Salopal v Minister for Immigration
[2017] FCCA 3081
•12 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SALOPAL v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3081 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – subclass 866 Skilled (Residence) (Class VB) visa – public interest criterion 4020 – whether there was any evidence before the Tribunal that the applicant had submitted a bogus document – applicant providing a skills assessment from Trades Recognition Australia based on a work reference from Pastry Art Design – that employer being involved in the fraudulent work reference scheme created by Carmine Amarante. |
| Legislation: Migration Act 1958, ss.5(1), 359A, 359AA, 375A Migration Regulations 1994, Schedule 4, public interest criterion 4020 |
| Cases cited: Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640; [2014] FCA 640 |
| Applicant: | HARPREET SINGH SALOPAL |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1874 of 2015 |
| Judgment of: | Judge Riley |
| Hearing dates: | 5 October 2017 and 13 and 20 November 2017 |
| Date of last submission: | 20 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 12 December 2017 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Solicitors for the Applicant: | None |
| Counsel for the First Respondent: | Liam Brown |
| Solicitors for the First Respondent: | DLA Piper Australia |
| Counsel for the Second Respondent: | None |
| Solicitors for the Second Respondent: | DLA Piper Australia |
ORDERS
The application filed on 14 August 2015 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1874 of 2015
| HARPREET SINGH SALOPAL |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a subclass 866 Skilled (Residence) (Class VB) visa.
One of the criteria for the grant of the visa was that the applicant meet public interest criterion 4020. That criterion relevantly provided as follows:
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister … 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) …
…
(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.
The applicant applied for the visa on 20 September 2008. He submitted in support of his application for the visa a skills assessment dated 7 March 2008 from Trades Recognition Australia (CB28). It indicated that the applicant had done the required 900 hours of relevant work experience. The applicant claimed to have done his work experience at Pastry Art Design Pty Ltd. The director of that company was Emmanuel Ploumidis.
On 11 July 2012, a delegate of the Minister sent the applicant an invitation to comment on certain information. The letter set out the requirements of public interest criterion 4020 and said that there was evidence that the applicant had provided a bogus document to the Minister. The letter noted that the applicant had provided a skills assessment to the Minister and said:
On 4 November 2011, a Carmine Amarante pleaded guilty to the manufacture and sale of work documents matching the ones submitted to Trades Recognition Australia (TRA) to obtain your skills assessment. Amarante has admitted the documents were fraudulent in content and that they were created to assist you to apply for permanent residence in Australia.
The delegate’s letter also attached various documents from Mr Amarante’s court proceedings, including a summary of facts, a summary of a taped record of interview, an employer list which included Pastry Art Design and Mr Amarante’s statement to the Australian Federal Police regarding Pastry Art Design.
The gist of Mr Amarante’s statements to the police was that he paid employers, including Mr Ploumidis of Pastry Art Design, between $300 and $500 per student to give false work references and to falsely answer questions from the authorities about the students’ work experience.
On 31 July 2012, the applicant provided a written response to the delegate’s letter saying that he had done 900 hours of work experience with Pastry Art Design. He attached a number of documents including a statutory declaration from Mr Ploumidis dated 23 May 2012, which said that:
a)the applicant had done 914 hours voluntary work experience at Pastry Art Design during the period 20 January 2007 to 10 February 2008; and
b)the work reference letter submitted to Trades Recognition Australia was authentic.
The delegate concluded that the skills assessment submitted by the applicant was a bogus document. The delegate considered whether the requirements of public interest criterion 4020 should be waived, but decided they should not. The delegate refused to grant the visa.
The applicant then sought review by the Tribunal. Following the lodgement of his application, the applicant appointed Carina Ford as his solicitor and migration agent.
Ms Ford attended the Tribunal hearing with the applicant. The applicant gave evidence in person. Mr Ploumidis gave evidence by telephone. The Tribunal summarised their evidence in its reasons for decision. The Tribunal declined to take evidence from Della International College (“Della”) for reasons which it gave in its reasons for decision.
Following the Tribunal hearing, on 12 June 2015, the Tribunal sent the applicant a letter under s.359A of the Migration Act 1958 (“the Act”), which said that:
You provided to the Tribunal a copy of the Pastry Art Design reference letter, signed by Mr Ploumidis and dated 27 February 2008, on the basis of which TRA issued the successful skills assessment. It states, among other things, that you completed 914 hours of work as a pastry cook, from 20 January 2007 and 10 February 2008.
The Pastry Art Design telephone number and ABN which appear on this letter are incorrect. The telephone number is 9415 7018 instead of 9415 7013, the ABN 68 463 963 266 instead of 68 463 903 250.
At the hearing, when asked about the reason why a very similar reference letter may have been found on the premises of a certain Mr Carmine Amarante, you suggested that Mr Amarante may have obtained your name and details from the owners of, or other teachers at, Della International College where he was a teacher and you were a student up until September 2007. Thus, he might have had in his possession references for genuine applicants, including you, who completed 900 hours of work.
Your written evidence (paragraph 8 of his [sic] statement of 2 June 2015) was that in early February 2008 you told Mr Ploumidis that you had completed 900 hours of work and asked for your reference. Mr Ploumidis checked with the manager at Pastry Art Design and agreed to write the letter. You contacted him again on 29 February 2008. Mr Ploumidis told you that the letter ‘had been sent to the College’. There was no indication in your evidence that Mr Ploumidis had to check with Della to confirm that you had completed 900 hours of work. Rather, Della needed to confirm that you had ‘covered all the necessary duties and tasks which were necessary by their coursework’. Your oral evidence at the hearing was also that you personally – not Della or SGI – kept a record of the hours worked.
The particulars of the information are:
Carmine Amarante, a former teacher at Della International College, provided a statement to the Australian Federal Police on 21 April 2011. Among other things he said:
3. The information I provided is of my own free will and no promise, threat or inducement was held out to me to provide this information. In addition to this I understand that I do not have to say or do anything but that anything I do say or do may be used as evidence.
…
5. I was previously employed at Della International College in Melbourne from around the beginning of 2006 until November or December 2007.
…
11. AFP [Australian Federal Police] and DIAC investigators located about 1025 documents on a USB stick I possessed, although a number of them were duplicates. Over 600 individuals are named in these documents. I can confirm that I falsified of these work references by creating the businesses’ letterheads and using the written job descriptions that I obtained from various migration agents.
…
27. All the employers knew that the students weren’t going to complete the full 900 hours, as the students had already paid for the reference prior to commencing any voluntary work experience. I had an agreement with all the employers that they would verify false employment claims if TRA or DIAC checked.
In a statement made by Mr Amarante on 7 December 2010 he acknowledged that some of the students ‘were putting in a few hours’, but he said, at paragraph 22, that both the owner of Pastry Art Design and he ‘both knew that the students weren’t going to complete the full 900 hours at Pastry Art Design. This was because the students had paid for the reference and knew that Ploumidis would verify their hours to TRA.’
On 29 May 2015 the Department provided to the Tribunal a copy of a document entitled ‘Detailed Employment letter – Mr Harpreet Singh (DOB: 14/04/1980)’. It has the logo of Pastry Art Design and it contains the same total hours of work and the same dates as the reference letter provided to the TRA. It was found on a USB stick belonging to Mr Amarante. It seems to be identical to the one provided to TRA, except it is not signed and it contains Pastry Art Design’s correct telephone number and ABN and minor formatting differences. (citation omitted)
At the hearing the Tribunal took evidence from Mr Ploumidis. When asked how he could remember the exact dates of your work experience at Pastry Art Design, he said that the college – not you – approached him directly when you had done 900 hours. He explained that it was the colleges that kept attendance records rather than individual students.
The witness said that he was ‘pretty sure’ that you were a student at Della International College. When asked specifically if you may have moved from another college he said ‘not that he could recall’. The Tribunal put to the witness that in late 2007 you had moved from Della to another education provider and asked whether Della or the other college would have kept records of your work experience. He said that each college had its own teachers; but as far as he could remember you were at Della. The Tribunal asked who at Della would have kept a record of your hours of work with Pastry Art Design. He said Amanjot and John, the owners of Della. He claimed it was ‘impossible’ that a reference letter would go through Mr Amarante.
This information is relevant to the review because it may lead the Tribunal to find that you did not work at Pastry Art Design because
(1) Mr Amarante pleaded guilty in relation to all the references found in his possession; he did not claim that any of them were genuine;
(2) your evidence and Mr Ploumidis’ evidence was inconsistent as you claimed that you kept a record of your hours of work at Pastry Art Design while he claimed that Della kept a record and contacted him once you had done 900 hours;
(3) by February 2008 when you allegedly finished working at Pastry Art Design you were no longer a student at Della, you had already completed the Food Processing course, and Mr Amarante was no longer a teacher at Della. Therefore, it makes no sense that the Pastry Art Design reference would have been sent to Della either in order to confirm 900 hours of work (Mr Ploumidis’ explanation at the hearing), nor to confirm that you ‘covered all the necessary duties and tasks which were necessary by their coursework’ (your explanation at paragraph 8 of your statement of 2 June 2015). Consequently, if there was no reason for the reference letter to be sent to anyone at Della, it could not have been forwarded from the owners of, or teachers at, Della to Mr Amarante.
The above adverse information may lead the Tribunal to find that the reason why Mr Amarante had in his possession an almost identical reference letter to the one you provided to TRA was because you (either alone or together with Mr Ploumidis) asked for a false reference letter without completing 900 hours of work.
If accepted, this would in turn lead the Tribunal to conclude that the skills assessment issued to you on 7 March 2008 is a bogus document as defined within s.5(1) of the Act, in particular subparagraph (c) of the bogus document definition, as the Tribunal would reasonably suspect that the skills assessment document was obtained because of a false or misleading statement.
If the above is accepted, this would lead the Tribunal to find that you do not satisfy PIC 4020(1). Subject to the Tribunal deciding to exercise favourably the waiver under PIC 4020(4), this would cause the Tribunal to determine that you do not meet PIC 4020, which is a mandatory requirement contained within cl.886.225 of Schedule 2 to the Regulations. This would accordingly be the reason or part of the reason for affirming the decision of the delegate under review.
The Tribunal summarised in its reasons for decision the applicant’s response.
The Tribunal accepted that the applicant did some work at Pastry Art Design. However, the Tribunal did not accept that the applicant had completed at least 900 hours of relevant work experience. The Tribunal considered that the skills assessment the applicant provided to the Minister was a bogus document and that the applicant did not meet public interest criterion 4020.
The Tribunal considered whether the requirements of public interest criterion 4020 should be waived. However, the Tribunal considered that they should not. Consequently, the Tribunal affirmed the delegate’s decision.
The proceedings in this court
The applicant was assisted by Carina Ford Immigration Lawyers in preparing the application to this court. It was filed on 14 August 2015. However, the applicant’s solicitors withdrew from the record on 20 July 2016. The applicant appeared without the benefit of legal representation at the final hearing before this court. He relied on each of the five grounds in the application prepared by his former solicitors and, with leave, added one ground during the course of the hearing. The applicant did not file written submissions and had very little to say about any of the five grounds in the application as filed. The ground added during the course of the hearing necessitated two adjournments, the filing of additional material and the cross-examination of a witness.
Ground 1
The first ground of review in the application filed on 14 August 2015 is:
The Tribunal failed to comply with s. 359A of the Migration Act 1958 (“Act”).
Particulars
(a)The Tribunal committed jurisdictional error by failing to give, in accordance with s. 359A of the Act, clear particulars of the following documents:
(i) The statement made by “CA” to the Australian Federal Police on 21 April 2011.
(ii) The sworn statement made by “CA” on 7 December 2010.
(iii) The Agreed Summary of Material Facts prepared for the criminal case against “CA”.
These documents were given by the delegate to the applicant as attachments to the delegate’s letter dated 11 July 2012.
The statement made by “CA” to the Australian Federal Police on 21 April 2011 is at CB91 to CB94 and is described in the delegate’s letter as “Amarante – AFP Employer Statement – Pastry Art Design”.
The sworn statement made by “CA” on 7 December 2010 is at CB85 to CB89 and is described in the delegate’s letter as “Pastry Art Design Statement”.
The agreed summary of material facts prepared for the criminal case against “CA” is at CB77 to CB84 and is described in the delegate’s letter as “Amarante Summary of Facts – Pastry Art Design”.
As the delegate had given copies of these documents to the applicant, it was not necessary for the Tribunal to give copies of them to the applicant again, or for the Tribunal to otherwise give the applicant clear particulars of them.
Nevertheless, the Tribunal did explain to the applicant during the hearing the gravamen of the various statements made by Mr Amarante. The Tribunal said at paragraph 24 of its reasons for decision:
Under s.359AA of the Act the Tribunal put to the applicant adverse information. The Tribunal advised that, if accepted, and subject to PIC 4020(4), it would be the reason or part of the reason for affirming the decision under review. The Tribunal reminded the applicant that there is an order of the County Court that is still in force. The Tribunal put the following information to the applicant:
·An investigation was conducted into Mr Carmine Amarante, formerly a teacher at Della International College. Mr Amarante admitted to being involved in creating fraudulent documents for skilled migration purposes which included work reference letters from approximately 40 different employers. Mr Amarante gave a police statement where he stated that he created these fraudulent documents for students to use in their attempts to obtain “PR” (permanent residency) in Australia. He stated that he created the false work reference letters to show that the students had completed 900 hours of work in a trade.
·According to the ‘Agreed Summary of Material Facts’ prepared for the criminal case the fraud allegedly took place during the period 1 November 2006 and 29 September 2009, and allegedly involved the creation of hundreds of false documents.
·The period when the applicant claimed to have undertaken work experience at Pastry Art Design in 2007-2008 coincides with the period when Mr Amarante was engaged in fraudulent activities.
·In a sworn statement, dated 7 December 2010, Mr Amarante admitted to the creation of false work references so that students could obtain a skills assessment and permanent residence in Australia.
·In relation to Pastry Art Design Mr Amarante stated the following:
…
12In 2007 I gave Ploumidis a telephone call and said ‘I have some students asking me for work experience to obtain 900 hrs for TRA and I will give you $350 cash per student’ He agreed. He knew what I was talking about and had a good idea of what the arrangement was. We spoke about what to say if TRA or DIAC rang to check a student’s work experience, but he already had a fair idea what to say. Ploumidis had previously shown me a copy of the work reference template for Pastry Art Design. Ploumidis knew that the 900 hrs was to count towards permanent residence.
13I believe that a few of the students that I arranged the work references for actually worked for Pastry Art Design, but do not know how many hours they completed.
…
19In regards to Pastry Art Design most of the time I would record the dates of work experience in the reference letter prior to the student starting as they usually wanted the letter upfront in exchange for their cash payment.
20I usually did 3 copies of the work reference letter giving Ploumidis one, the student one and one for myself.
…
22Ploumidis and I both knew that the students weren’t going to complete the full 900 hours at Pastry Art Design. This was because the students had paid for the reference and knew that Ploumidis would verify their hours toTRA. I did hear from some of the students, however that they were putting in a few hours.
·During the course of this investigation a search warrant was executed on Mr Amarante’s premises that resulted in the seizure of a USB memory stick and a large number of work references.
·On 29 May 2015 the Department provided to the Tribunal a copy of a document entitled ‘Detailed Employment letter – Mr Harpreet Singh (DOB: 14/04/1980)’. It has the logo of Pastry Art Design and it contains the same dates as the applicant has claimed – 20 January 2007 to 10 February 2008. It also states that he completed 914 hours of work. It was found on a USB stick belonging to Mr Amarante. It seems to be identical to the one provided to TRA, except it is not signed. (citation omitted)
From the Tribunal’s reasons for decision, it is clear that the Tribunal then:
a)gave the applicant a copy of the work reference in respect of him found at Mr Amarante’s residence;
b)explained why the information was relevant to the review;
c)explained that it may be a reason for affirming the delegate’s decision;
d)confirmed with the applicant that he understood the information, its relevance, and its potential consequences;
e)invited the applicant to comment on or respond to the information;
f)informed the applicant that he could request time to consider the information and his comment or response; and
g)gave the applicant the brief adjournment that he sought.
In this way, the Tribunal complied with s.359AA of the Act. The applicant did not specify any particulars of the documents that the Tribunal failed to provide to the applicant. The Tribunal gave the applicant all the necessary particulars of the documents. In any event, the delegate had provided copies of the entire documents to the applicant so it was unnecessary for the Tribunal to repeat the exercise. Ground 1 is not made out.
Ground 2
The second ground of review in the application filed on 14 August 2015 is:
The Tribunal failed to make an obvious inquiry about a critical fact the existence of which is easily ascertained (see Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [65][1]).
[1] There is no [65] in the reasons for decision.
Particulars
(a)The Tribunal has the power, under s. 359, to seek any information it considers relevant.
(b)The Tribunal failed to make obvious inquiries into critical facts that could have been easily attained by seeking information from the Applicant’s former provider, Della, and from the Applicant’s former employer.
(c)The Tribunal acknowledged that it had not subpoenaed Della International in relation to whether they kept records of the Applicant’s work experience at the time and whether they would have needed to ‘tick off’ the Applicant’s work experience hours before Mr Ploumidis could sign the reference letter (see [42]). The Tribunal states that the Applicant has failed to pursue this evidence (see [42]). The Tribunal did not make any attempt to seek this information, instead choosing to draw an adverse inference from the Applicant’s failure to seek or provide this information from Della.
(d)The Tribunal noted that while the Applicant’s employer had supported some work experience students in their claims of having worked for him and had not supported others, this did not evidence that all students he supported did work for him. The Tribunal did not inquire with the employer as to why he did and did not support some work experience students. This was a critical fact to assessing whether the employer’s support of the Applicant was evidence of the genuine nature of the Applicant’s work experience.
(e)The Tribunal also acknowledged that they had failed to summons “CA” to give evidence at the Applicant’s hearing. The Tribunal could have taken evidence from “CA” to confirm whether any of the reference letters on his USB were genuine given that he was never questioned specifically on this and given the Applicant put forward reasonable submissions regarding the potential for some of the reference letters on his USB to have been genuine (see [56]).
This ground hinges on the High Court’s decision in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; (2009) 259 ALR 429; (2009) 83 ALJR 1123; [2009] HCA 39), where the majority of the court said at [25] and [26]:
25.Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that. (emphasis added) (citation omitted)
26.The first reason is that there was nothing on the record to indicate that any further inquiry by the Tribunal, directed to the authenticity of the certificates, could have yielded a useful result. There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI’s solicitors to the tribunal’s letter of 14 January 2008 itself indicated the futility of further inquiry. There was nothing that SZIAI or his solicitors were able to add, beyond a bare denial of what appeared in the National Ameer’s letter. For these reasons there is no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal’s decision was infected by jurisdictional error.
The basic position in migration matters is that it is for an applicant to make out her or his own case. Notwithstanding that, the High Court has said that it may be that a jurisdictional error could arise from the Tribunal’s failure to make an obvious inquiry about a critical fact the existence of which is easily ascertained. It is implicit in that statement that the obvious inquiry would produce a simple and conclusive answer about the critical fact.
In the present case, the applicant firstly takes issue with the Tribunal not issuing a subpoena to Della to find out whether it kept records of the applicant’s work experience. That proposition only needs to be stated to see that the subpoena would not necessarily have produced a conclusive answer. Della could only have gained its information about the applicant’s working hours from another source, such as Mr Ploumidis. His evidence was already under a cloud, because of Mr Amarante’s evidence. Consequently, a subpoena to Della about its records of the applicant’s work experience would not have met the SZIAI criteria.
In addition, at the relevant time, the applicant had ceased to be a student at Della. It would thus be surprising if Della had kept work experience records for its former student. In other words, contacting Della to find out the details of the applicant’s work experience was not an obvious enquiry.
The applicant also takes issue with the Tribunal not issuing a subpoena to Della to find out whether it needed to “tick off” the applicant’s work experience hours before Mr Ploumidis could sign the reference letter. The Tribunal did not accept that it was logical that Della would have been required to “tick off” the applicant’s work experience hours. The Tribunal noted in paragraph 41 of its reasons for decision that the applicant and Mr Ploumidis had not given a persuasive explanation of why Della would have kept records of the applicant’s work experience, especially as he had previously ceased to be a student at that college. The Tribunal also noted that the applicant had not approached Della himself to obtain his attendance records.
The Tribunal noted at paragraph 44 of its reasons for decision that the applicant only suggested that Della might have his work experience records, but produced no evidence that Della did keep such records. In any event, the Tribunal considered that the genuineness of any such records would still be in issue and thus the requirements SZIAI would not be satisfied.
In my view, the Tribunal was not required by SZIAI to make enquiries about whether Della was required to “tick off” the applicant’s work experience. Della could only “tick off” the applicant’s work experience if Della had information about the hours the applicant had worked, and Della could only have obtained that information from another source, such as Mr Ploumidis, whose evidence was under a cloud because of Mr Amarante’s evidence. As such, the information did not meet the SZIAI criteria.
The applicant also took issue with the Tribunal not asking Mr Ploumidis why he said that some of his work experience students, including the applicant, were genuine while others were part of the fraudulent scheme created by Mr Amarante. Mr Ploumidis gave evidence by telephone to the Tribunal. Clearly, any answer that Mr Ploumidis gave to that proposed question could not have been conclusive as his credibility was in question as a person who had participated in the fraudulent scheme created by Mr Amarante. As such, the proposed question does not meet the SZIAI criteria.
The applicant also took issue with the Tribunal not issuing a summons to Mr Amarante to take evidence from him to confirm whether any of the reference letters on his USB were genuine. In my view, this was not an obvious enquiry. It makes no sense that Mr Amarante, as the mastermind of a fraudulent scheme to create false work references for students, would have genuine work references for students in his possession. In any event, any evidence Mr Amarante gave to the Tribunal would be questionable because he had pleaded guilty to perpetrating a very significant fraud. This matter does not fit within the SZIAI criteria.
For these reasons, ground 2 is not made out.
Ground 3
The third ground of review in the application filed on 14 August 2015 is:
The Tribunal failed to give proper, genuine and realistic consideration to the evidence submitted by the Applicant.
Particulars
(a)The Tribunal noted that they accepted the Applicant had done “some work at Pastry Art Design, that he knew Mr Ploumidis and that he knew some or possibly all the other staff members working there” and accordingly ascertained that there was “no point” asking the Applicant questions about the workplace, such as questions regarding the layout of the premises and how he would get to work (see [21]).
(b)The Tribunal has failed to give proper, genuine and realistic consideration to the value of such questions in assessing whether the Applicant did complete 900 hours of work or indeed whether he completed less hours of work than this.
This ground is misconceived. The question for the Tribunal was not whether the applicant completed 900 hours of work experience but whether there was any evidence before the Tribunal that the applicant had submitted a bogus document. There was such evidence, consisting of Mr Amarante’s various statements to the police and his guilty plea in relation to the consequent criminal charges. That evidence was obviously probative and substantial. Moreover, questions about the layout of the workplace and how the applicant would get to work would not tend to show that the applicant had worked 900 hours, as opposed to, say, 100 hours. Ground 3 is not made out.
Ground 4
The fourth ground of review in the application filed on 14 August 2015 is:
The Tribunal fell into jurisdictional error by making a finding that was unreasonable, illogical or irrational or for which there was no evidence.
Particulars
(a)The Tribunal found that Della “would not have kept a record of the Applicant’s work experience at a bakery while he was studying toward a Diploma in Management at another education provider, including during a period of a month or two when its registration as an education provider was cancelled or suspended” (see [46]).
(b)The Tribunal ignored the Applicant’s submissions as to why Della would have kept such records, including that he had previously studied there before transferring to a new provider due to Della’s financial difficulties and including that he had paid fees to Della not the new provider, which evidences the obvious link between the providers in relation to his enrolment. The Tribunal erred in coming to this conclusion without any evidence. The Tribunal based this finding on the view that the Applicant’s evidence was illogical however then made their finding without any evidence to the contrary.
(c)The Tribunal also came to the conclusion that none of the reference letters on “CA’s” USB were genuine. The Applicant was not presented with any evidence that there were no genuine reference letters on “CA’s” USB. It also appears that “CA” was never specifically questioned as to whether any of the reference letters were genuine and was not questioned on each of the approximately 1025 reference letters found on the USB to determine the circumstances surrounding how each one came to be found on the USB.
(d)The Tribunal came to a finding that it did not “logically follow that every person whom Mr Ploumidis supports did in fact complete at least 900 hours of work experience at Pastry Art Design” (see (50]). The Tribunal’s finding was unreasonable as there was only a small selection of students that Mr Ploumidis was still supporting in their visa applications including at hearing and therefore it could not be said that it was illogical that those he supported did in fact do the work experience as claimed. There was no evidence that Mr Ploumidis’s support was based on anything other than the fact that these students had genuinely completed work experience with him. The Tribunal did not challenge Mr Ploumidis in relation to his support of certain work experience students. The Tribunal also did not take into account that Mr Ploumidis’s evidence in relation to the Applicant was supported by the evidence of the Applicant’s co-worker Angela Pimpblet and Pastry Art Manager, Michael Karfut and the Applicant’s friend, Gaur Singh.
This ground is based on the High Court’s decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 139 ALD 181; (2013) 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18 and the decision of the Full Court of the Federal Court in Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1. In Singh, at [42], the Full Court said:
It would be wrong to see Li as creating some kind of factual checklist to be followed and applied in determining whether there has been a legally unreasonable exercise of a discretionary power. Unlike some grounds of review, legal unreasonableness is invariably fact dependent, so that in any given case determining whether an exercise of power crosses the line into legal unreasonableness will require careful evaluation of the evidence before the Court, including any inferences which may be drawn from that evidence. Ultimately, however, the outcome will depend on the application of the principles which emerge from Li, and the earlier authorities discussed in it, rather than on mere factual similarities or differences.
In Minister for Immigration and Border Protection v Pandey (2014) 143 ALD 640; [2014] FCA 640, Wigney J said at [41]:
41.The relevant principles relating to legal unreasonableness in the context of decisions by the tribunal to refuse adjournment applications have been the subject of recent extensive analysis by the High Court in Li and this court in Minister for Immigration and Border Protection v Singh (2014) 308 ALR 280; 139 ALD 50; [2014] FCAFC 1 (Singh). The relevant principles may be summarised as follows:
(a)The requirement of reasonableness flows from or is connected with an implied legislative intention that a discretionary power that is statutorily conferred must be exercised reasonably: Li at [29], [63] and [88]; Singh at [43].
(b)Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]–[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c)Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d)In those circumstances, where reasons are given, the supervising court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e)Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105]: Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220–1; Singh at [44]–[45].
(f)The legal standard of reasonableness and the indicia of legal unreasonableness will need to be found in the scope, subject and purpose of the particular statutory provisions in issue in any given case: Li at [67]; Singh at [48]. In the case of discretionary powers vested in the tribunal, the location of these powers in the statutory scheme, as aids to the performance of a review function, is important: Singh at [49].
(g)There is an overlap between the obligation in s 360 of the Act to invite an applicant to a hearing to present evidence and arguments and the exercise of the adjournment discretion in s 363. If, by reason of the refusal of an adjournment application, an applicant is not provided with an opportunity to present his or her evidence, it might be concluded that the hearing contemplated did not take place: Li at [62]; Singh at [51]–[52].
(h)The overriding duty of the tribunal to review a decision may require the tribunal, acting reasonably, to consider the exercise of the discretion to adjourn in a particular case. A failure to adjourn to allow a visa criterion to be met can, in some circumstances, be so unreasonable as to constitute a failure to review: Li at [100]–[102].
(i)It cannot be suggested that the tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case or improve upon the evidence. It may decide in an appropriate case that “enough is enough”: Li at [82]. It may decide in an appropriate case that “enough is enough”: Li at [82]. The tribunal is also under a duty to review decisions within a reasonable time: Li at [102].
(j)Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
In relation to particular (a) of this ground, the Tribunal expressly stated in paragraph 46 of its reasons for decision that it made the finding based on the evidence before it. The applicant did not elaborate on why the finding identified in particular (a) was irrational or unreasonable. I am unable to detect any irrationality or unreasonableness in that finding. It seems to me to be perfectly logical and reasonable to conclude that Della would not have kept a record of the applicant’s work experience while the applicant was studying a different course at a different institution and when Della’s registration as an education provider had been cancelled. It cannot be said that there was no evidence for the impugned finding, because the material before the court logically and reasonably permitted the inference to be drawn.
In relation to particular (b) of this ground, it is not the case that the Tribunal ignored the applicant’s evidence on the issue. Rather, the Tribunal considered the applicant’s evidence in some detail and rejected it.
In relation to particular (c) of this ground, it was logical and reasonable for the Tribunal to conclude that there were no genuine reference letters on Mr Amarante’s USB. That is because there was no reason for him to have genuine reference letters in his possession. The evidence before the Tribunal permitted it to draw the inference that there were no genuine reference letters on Mr Amarante’s USB. In that sense, it cannot be said that there was no evidence to support the finding.
In relation to particular (d) of this ground, the Tribunal said at paragraph 50 of its reasons for decision:
The Tribunal is mindful that there have been cases in which Mr Ploumidis has not appeared to support applicants, who claimed to have worked at Pastry Art Design. It does not logically follow that every person whom Mr Ploumidis supports did in fact complete at least 900 hours of work at Pastry Art Design.
The second sentence in that paragraph is obviously correct.
In relation to the last sentence in particular (d) of this ground:
a)Michael Karfut made a statutory declaration on 6 March 2015 (CB286) saying that:
i)he was the manager of Pastry Art Design;
ii)the applicant completed over 900 hours of volunteer work experience as a pastry cook from 20 January 2007 to 10 February 2008;
iii)he could vouch for the applicant’s genuine experience in the bakery; and
iv)the content and signature in his work reference letter submitted to Trades Recognition Australia were authentic;
b)Angela Pimpblet made a statutory declaration on 1 June 2015 (CB287) saying that she worked with the applicant at Pastry Art Design from January 2007 until February 2008; and
c)Gaur Singh made a statutory declaration on 1 March 2015 (CB302) saying that he worked with the applicant at Pastry Art Design from 2007 to 2008 on the Saturday morning shift.
The Tribunal specifically said at paragraph 62 of its reasons for decision that it had considered the entirety of the evidence before it, from the applicant, Mr Ploumidis and a number of other witnesses. This appears to be a reference to the evidence of Mr Karfut, Ms Pimpblet and Mr Gaur. The Tribunal then said in paragraph 63 of its reasons for decision:
The Tribunal accepts that the applicant did some work at Pastry Art Design. This is not inconsistent with Mr Amarante’s evidence to police that some, if not all, students who obtained false references did some work, but less than 900 hours of work, for the respective employers. (emphasis added)
In making this finding, the Tribunal clearly did take into account the evidence of the three co-workers. The evidence of Ms Pimpblet and Mr Singh did not specify how many hours the applicant worked at Pastry Art Design. There was nothing further that the Tribunal could have taken into account in relation to these two witnesses.
The evidence of Mr Karfut went further, in that it included a claim that the applicant did work 900 hours for Pastry Art Design. However, the Tribunal rejected that claim for reasons that it gave. That conclusion was open to the Tribunal on the evidence before it. It cannot be said that the conclusion was irrational or unreasonable or unsupported by any evidence.
Ground 4 is not made out.
Ground 5
The fifth ground of review in the application filed on 14 August 2015 is:
The Tribunal asked itself the wrong question or failed to consider the applicant’s claims or evidence.
(a)It is clear from the written reasons that the Tribunal was focussed on a consideration of whether the Applicant’s work reference provided was a genuine document, or whether it was a document prepare by “CA” for which the Applicant exchanged money.
(b)As identified by the Tribunal at [21], the question that should have been considered was whether the Applicant had undertaken 900 hours of work experience at Pastry Art, not whether he had provided a document to the TRA that was not genuine.
(c)In support of his claim to have worked 900 hours, the Applicant provided detailed and uncontested evidence regarding his work at Pastry Art, a statutory declaration from a co-worker, a statutory declaration from a Pastry Art Manager and the evidence of Mr Ploumidis, all of which confirmed the Applicant had completed 900 hours of work experience at Pastry Art.
(d)The Tribunal failed to adequately consider the substantial evidence put forward by the Applicant in relation to his work experience, particularly that there were numerous reliable third parties providing support to his claims.
This ground is misconceived. The question for the Tribunal was whether there was any evidence that the applicant had provided a bogus document. There was clearly ample evidence to that effect. The Tribunal considered at great length the alternative scenarios put forward by the applicant but ultimately did not accept them. Ground 5 is not made out.
Additional ground
During the course of the hearing on 5 October 2017, the applicant raised an additional ground. He was given leave to amend his application to include a sixth ground, which was as follows:
The Tribunal made a jurisdictional error by failing to disclose to the applicant the existence of a certificate under s.375A of the Migration Act 1958 relating to documents in his case.
The applicant considered that it was likely that there would have been a s.375A certificate in his case because such certificates were provided in other similar cases. The applicant tendered one such certificate, in the matter of Gill, which was dated 2 October 2014: Exhibit 1. To facilitate this ground, it was ordered that:
On or before 26 October 2017, the first respondent file and serve an affidavit regarding whether a certificate under s.357A of the Migration Act 1958 was provided to the Tribunal in this case, and, if not, why it was not provided when such certificates were provided in others similar cases.
On 25 October 2017, the first respondent filed an affidavit affirmed by Matthew William Lee Pettitt. In that affidavit, Mr Pettitt said that:
a)he is the Assistant Director of the Service Delivery and Support Team, Economic Skilled Visa Programme Branch of the Department of Immigration and Border Protection;
b)in 2014, that team was responsible for preparing files and nondisclosure certificates for the Tribunal;
c)if required, a team officer would draft a nondisclosure certificate under s.375A, which would be reviewed and signed by the delegate who had made the relevant decision;
d)Mr Pettitt had reviewed the applicant’s file;
e)there was no nondisclosure certificate prepared in relation to any documents on the applicant’s file;
f)the policy in relation to nondisclosure certificates in relation to matters involving Carmine Amarante was changed on 17 September 2014;
g)before that date, nondisclosure certificates were regularly issued in relation to documents relating to Carmine Amarante;
h)the change of policy was to the effect that nondisclosure certificates would no longer be issued over such documents;
i)Mr Pettitt believed that, in accordance with the change of policy, a nondisclosure certificate was not issued in connection with the applicant’s file;
j)Mr Pettitt believed that the nondisclosure certificate issued on 2 October 2014 in the matter of Gill was not issued in accordance with the policy in effect at that time;
k)Mr Pettit believed that the nondisclosure certificate issued in Gill was issued during a transitory phase before the new policy had been recorded into a working operating procedure; and
l)Mr Pettitt had been unable to find evidence of the date on which the new policy was transferred into a working operating procedure.
The matter return to court on 13 November 2017 for the applicant to cross-examine Mr Pettitt. The court explained to the applicant the need to challenge the witness on any aspects of his evidence that the applicant did not agree with by saying something like:
It’s not true that XYZ happened.
What really happened is ABC.
The applicant asked Mr Pettitt in cross-examination why a nondisclosure certificate had not been issued in the applicant’s case. Mr Pettit said he did not know.
The applicant asked Mr Pettitt if he could provide the policy that he referred to in his affidavit to the court. Mr Pettitt said emails were received about how to address the nondisclosure certificates. Mr Pettit said the emails were from the legal area within his department and were addressed to his business area. He said the emails were dated 17 September 2014. In addition to the emails, he said there was a policy document. Mr Pettitt was asked to produce the emails and the policy documents.
Mr Pettitt was unable to produce the requested documents on the day, so the matter was further adjourned until 20 November 2017. The first respondent was ordered to provide to the applicant by 15 November 2017 a copy of the old and new policies regarding certificates issued pursuant to s.375A of the Act, and, if the first respondent did not intend to claim legal professional privilege, a copy of the emails relating to the old and new policies.
The matter returned to court on 20 November 2017. On that occasion, the old and new policies regarding nondisclosure certificates were tendered to the court, together with a redacted copy of the emails relating to the old and new policies.
A full copy of the emails was provided to the court but not to the applicant as an attachment to the affidavit of Michelle Elizabeth Stone affirmed on 17 November 2017, which was not filed but was marked for identification as MFI‑1. The first respondent claimed legal professional privilege in respect of the redacted portions of the emails. I am satisfied that the redacted portions of the emails were subject to legal professional privilege.
Mr Pettit said in further cross-examination that he did not know why a s.375A certificate was not issued in the applicant’s case but said that it was in line with policy. He said that he did not know when the policy was effectively changed in accordance with the legal advice received on 17 September 2014. It was eventually accepted that the relevant email was actually dated 18 September 2014.
Mr Pettitt explained that the current policy is an organic document that is updated daily. He said that he had tried to find such things as tracked changes to ascertain exactly when the relevant part of the new policy was updated but had been unsuccessful. He agreed that he did not know when the change of policy took effect so as to no longer require s.375A certificates to be issued in matters such as the applicant’s.
The applicant noted that his application was rejected by a delegate of the Minister on 11 November 2014. He said the certificate in the other matter, Gill, was issued on 2 October 2014, which was also shortly after the supposed change of policy. Mr Pettitt had been unable to explain why a s.375A certificate was not issued in the applicant’s case and was unable to say when the change of policy took effect.
The first respondent submitted that the applicant had not challenged Mr Pettitt on his evidence that he had searched for a certificate and been unable to find one. The first respondent submitted that the court should infer that the certificate in Gill was issued in error during the transition phase to the new policy. The first respondent submitted that the applicant had been unable to show that a s.357A certificate had been issued in this case and that should be the end of the matter.
There is some scope for doubt in this case about whether or not a s.375A certificate was issued, because the date of the change of policy is unclear and at least one s.375A certificate was issued in circumstances similar to the applicant’s circumstances after the supposed date of the change of policy. Notwithstanding these deficiencies in the first respondent’s position, the court is left without any solid evidence that a s.375A certificate was issued in the present case. I am not prepared to infer that such a certificate was issued when Mr Pettitt gave unchallenged evidence that he had examined the applicant’s file and concluded that a s.375A certificate was not issued in relation to that file.
Consequently, the sixth ground is not made out.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed. I will hear the parties on the question of costs.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 12 December 2017
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Jurisdiction
8
0