FEDERAL COURT OF AUSTRALIA
Salopal v Minister for Immigration and Border Protection [2018] FCA 1308
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Details
- AGLC
- Salopal v MIBP [2018] FCA 1308
- Case
- [2018] FCA 1308
- Decision Date
CaseChat Overview and Summary
The appeal in Salopal v MIBP involved a challenge to a decision of the Migration Review Tribunal (the Tribunal) which upheld a refusal to grant a visa to the appellant, Mr Salopal, on the ground that his skills assessment document was considered a "bogus document". The case raised issues regarding the interpretation of the requirement under Public Interest Criterion 4020 that there must be "no evidence" that the appellant had submitted a bogus document to the Department. The core legal issues included whether the Tribunal had erred in finding that there was no jurisdictional error and whether it had failed to consider a substantial claim made by Mr Salopal, which could have affected the outcome of the decision.
The Federal Circuit Court had previously dismissed Mr Salopal's application for judicial review of the Tribunal's decision. In its judgment, the Court of Appeal highlighted that the Tribunal did not adequately evaluate the evidence presented by three witnesses who corroborated Mr Salopal's account regarding his work hours. The Tribunal's reasoning was primarily based on its finding that Mr Salopal did not complete the required 900 hours of work, without sufficiently considering the corroborative evidence. The Court concluded that this omission constituted a jurisdictional error, as it meant the Tribunal did not properly exercise its statutory function. The Tribunal's decision was thus deemed unreasonable and illogical.
The Court of Appeal allowed the appeal, set aside the orders of the Federal Circuit Court, and remitted the matter back to the Tribunal for reconsideration. The decision emphasized the necessity for the Tribunal to adequately evaluate all relevant evidence when making its determinations. The Court granted liberty to Mr Salopal to apply for costs related to the appeal or the proceedings before the Federal Circuit Court within a specified period.
The Federal Circuit Court had previously dismissed Mr Salopal's application for judicial review of the Tribunal's decision. In its judgment, the Court of Appeal highlighted that the Tribunal did not adequately evaluate the evidence presented by three witnesses who corroborated Mr Salopal's account regarding his work hours. The Tribunal's reasoning was primarily based on its finding that Mr Salopal did not complete the required 900 hours of work, without sufficiently considering the corroborative evidence. The Court concluded that this omission constituted a jurisdictional error, as it meant the Tribunal did not properly exercise its statutory function. The Tribunal's decision was thus deemed unreasonable and illogical.
The Court of Appeal allowed the appeal, set aside the orders of the Federal Circuit Court, and remitted the matter back to the Tribunal for reconsideration. The decision emphasized the necessity for the Tribunal to adequately evaluate all relevant evidence when making its determinations. The Court granted liberty to Mr Salopal to apply for costs related to the appeal or the proceedings before the Federal Circuit Court within a specified period.
Orders
Orders of the court
1. The appeal be allowed.
2. The orders of her Honour Judge Riley made on 12 December 2017 be set aside and in lieu thereof there be orders:
(a) in the nature of certiorari, that the decision of the second respondent made on 17 July 2015 to affirm the decision of a delegate of the first respondent to refuse the appellant's application for Subclass 886 Skilled (Residence) (Class VB) visa be set aside; and
(b) in the nature of mandamus, that the matter be remitted to the second respondent differently constituted for further consideration and determination according to law.
3. There be liberty to the appellant to apply for costs orders in respect of the appeal or the proceedings before the Federal Circuit Court or both within 30 days.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Significantly, there was no separate reasoning to support any view about whether there was 'no evidence' that Mr Salopal gave to the Minister or an officer a bogus document. The Tribunal's reasoning in that regard rested only upon its finding that Mr Salopal did not complete 900 hours. It was that finding that was used to reject Mr Salopal's version of events explaining the existence of the corrected letter in the possession of Mr Amarante.Evidence advanced on behalf of Mr Salopal before the Tribunal Mr Salopal's account before the Tribunal was to the effect that he worked at Pastry Art Design on Wednesdays from 2.00‑7.00 pm, Fridays for five hours and on Saturdays for seven hours. He identified certain dates in March and April when he did not work. He also relied upon a book of notes of recipes that he said he had prepared during his time at Pastry Art Design and the fact that he had subsequently been employed for a number of years as a pastry cook being work of a kind that he would not have been able to secure if he had not received considerable instruction over many hours. As I have noted, Mr Ploumidis gave evidence to support Mr Salopal's claims before the Tribunal. He provided two statutory declarations in which he said that Mr Salopal did work the required hours of voluntary experience and that the letter was signed by Mr Ploumidis and was authentic. The Tribunal in its reasons, considered that evidence in some detail and pointed out its views as to the difficulties with that evidence for the case being advanced by Mr Salopal. However, there was other evidence concerning whether Mr Salopal had worked 900 hours at Pastry Art Design. First, there was a statement from Mr Karfut, the manager of Pastry Art Design in which he said that Mr Salopal successfully completed over 900 hours of volunteer work experience as a pastry cook from 20 January 2007 to 10 February 2008. In the statement he said 'I fully vouch for his experience in the bakery'. It provided a telephone number where he could be contacted. Second, there was a statement from Ms Pimblet as follows:I confirm that I am working at Pastry Art Design for long time and [Mr Salopal] has worked in the bakery almost one year during Jan 2007 to Feb 2008.[Mr Salopal] used to work with me in the pastry section. I taught him cake decoration, imprinting names on cakes etc. I appreciated him always about his quick learning skill. I wish him best for his future'. A mobile number was provided for Ms Pimblet. Third, there was a statement from Mr Gaur Singh who said that he worked in the Pastry Art Design Bakery during 2006 to 2008. He said that he worked with Mr Salopal 'so many times during the year 2007 to 2008. Bakery used to be extremely busy on weekends especially on Saturday. So, I used to work with [Mr Salopal] on Saturday morning shift'. He also provided a mobile number. Fourth, after a telephone call from the Tribunal, Mr Ploumidis provided a further written statement in the following terms:To clarify the way in which hours were awarded I am aware that volunteer trainees who used to work in my bakery often kept their own records and the college maintained it's own records based on the days and hours they used to attend the bakery. Volunteer trainees who used to work in my bakery were also recorded with my managers and these were checked against the College's Teachers and owners of the college records before issuing any letters.When a student would claim to have completed the hours or the College notified the bakery that the person had completed the hours I would check with my managers then report it to the relevant College. In the case of Della International and other colleges where I understand [Mr Salopal] and other students completed there [sic] Certificate III I would be notified to sign the relevant work reference.
Decision
Reasons for decision
The second submission dealt with adverse information raised by the Tribunal concerning the evidence of Mr Ploumidis. In those submissions, reliance was placed on the evidence in the three statements, particularly the statement of Mr Karfut, the manager of Pastry Art Design at the time (paras 2 and 4).Application to review the Tribunal decision Mr Salopal applied to the Federal Circuit Court to review the Tribunal's decision. On an application for the review of a decision of the Tribunal in relation to migration decisions, the Federal Circuit Court has the same original jurisdiction as the High Court: s 476(1) of the Migration Act 1958 (Cth). For present purposes, that required the identification of jurisdictional error in respect of the Tribunal decision before the Federal Circuit Court could grant relief. In order to demonstrate jurisdictional error, it must be shown that the Tribunal has acted outside its power and authority or failed to exercise its statutory responsibilities. Jurisdictional error, in the sense relevant here, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by the Migration Act: Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [23]. It is a failure to comply with one or more statutory preconditions or conditions that must be met or observed in order for the decision-maker to make a decision that is within the scope of authority which the statute confers on the decision-maker: Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23]-[24]. So, there is jurisdictional error if a repository of statutory power ventures outside the boundaries of the power entrusted by statute. The application for judicial review by the Federal Circuit Court raised five grounds and Mr Salopal was given leave to add one further ground during the course of the hearing. Although he had legal assistance in preparing the grounds of the application, Mr Salopal appeared in person at the hearing. The reasons of the Federal Circuit Court judge record that Mr Salopal had very little to say about the written grounds. The grounds raised a claim that the Tribunal fell into jurisdictional error by making a finding that was unreasonable, illogical or irrational or for which there was no evidence (ground 4). Particular (d) to that ground stated, amongst other things, that the Tribunal 'did not take into account Mr Ploumidis's evidence in relation to the Applicant was supported by the evidence of the Applicant's co‑worker Angela Plimblet and Pastry Art Manager, Michael Karfut and the Applicant's friend, Gaur Singh'. In relation to particular (d), the Federal Circuit Court judge referred to the statement by the Tribunal at [62] of its reasons (quoted above) and said that the reference to considering the entirety of the evidence appeared to be a reference to the evidence of Mr Karfut, Ms Pimblet, and Mr Gaur. (It is to be noted that there were statements provided by other witnesses that were before the Tribunal and the evidence of those witnesses was not specifically addressed by the Tribunal.)
Ratio Decidendi
Legal Principle Established
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