter.  Mr Harvey has to demonstrate that a decision not to be satisfied was one unsupported by any material.  Having regard to Mr Farhan's report as to Mr Anasur Rahman's incorrect photographic identification, it is impossible to say there was no material that would justify a decision not to be satisfied.  That being so, the only ground of review advanced by the applicant must fail. 

I reach this conclusion with regret.  If the matter had been better handled, it might not have been necessary to come to court; it certainly would not have been necessary to dispose of the case on a highly technical basis that depends upon the restricted nature of the available ground of review.  It ought to have been possible for the parties, or at least one of them, to undertake a proper investigation and establish Mr Masudur Rahman's work history beyond any doubt.  Perhaps it is still not too late for a sensible course to be taken.  I note Mr Masadur Rahman is now in Australia and has apparently been working satisfactorily for some time as a pastry cook.  It seems almost ludicrous that his future should be determined on the basis of inadequate information about an ascertainable matter.  However, this is a matter for the parties to resolve.  I must conclude that the ground of review is not made out.  The application must be dismissed. 

The decision of the court will be that the application is dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:            11 August 1998

Counsel for the Applicant:	Ian Harvey
Solicitor for the Applicant:	Goldsmiths Lawyers
Counsel for the Respondent:	Neil Williams
Solicitor for the Respondent:	Australian Government Solicitor