Sandhu v Minister for Immigration

[2015] FCCA 1142

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDHU v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1142

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – argument as to whether error in the Tribunal by not providing applicant with redacted information pursuant to s.14 of the Privacy Act (1988) (Cth) – Tribunal’s decision stands on a separate unchallenged finding – futility in remitting the matter – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)
Privacy Act 1988 (Cth)

Lobo v MIMIA [2003] FCAFC 168
Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157

SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609

Applicant: GURJEET SINGH SANDHU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1149 of 2014

Judgment of: Judge McGuire

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Melbourne

Delivered on: 26 June 2015

REPRESENTATION

Counsel for the Applicant: Ms Costello

Solicitors for the Applicant: Dagama Pereira & Associates Pty Ltd

Counsel for the Respondents: Ms Symons

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application filed on 12 June 2014 be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1149 of 2014

GURJEET SINGH SANDHU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the determination of the Migration Review Tribunal (“the Tribunal”) made 8 May 2014 affirming a decision of the Minister’s delegate not to grant the applicant a Skilled (Residence) (Class VB) visa (“skilled visa”).

2. The applicant is an Indian citizen who applied for a skilled visa on 8 January 2009.

3. The Tribunal was not satisfied in respect of two matters in affirming the delegates decision;

   i) That the applicant did not satisfy Public Interest Criterion (PIC4020(1)) in respect of Schedule 2 clause 866.225 of the Migration Regulations 1994 (Cth). The Tribunal found at [35] that there was evidence before it that the applicant had given or caused to be given a bogus document in support of the application for a visa. That bogus document related to the applicant’s skills assessment and particularly his reference stating that he had performed 923 hours in his occupation as a pastry cook;

   ii) That the applicant did not satisfy the two year study requirement in that his qualifications of a Diploma of Business Management was not “closely related” to the nominated occupation of pastry cook and that another qualification of the Certificate III in Food Processing (Retail Baking) was not completed within the prescribed time period.

4. The applicant’s amended application for judicial review dated 13 February 2015 complains only in respect of the Tribunal’s findings that the applicant did not satisfy PIC4020(1).

5. The applicant argues that the Tribunal breached s.362A of the Migration Act 1958 (“the Act”) in incorrectly refusing the applicant access to materials and relevant documents relied upon in its determination. At the commencement of the hearing before me the applicant’s Counsel sought the documents pursuant to a Notice to Produce.

6. The Tribunal relied on s.14 of the Privacy Act 1988 (Cth) in denying the documents to the applicant or in providing documents containing redacted information.

7. Prior to my determination of the amended application, Counsel for the Minister raised an argument of “futility” that no useful result would or could ensue from the granting of the relief sought and the remitting of the matter to the Tribunal. Essentially, that argument is that the Tribunal made an unimpeachable and independent finding which grounded the refusal of the visa such finding being unchallenged before me and separate from the complaint of the non-provision of information pursuant to s.14 of the Privacy Act. That is, it is argued that the Tribunal’s determination will stand irrespective of this Court’s findings in respect of the issue now complained of.

8. Both the parties rely in their arguments on a decision of the Full Court in Minister for Immigration and Border Protection v Dhillon.[1] The applicant gleans support from their Honours’ declaration on the Public Interest Criterion in respect of a factual platform very similar to that now before me.

   [1] [2014] FCAFC 157

9. Counsel for the Minister relies on the decision in Dhillon as support for the “futility” argument also citing the majority of the High Court in SZBYR v Minister for Immigration and Citizenship[2] where the Court was dealing with a determination based on two distinct findings and where, at [27-29] the Court observed;

   [27] The respondent Minister raised the issue of discretionary relief by way of a Notice of Contention dated 16 February 2007. The Minister argued that, even if the appellants' arguments about s 424A were correct, their claim would be doomed to failure because of the absence of a Convention nexus, and thus the grant of certiorari or mandamus would be futile. This submission was not put to the courts below, and, given the conclusions expressed in these reasons that on the facts of this case s 424A had not been engaged at all, it is not critical for the Minister to rely upon it in this Court. However, it is convenient to say something on the subject.

   [28] This Court has previously emphasised that the grant of the constitutional writs is a matter of discretion, and the same principles apply to the grant of relief by the Federal Magistrates Court and the Federal Court pursuant to s 39B of the Judiciary Act 1903 (Cth). In Aala, Gaudron and Gummow JJ noted at [18]:

   Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:

   'For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.'"

   [29] The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s 424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse". In this regard, the references that were made in the course of argument to the "unbundling" of a Tribunal's reasons into "impeachable" and "unimpeachable" parts were more likely to mislead than to assist. While there may well be cases in which a tribunal's breach of s 424A affects its findings about the absence of a Convention nexus, this was not such a case.

   [2] (2007) 235 ALR 609

10. The Full Court in Dhillon had before it a “closely related” argument. The Court affirmed the Judge at first instance in finding that no error in the Tribunal’s determination that the applicant’s qualifications were “not closely related” to the nominated occupation. Notably, I do not have such a complaint or argument before me in relation to the Tribunal’s findings on the “closely related” issue.

11. My colleague in Dhillon found error in the Tribunal’s decision finding that Mr Dhillon had been denied procedural fairness as required by s.360 of the Act because he had not been provided with the redacted material. The Full Court noted, however, that his Honour did not consider whether the dismissal of, and assumed correctness of, the Tribunal’s decision on the “closely related” requirement “necessitated upholding its decision irrespective of any breach of procedural fairness”.[3] The Minister’s appeal in Dhillon to the Full Court was upheld. The Minister argued that:

    …the Federal Circuit Court ought to have affirmed the decision of the Tribunal on the “closely related” grounds irrespective of any conclusion concerning a claim of breach of procedural fairness by reason of Mr Dhillon having being given access to the redacted material in deciding the Public Interest Criterion against him.[4]

    [3] See Dhillon (supra) at [2]

    [4] See Dhillon (supra) at [3]

12. The Full Court concluded at [21] that no utility would ensue by remitting the matter to the Tribunal once his Honour had found that it was open to the Tribunal to find that Mr Dhillon had not satisfied the distinct “closely related” requirement.

13. Counsel for the applicant argues here that the decision to grant the writ is discretionary. She says, therefore, that the Court should have all relevant matters for its consideration and that it is relevant for me to consider the procedural fairness issues before the Tribunal prior to declining to remit simply on the basis of the uncontroversial “closely related” finding. The rationale of that argument is that the Tribunal’s decision may be so grossly infected by the procedural fairness denials that the Court’s discretion should be exercised in favour of the applicant. In doing so, Counsel for the applicant takes support from the Full Court in Dhillon (supra) where their Honours thought it “desirable to make some observations concerning that issue (the PIC criteria)” [22]. Those observations resulted in a declaration that:

    …the Migration Review Tribunal erred in finding that the first respondent had breached Public Interest Criterion 4020, having made that finding in breach of his entitlement to access the redacted information to which he was entitled pursuant to his request made under s362A.

14. The difficulty faced by the applicant in this argument is one of relevance. There is simply no nexus in the complaint about non-provision of redacted information to the “closely related” consideration. The applicant’s complaint relates to findings in respect of bogus material allegedly provided to the Tribunal. The issues are distinct and unrelated.

15. Butterworths Australian Legal Dictionary[5] defines “relevance” thus;

    The ability of evidence, if accepted, to rationally affect (directly or indirectly) the assessment of the probability of a fact in issue in the proceedings…or evidence which is logically probative of facts sought to be proved…

    [5] Nygh & Butt, Butterworths Australian Legal Dictionary (Lexus Nexis 2007)

16. The Tribunal’s determination can stand independently on the “closely related” findings against the applicant. Those findings are not challenged. Even if there is merit in the argument in respect of the non-provision of the redacted material, there could be no utility, therefore, in remitting the matter to the Tribunal.[6] There being no nexus of relevance, I do not accept the argument that the entirety of the determination could be infected by the failure to provide the redacted material.

    [6] Lobo v MIMIA [2003] FCAFC 168 at [67]

Conclusion.

1. Not having heard any direct argument in respect of the issue of the redacted material, I do not feel able to comment on its likelihood of success. Rather, I accept the “futility” argument of Counsel for the Minister and that application will accordingly be dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 26 June 2015