Sandhu v Minister for Immigration
[2015] FCCA 1678
•19 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDHU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1678 |
| Catchwords: MIGRATION – Application seeking review of decision of Migration Review Tribunal to refuse to grant applicants Skilled visas – applicants applied for a Class VC, sub-class 485 visas – applicants did not satisfy Class 485.224 of Migration Regulations 1994 (Cth) because they did not satisfy PIC 4020 – whether Tribunal failed to comply with s.359A or s.359AA of Migration Act 1958 (Cth) – failure constitutes jurisdictional error – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.97, 359, 359A, 359AA, 360 Migration Regulations 1994 (Cth), cl.485.224 of Sch.2, PIC 4020 |
| Minister for Immigration and Citizenship v Li & Anor (2012) 202 FCR 387 SZNKO v Minister for Immigration and Citizenship & Anor (2010) 184 FCR 505 |
| First Applicant: | JAPINDER SINGH SANDHU |
| Second Applicant | KANWAL PREET KAUR SANDHU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1545 of 2013 |
| Judgment of: | Judge Lloyd-Jones |
| Hearing date: | 20 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 19 June 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr N Dobbie Dobbie and Devine Immigration Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr H Bevan |
| Solicitors for the First Respondent: | Sparke Helmore |
| The Second Respondent: | The Second Respondent filed a submitting notice |
ORDERS
A writ of certiorari issue directed to the second respondent, to quash the decision of the second respondent made on 13 June 2013, case number 120855.
A writ of mandamus issued directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent, dated 6 January 2012.
The first respondent pay the applicants’ costs and disbursements of and incidental to the application.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1545 of 2013
| JAPINDER SINGH SANDHU |
First Applicant
| KANWALL PREET KAUR SANDHU |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
1.The application filed on 8 July 2013 and further amended application filed on 6 March 2014 seeks judicial review of a decision of the Migration Review Tribunal (the “Tribunal”) made on 13 June 2013. The Tribunal affirmed the decision of a delegate of the First Respondent, the Minister for Immigration and Border Protection (the “Minister”) (formerly known as Minister for Immigration, Multicultural Affairs and Citizenship), dated 31 May 2012 to refuse to grant the first and second applicants Skilled (Provisional) (Class VC) visas.
2.The solicitors for the Minister were ordered to file a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing by 27 August 2013. The volume of material provided is identified as the Court Book (“CB”) and has been marked Exhibit “A”.
3.The applicant filed the affidavit of Ma Rosario Xiella Devine, affirmed 5 July 2013 and filed 8 July 2013 (the “Devine Affidavit”) which annexes a transcript of the Tribunal hearing held on 24 October 2012 (the “Transcript”).
4.Throughout these reasons, there are references to “Mr CA”. Due to non-publication orders made by her Honour Judge Cannon in Victorian County Court proceedings, the issues in which were intertwined in the Tribunal’s findings in relation to the applicants’ visa application, I will continue to use that pseudonym for the purposes of these reasons.
Background
5.In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material. I have not made further attribution as this would make the summary unwieldy.
6.The applicants applied for a Class VC, subclass 485 visas on 8 March 2008 (CB 1-53). The first applicant (hereafter, the “applicant”) sought to satisfy the primary criteria for the grant of the visa (CB 1). In support of the application, the applicant provided a skills assessment from Trades Recognition Australia (“TRA”) for the skilled occupation of Pastry Cook (CB 32-33). He later provided a copy of the skills assessment and a copy of the application form and supporting documents given to TRA for that skills assessment (CB 67-90). Included in that supporting documentation was an employment reference from Bakers Hut Bread Supplies (the “Work Reference”) (CB 79-85).
7.On 5 December 2011, a delegate of the Minister sent a letter, by email, to the applicant inviting him to comment on adverse information; namely that on 4 November 2011, a person named Mr CA pleaded guilty to the manufacture and sale of work references matching the one that the applicant submitted to TRA to obtain his skills assessment. The letter also stated that Mr CA had admitted that the documents were fraudulent in content and that they were created to assist the applicant to apply for permanent residency in Australia. The delegate formed a preliminary opinion that the skills assessment had been fraudulently obtained (CB 123).
8.On 20 December 2011, the applicant responded to the delegate’s letter (CB 128-136). In short, the applicant denied the allegations made in the letter and maintained that he worked at Bakers Hut as claimed (CB 134-136).
9.On 6 January 2012, a delegate of the Minister refused the visa application (CB 140-149). The delegate found that the applicant was never employed by Bakers Hut and that the work reference provided to TRA for the skills assessment was false or misleading in a material particular, such that he did not satisfy public interest criterion 4020 (“PIC 4020”) (CB 148).
10.The delegate found that the applicant did not satisfy clause 485.224 of Schedule 2 to the Migration Regulations 1994 (the “Migration Regulations”) because he did not satisfy PIC 4020 of Schedule 4 of the Migration Regulations (CB 147-148).
Legislative Framework
11.Clause 485.224 of the Migration Regulations provided:
485.224 The applicant:
(a) satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010 and 4020; and
12.PIC 4020 provided:
4020
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a) the application for the visa; or
(b) a visa that the applicant held in the period of 12 months before the application was made.
(2) The Minister is satisfied that during the period:
(a) starting 3 years before the application was made; and
(b) ending when the Minister makes a decision to grant or refuse the application;
the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1).
(3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.
(4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a) compelling circumstances that affect the interests of Australia; or
(b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(5) In this clause:
"information that is false or misleading in a material particular"means information that is:
(a) false or misleading at the time it is given; and
(b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Note: Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act.
13.Criterion 485.224, at the time the applicant applied for the visa, did not contain PIC 4020. That is because PIC 4020 was introduced and took effect on 2 April 2011.
14.On 23 January 2012, the applicants sought review of the delegate’s decision in the Migration Review Tribunal (CB 150-161). The applicants appeared before the Tribunal on 24 October 2012.
15.On 7 November 2012, the applicants sent a submission to the Tribunal, which submitted that the presiding member recuse herself from further reviewing the application, on the basis of an apprehension of bias (CB 192-196). They also provided further evidence in support of their review application. The Tribunal did not respond to the recusal request.
16.On 4 December 2012, the Tribunal sent a s.359A letter to the applicants (CB 204-216). On 31 December 2012, the applicants responded to the invitation (217-229). The applicants maintained their submission that the presiding member disqualify herself (CB 225). They also provided letters in support of their review application. A further submission was provided on 8 January 2012 (CB 228-229).
17.The Tribunal affirmed the delegate’s decision on 13 June 2013. The Tribunal found that as the applicant did not satisfy PIC 4020, he did not satisfy clause 485.224, such that the application had to be refused (CB 304 at [217]; CB313 at [274]-[276]).
Current Proceedings
18.The Further Amended Application, filed 6 March 2014, seeks the following orders:
1. An Order that the decision of the Second Respondent be quashed.
2. A WRIT OF MANDAMUS directed to the Second Respondent to determine the Applicants’ application for review according to law.
3. Such other relief as the Court considers appropriate.
4. An Order that the Respondents pay the Applicants’ costs of this application.
19.The grounds of the Further Amended Application are as follows:
1. The Tribunal failed to comply with s359A of the Migration Act 1958.
Particulars:
(i) The Tribunal committed jurisdictional error by failing to give, in accordance with s359A of the Migration Act 1958, clear particulars of the following adverse information:
(a) An Agreed Summary of Material Facts in the County Court, Victoria, relating to a person, referred to as Mr A.
(b) A sworn statement made to the Australia Federal Police from Mr A.
(c) Information that Mr A also pleaded guilty to the manufacture and sale of work references matching the one the First Applicant had submitted to Trades Recognition Australia.
(d) A list of employers and documents types (CB 242-253)
(e) Information that the Tribunal noted that
“Mr A specifically informed the authorities that many students did take the time to familiarize themselves with the business where they falsely claimed to have completed their 900 hours’ work experience, and that the employers named by him, including Mr X, were complicit in this fraud.’ (CB 205)
(ii) That information was information that the Tribunal considered would be the reason or part of the reason for affirmed the delegate’s decision, as it undermined the First Applicant’s claim that he worked at Bakers Hut Bread Supplies, which resulted in the Tribunal finding that the First Applicant did not satisfy clause 485.224 of Schedule 2 of the Migration Regulations 1994.
(iii) The finding by the Tribunal that the First Applicant did not satisfy clause 485.224 meant that the Tribunal had to affirm the delegate’s decision.
2. There is an Apprehension of Bias
Particulars:
(i) The decision is infected with jurisdictional error because there is an apprehension of bias.
(a) The Tribunal held a hearing with the Applicants on 24 October 2012.
(b) At that hearing, the Tribunal stated on numerous occasions that it did not wish to take oral evidence from the First Applicant that the First Applicant could not verify, despite that evidence being critical to the First Applicant’s claims that he worked as claimed at Bakers Hut Bread Supplies, and which was material to whether he satisfies clause 485.225.
(c) On the other hand, the Tribunal relied on the word of an officer of the Department of Immigration and Citizenship that a ‘seized work reference’ was compared with the work reference submitted with Trades Recognition Australia by the First Applicant and that they were ‘identical in format and content’. Without seeing the seized work reference without verifying or otherwise testing that information.
(d) The posited fair-minded observer would reasonable apprehend that the Tribunal had predetermined the application and that conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.
3. The Tribunal failed to comply with s360 of the Act
Particulars:
(i) The Tribunal failed to comply with s360 of the Act
(a) The Tribunal held a hearing with the Applicants on 24 October 2012.
(b) At that hearing, the Tribunal stated on numerous occasions that it did not wish to take oral evidence from the First Applicant that the First Applicant could not verify, despite that evidence being critical to the First Applicant’s claims that he worked as claimed at Bakers Huts Bread Supplies, and which was material to whether he satisfied clause 485.224.
(c) The Tribunal therefore failed to conduct the hearing prescribed by s360 at which the Applicant could give evidence and present arguments relating to the issues arising in relation to the decision under review.
5. The Tribunal failed to conduct the review required by law
Particulars:
(i) The Tribunal failed to conduct the review requires by law because it fettered its enquiry, and the giving of evidence by the First Applicant, in relation to whether the First Applicant’s evidence was credible concerning his claimed work experience at Bakers Hut Bread Supplies by:
(a) its misinterpretation of the law of public interest criterion 4020(1) required it to ‘focus on the concept of ‘no evidence’ (CB 291 at [152]) when its primary task was to first establish whether the First Applicant worked as claimed at Bakers Hut Bread Supplies.
(ii) The Tribunal failed to conduct the review by law because it failed to ask Mr A to answer determinatively the question of whether the First Applicant worked at Bakers Hut Bread Supplies as claimed.
20.Ground 4 of the Further Amended Application is not pressed.
Applicant’s Submissions
Ground 1
21.Ground 1 pleads that the Tribunal failed to comply with s359A of the Migration Act. Sections 359AA and 359A relevantly provided:
359AA Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 360:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
359A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies—by one of the methods specified in section 379A; or
(b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
(3) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non‑disclosable information.
22.It is settled law that if the Tribunal fails to comply with s.359A (and where s.359AA has not been complied with) that failure constitutes jurisdictional error: see Minister for Immigration and Citizenship v SZLFX & Anor (2009) 238 CLR 507 at [22]-[26]; SZNKO v Minister for Immigration and Citizenship & Anor (2010) 184 FCR 505, per Flick J at 513-514 (at [27]-[31]); MZYHF v Minister for Immigration and Citizenship & Anor (2010) 118 ALD 534 per Bromberg J at [31].
Ground 1: Particular (i)(a): The Agreed Summary of Material Facts
23.It is submitted that the Tribunal did not comply with s.359A in relation to an Agreed Summary of Material Facts (‘the summary’) in relation to proceedings in the County Court of Victoria; The Queen v [Mr CA] (CB 234-341).
24.The summary was about Mr CA and set out in detail his conduct in relation to the creation of fraudulent documents. It also included information of admissions from persons complicit in that conduct; for example, Mr CB and Mr MB (CB 236). The summary showed how widespread Mr CA’s network was in relation to the fraudulent documentation.
25.It is submitted that the summary was information that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision, on the basis that the applicant did not satisfy PIC 4020. The Tribunal refers to, and relies on, the summary on numerous occasions; for example, CB 296 at [173]; CB 299 at [188]; at CB 302 at [208]; and CB 303 at [210].
26.The remaining particulars in Ground 1 are not pressed.
27.The applicant argues that because the Tribunal did not comply with s.359AA, it was obliged by s.359A to give the applicants notice of the adverse information in writing. It failed to do so. That failure constitutes jurisdictional error.
Ground 2: Apprehension of Bias
28.Ground 2 pleads that the decision is infected with jurisdictional error because there is an apprehension of bias. The Tribunal held a hearing with the applicants on 24 October 2012. At the hearing, the Tribunal stated on numerous occasions that it did not wish to take oral evidence from the applicant that the applicant could not verify, despite that evidence being critical to the applicant’s claims that he worked as claimed at Bakers Hut Bread Supplies, and which was material to whether he satisfied clause 485.224; for example:
Q255 All right. O.K. Any other questions, Mr Dobbie?
MR DOBBIE: Maybe just if, if the Tribunal could ask him if for example how they prepared the products in the bakery, for example, was it pre-prepared? Like some bakeries for example, I know they order the dough, others make it on site, different products have different things and that might be relevant to the operational side if he worked there.
TRIBUNAL MEMBER: Q256 The problem is that I don’t have anything to test that against.
MR DOBBIE: Right. But he could at least say - - -
TRIBUNAL MEMBER: Q257 Well, except he did a course in retail baking so he may well have learned that from the course.
MR DOBBIE: What I mean is this, I know it’s a fact ‘cause I know people in bakeries, that some bakers don’t make their own products, they just stick it in the oven, some bakers make some products and ..... others.
TRIBUNAL MEMBER: Q258 Can I tell you – I could ask that question.
MR DOBBIE: Yes.
TRIBUNAL MEMBER Q259 In fact I will ask that question. I think I know what the answer will be. Mr Sandhu, did Bakers Hut make its own products on site or did it order them and simply bake them in the oven?
APPLICANT: We make our own products.
Q260 Yeah, which is what I expected he would say. There is no way I can verify the truth of that statement or not.
MR DOBBIE:I mean I didn’t mean, I mean obviously they make products, I meant whether they made the ingredients to make the products, whether they were pre-ordered or they were made on site, were they pre-ordered for some but not for others?
TRIBUNAL MEMBER: Q261 Presuming that they would have pre-ordered flour, they wouldn’t have made the flour.
MR DOBBIE: I don’t mean raw materials, no, sometimes, sometimes pastries are cooked but they’re not prepared, the materials - - -
TRIBUNAL MEMBER: Q262 Yes, I understand the question that you’re asking. What you don’t seem to be understanding is without the employer here - - -
MR DOBBIE: Yes.
TRIBUNAL MEMBER: Q263 See, if the employer were a witness - - -
MR DOBBIE : Yes.
TRIBUNAL MEMBER: Q263 - - - then what we would do is, we would ask Mr Sandhu these questions, then we would call the employer in, ask him the same set of questions and if there was consistency in the responses, then that would indicate that clearly that they sort of, it’s more likely than not that he was employed. Problem is I have nothing against which - - -
MR DOBBIE: But the employer’s not here.
TRIBUNAL MEMBER : Q264 Well, I know that, and that’s my point.
MR DOBBIE
.....
TRIBUNAL MEMBER
Q265 There’s nothing for me to test it against.
MR DOBBIE: I understand that there’s nothing to test but he can still give evidence that can be weighed. If he understands fully how that business ran operationally, whether some products were made from pre-purchased goods as opposed to make on site - - -
TRIBUNAL MEMBER: Q266 It doesn’t actually – he could have got that information from speaking to you, you could have instructed him - - -
MR DOBBIE: Well, I wouldn’t, I wouldn’t instruct him on anything to do with his evidence.
TRIBUNAL MEMBER: Q267 But I don’t know .....
MR DOBBIE: Well, I don’t. I can tell you now we don’t put words in applicants’ mouths.
TRIBUNAL MEMBER: Q268 I’m simply saying that I don’t, it doesn’t actually advance the matter very far. I’ve already asked a series of questions which – I’ve asked him about who else was employed there and the reason I haven’t asked him for names and, and all the rest is because I can’t verify that and, and he’s not in a position to verify it either.
MR DOBBIE: Can I just put it this way. If someone, you can’t verify something that someone gives evidence of some overwhelming nature that you believe what they say without having to verify because you can’t put it against any standard because there’s no one to compare it against, you can still make a favourable finding. It’s the same in a protection visa case, quite often you can’t verify the claim a person was tortured but you accept their evidence on the veracity of their oral evidence, the way they present themselves - - -
TRIBUNAL MEMBER: Q269 Mr Dobbie, I have been at this Tribunal for eleven years - - -
Yes.
TRIBUNAL MEMBER: Q269 - - - across both Tribunals.
MR DOBBIE: Yes.
TRIBUNAL MEMBER; Q270 I do understand the concept of - - -
MR DOBBIE : Yes, yes.
TRIBUNAL MEMBER: Q270 - - - weighing evidence - - -
MR DOBBIE: Yes.
TRIBUNAL MEMBER:Q270 - - - and the veracity - - -
MR DOBBIE: Yes.
TRIBUNAL MEMBER:Q270 - - - which you can or cannot prove.
MR DOBBIE: Yes.
TRIBUNAL MEMBER: Q271 At the moment I don’t know that given the evidence that I do have about this business and the Department that pursuing that line of questioning actually will assist me. Right. I understand why you’re making the point - - -
MR DOBBIE: Yes.
(Transcript, pp. 35-39)(emphasis added)
29.The applicant submits that the extracts of the Transcript show that there is an apprehension of bias. The Tribunal was fixated on the First Applicant presenting only verifiable evidence. This culminates in the Tribunal’s comment at Q271 that given evidence that it has about the business and the Department, the applicant’s evidence (unless verifiable) was of no assistance.
30.The Tribunal then summarises some broader questions it put to the applicant. The following exchange takes place from Q271-283 (Transcript pp. 40-43):
TRIBUNAL MEMBER: Q271 - - - but at this point, rather than dealing with the legal issues and legal submissions, are there any particular questions that you want me to ask?
MR DOBBIE: Well, I was only asking to ask questions to try to show he actually worked there .....
TRIBUNAL MEMBER: Q272 Well, I have asked him, I have asked him questions, I’ve asked him questions about, I’ve asked him questions about where the business was located.
MR DOBBIE: Yes.
TRIBUNAL MEMBER: Q273 What, what’s in and about the business.
MR DOBBIE: Yes.
TRIBUNAL MEMBER: Q274 I’ve asked him the nature of the building, I’ve asked him how many hours he worked, which days of the week he worked, whether or not he had logbooks, I’ve asked him how many people worked there.
MR DOBBIE: Yes.
TRIBUNAL MEMBER: Q275 Whether they were full-time or part-time. I’ve asked him about his duties, what that involved, he told his stock, that he was monitoring stock levels, that he would make a list of what needed to be ordered, he would give it to Mr K, that he would unpack the ingredients. We talked about how he might store, unpack and store the ingredients.
MR DOBBIE: Yes.
TRIBUNAL MEMBER: Q276 We talked about what he baked. I asked him about how, what sort of techniques he used in decoration. He wasn’t able to actually name any particular techniques which is a little surprising if you were actually doing decoration of pastries and cakes, that you couldn’t actually explain that, but we talked about the OH&S training that was done, the sorts of things that you would do to make sure that you lift things correctly, that you minimise occupational asthma or flour dust in the air.
MR DOBBIE: Sure.
TRIBUNAL MEMBER:Q277 So I actually think I have asked him questions that test his knowledge about working in a bakery. So I don’t know that there is need to go into a lot more detail about things that I can’t test.
MR DOBBIE : What if he had unique knowledge of how things were ordered and done in that bakery to separate him from - - -
TRIBUNAL MEMBER: Q278 And that would be fine if I had some evidence which I could test that. The problem is you can tell me that it’s unique, he can tell me it’s unique - - -
MR DOBBIE: Yes.
TRIBUNAL MEMBER: Q278 - - - but how do I know that it’s unique?
MR DOBBIE: Because you might believe him on the veracity of whether you find him to be a credible witness. Isn’t that ..... for all of these types of cases where there’s no standard you can actually just compare against?
TRIBUNAL MEMBER: Q279 Well, I have to do it against, on the balance of probabilities, weighing everything up.
MR DOBBIE: Yes.
TRIBUNAL MEMBER: Q280 Including the information the Department has provided.
MR DOBBIE: Yes. I understand fully. I’m just saying that the more evidence he can give about the intricacies of that bakery, the more you may be, may say that perhaps this one compared to others actually worked there, because otherwise he’s got no chance here, otherwise his evidence means nothing because he can’t, he can’t meet your standard because it can’t be compared to anything to verify.
TRIBUNAL MEMBER: Q281 Well, actually I have, as I said to him at the beginning of the hearing, I have actually read and obtained information more broadly about working in a bakery.
MR DOBBIE: Yes, yes, yes.
TRIBUNAL MEMBER: Q282 But there’s a limit to how far we can go with that line of questioning. I simply am saying to you I think we’ve reached the limit, I’d like to move on to other matters now. We’ve got two other witnesses listed.
MR DOBBIE
.....
TRIBUNAL MEMBER: Q283 So unless there’s a specific question that actually will enlighten the Tribunal somewhat further then I don’t propose to - - -
MR DOBBIE: Well, I don’t think I can put any more than what I’ve already put.
(Transcript, pp. 40-43)
31.It is submitted that the above exchange further shows an apprehension of bias; the Tribunal had undertaken some general reading about working in a bakery but that did not mean that its questioning of the applicant had to be limited to claims that he could verify. The Tribunal stated that it had reached the limit of its line of questioning, but that was a line of questioning fettered by its view that the applicant should only give testimony that could be verified.
32.On the other hand, the Tribunal relied on the word of an officer of the Department of Immigration and Border Protection that a ‘seized work reference’ was compared with the work reference submitted with Trades Recognition Australia by the applicant and that they were “identical in format and content”, without seeing the seized work reference and without verifying or otherwise testing that information:
TRIBUNAL MEMBER: Q395 And we haven’t been able to get them and we have set up a contract point with the Department and the query that I made to the Department was to provide, specifically requested that the Department confirm whether Trades Recognition Australia had revoked the original positive skills assessment issue to the visa applicant and provided all associated Departmental files and copies of all the evidence that led to the delegate’s finding that the visa applicant’s work reference was fraudulently obtained. And what I got back was that statement. “We have compared the seized work reference with the TRA submitted work reference,” for the applicant. Right. It is identical in format and content. So let’s move on to what your legal argument are.
(Transcript, p. 56)
33.And at Q446 (Transcript, p.72)
…
On the 18th of June, 2012, in response to a request for the evidence the Department had relied up, a Departmental officer from the Risk, Fraud and Integrity division of the Department informed the Tribunal as follows: “We have compared the seized work reference with the TRA submitted work reference for Japinder Singh Sandhu. It is identical in format and content. The only difference is handwritten ticks above the words and at the end of bullet points as well as a circle around the number of work experience hours and the word training on the TRA submitted work reference.”
(Transcript, p.72)
34.In SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 (25 July 2013), the Full Court of the Federal Court of Australia relevantly stated the following in relation to an apprehension of bias. His Honour Allsop CJ at [1]-[6], stated:
1. I have had the advantage of reading the reasons for judgment of Flick J and Robertson J. I agree with their Honours’ reasons and with the orders proposed by them. I wish only to make the following additional remarks.
2. The question whether or not an administrative tribunal has conducted itself in a way that displays apprehended bias is assessed by reference to the hypothetical construct of the informed fair-minded observer. There was no debate as to the proper formulation of the relevant test. Nor could there be, governed, as it is, by High Court authority. The words “fair-minded”, however, should be recognized for the central part they play in the assessment. Apprehended bias, if found, is an aspect of a lack of procedural fairness. The rules to assess whether apprehended bias was present form part of the body of principles, rooted in fairness, and directed to the necessity for executive power to be exercised fairly and to appear to be exercised fairly, in support of the maintenance of confidence in the administrative process, and judicial review of it. The relevant enquiry is directed not to the correctness of the outcome, but to the apparent fairness of the process (the process being part of the exercise of power, integral to the legitimacy of the outcome): VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at 97 [19]; Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [209]; and NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561 at 583 [84].
3. Of course, context is vital to the assessment, albeit hypothetically constructed. It is, in the end, an assessment (through the construct of the fair-minded observer) of the behaviour of a person or persons in a position to exercise power over another, and whether that other person was treated in a way that gave rise to the appearance of unfairness being present in the exercise of state power.
4. A person in the appellant’s position, if the possibility of the truthfulness of his need for protection is to be assumed, as the undergoing of the very process of review dictates, is entitled to an apparently fair and dispassionate hearing, free of the appearance of premature assertions of disbelief, laced with moralising speeches. That does not mean that robust, vigorous questioning is not permitted, indeed perhaps called for. If a body of evidence or history during the process of the hearing lacks credibility or coherence, the Tribunal may feel bound, in fairness, to point that out. That is, however, not what happened here. The Minister argued that the assertions of disbelief and other statements by the Tribunal should be understood as expressions of difficulty with the evidence and requests for further assistance. No fair-minded observer, recognising the position of the applicant for a visa, would have so understood them.
5. The fair treatment, and apparent fair treatment, of an applicant called to give evidence and present arguments in a hearing under the Migration Act 1958 (Cth), s 425(1) involves the recognition of the dignity of the applicant (the subject of the exercise of power) in how the hearing is conducted. That recognition is an inhering element of fairness. Fairness, and its appearance, is (subject to clear statutory qualification, in the light of Parliament’s “assumed respect for justice”: Jarratt v Commissioner of Police (NSW) [2005] HCA 50; 224 CLR 44 at 56-57 [26], and to any impinging Constitutional consideration) an inhering requirement of the exercise of state power.
6. Nothing I have said reflects on what might be any strength, or weakness, of the appellant’s claims.
35.His Honour Flick J at [32]-[36], stated:
32. The use of “strong” language may not be sufficient to give rise to a reasonable apprehension of bias: Penhall-Jones v State of NSW [2007] FCA 925 at [92] to [97]. Buchanan J there concluded that the use of language such as the description of an offer as a “bribe” being “ridiculous” was not sufficient. Nor will “harsh tones” necessarily give rise to a reasonable apprehension of bias: SZNVM v Minister for Immigration and Citizenship [2010] FCA 261 at [31] per Katzmann J.
33. Common to all bases upon which an argument as to a reasonable apprehension of bias is advanced for resolution is the concern of the reviewing Court to ensure that a balance is struck between justice being seen to be done and the need to ensure that such arguments are not too readily accepted. A balance must be struck between an administrative decision-maker discharging an inquisitorial role being free to question and even vigorously test an account of facts being advanced by a claimant as opposed to the decision-maker whose mind is made up before the entirety of the evidence has been advanced for consideration. An initial assessment that claims lack substance may prove to be ultimately well-founded; equally, however, there remain cases where an initial assessment may prove to be ill-founded and misconceived.
34. Where that balance is to be struck in any given case necessarily depends upon a myriad of circumstances, including the legislative context in which a decision is made and the ability of a claimant to adduce evidence or to substantiate claims being made. In the present legislative context, those circumstances include the inquisitorial function entrusted to the Tribunal and the recurring need to resolve in many cases questions as to the credibility of the claimant.
35. In the circumstances of the present case it is concluded that the Appellant has established that a reasonable bystander might conclude that the Tribunal member might not be open to persuasion. A reasonable apprehension of bias, it is thus concluded, has been made out. This conclusion has been reached because:
- the exchanges that occurred went well beyond a mere expression of reservation as to whether what the Tribunal member was being told should be accepted – the exchanges exposed the Tribunal member expressing a concluded view before the entirety of the hearing had even concluded that she “[did not] believe any of that” and that she “[did not] believe what you’ve told me about this Muslim girl” and that she “[did not] believe ... that you’ve been pursued by the YCL”;
- the fact that those exchanges expressing a concluded view as to what the Tribunal member was saying should not be “believed” were not confined to an isolated instance but were repeated throughout the hearing;
- manner in which some of the questioning proceeded conveyed or was capable of conveying an overall assessment as to the evidence being given by the Appellant – the Appellant being told on at least two occasions not to be “silly”; and
- the Appellant when asking “[w]hat else can I say” was told by the Tribunal member that she did not “know what you can say because I don’t believe ... what you’ve told me...”.
This conclusion is also reinforced by:
the expression by the Tribunal member of her own value judgment that the Appellant’s claim to have made the Muslim girl pregnant would have “absolutely disgraced” the family of the girl and would have been “a great disgrace” as the Appellant would have “dishonoured this girl...”. Such expressions went beyond a means of eliciting a response from the Appellant and trespassed into the area of a concluded view that a failure on the part of the Appellant “to do something” could only be explained by the claim not being genuine.
A reasonable opportunity to be heard, it is concluded, requires that a decision-maker provide a claimant with an opportunity to be heard and an opportunity for the claimant to advance the entirety of his factual material and submissions before a conclusion is reached.
This conclusion as to there being a reasonable apprehension of bias is not denied by reason of:
- the length of the hearing itself – a two hour hearing, perhaps, not itself evidencing any “rush to judgment” to reach a predetermined conclusion or result;
- the fact that at the outset of the hearing the Tribunal member informed the Appellant that she would “point out to you anything that I think might be a problem with your claims” and that he would have “the opportunity during the hearing to comment on any such problem”;
- the fact that at the conclusion of the hearing the Tribunal member asked the Appellant: “... is there any comment you would like to make at this stage, or would you like to think about those things and provide something in writing for me within the next, say, couple of weeks”; and
- fact that a submission was made after the date of the hearing and was in fact taken into account by the Tribunal member.
Such considerations do not outweigh the conviction with which the Tribunal member expressed her conclusions during the course of the hearing and before the hearing was completed. Given the manner in which the hearing proceeded, a reasonable bystander might conclude that there was nothing much that the Appellant could say to shift the Tribunal member from the views she had previously expressed.
36.His Honour Robertson J, at [99], stated:
99. It would be an error, in my opinion, to judge one set of facts against another and to reason that, because the present case may be thought to have less extreme facts than another it would or should follow that the present case does not show a reasonable apprehension of bias. In each case the question of fact must be addressed: has apprehended bias been made out in that a properly informed lay person might reasonably apprehend that, as a matter of possibility (real and not remote) the Tribunal might not have brought an impartial mind to bear on the decision in that it had, from that perspective, formed the fixed view that the applicant had fabricated his account of events upon which he based his application for a protection visa and thus that his application failed?
37.The applicant submits that the posited fair-minded observer would reasonably apprehend that the Tribunal had predetermined the application and that conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly. The decision of the Tribunal is therefore infected with jurisdictional error.
Ground 3: The s.360 Hearing
38.Ground 3 relies on the same extracts set out above for Ground 2. The extracts show that the Tribunal stated on numerous occasions that it did not wish to take oral evidence from the applicant that the applicant could not verify, despite that evidence being critical to the applicant’s claims that he worked as claimed at Bakers Hut Bread Supplies, and which was material to whether he satisfied cl.485.224.
39.The Tribunal therefore failed to conduct the hearing prescribed by s.360 at which the applicant could give evidence and present arguments relating to the issues arising in relation to the decision under review. The failure to comply with s.360 is a jurisdictional error: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, per the Court at 162-163 [34]-[35].
Ground 5: The Tribunal failed to conduct the review required by law Particular 5(i)(a)
40.Particular 5(1)(a) pleads that the Tribunal failed to conduct the review required by law because it fettered its enquiry, and the giving of evidence by the applicant in relation to whether the applicant’s evidence was credible concerning his claimed work experience at Bakers Hut Bread Supplies by:
a)Its misinterpretation of the law that PIC 4020(1) required it to ‘focus on the concept of ‘no evidence’ (CB 291-292 at [152]) when its primary task was to first establish whether the applicant worked as claimed at Bakers Hut Bread Supplies.
41.On the Tribunal’s view of the law, if any such adverse evidence is before the Tribunal, the question of whether an applicant actually worked as claimed in an employment reference becomes nugatory, as the applicant would not satisfy PIC 4020(1). The question to be asked would then become one of whether the applicant met the waiver contained in PIC 4020(4). That construction is not one to be preferred, as it would be a capricious law so construed and subject to a declaration of invalidity.
97. In this Subdivision:…
“bogus document”
in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly;
42.That definition contains a requirement that the Minister ‘reasonably suspects’. That militates against the Tribunal’s interpretation of the law set out above. The Tribunal’s misinterpretation and or misapplication of the law constitutes jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, per McHugh, Gummow and Hayne JJ at 351-352 [82]-[84]. The Tribunal therefore failed to conduct its core function of review: Minister for Immigration and Citizenship v Li & Anor (2012) 202 FCR 387, per Greenwood and Logan JJ, at 395 [26]-[30]; Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332, per French CJ at 624 [5] and 627 [14].
Particular 5(ii)
43.The Tribunal also failed to conduct the review required by law because, given CA’s cooperation with the authorities, it failed to ask CA to answer determinatively the question of whether the First Applicant worked at Bakers Hut Bread Supplies as claimed. That was an enquiry that it should have made: Minister for Immigration and Citizenship v SZGUR & Anor (2011) 241 CLR 594 at 603 [23], per French CJ and Kiefel J where their Honours stated:
In Minister for Immigration and Citizenship v SZIAI (36) the Court considered the implications of its designation, in earlier decisions (37), of Tribunal proceedings as “inquisitorial”. As was pointed out in that case, the term “inquisitorial” has been applied to tribunal proceedings to distinguish them from adversarial proceedings and to characterise the Tribunal’s statutory functions (38). As the plurality judgment stated (39):
“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.”
Minister’s Submissions
Ground 1
44.The Minister submits that Ground 1 as explained by the applicant’s written submissions, the Applicant contends that the Tribunal erred by failing to comply with s.359A of the Migration Act. The only “information” that is now relied on is the “Agreed Summary of Material Facts” from the Victorian County Court proceedings. The other pieces of “information” are abandoned: (see [24] above).
45.The Minister submits that there are three answers to this. First, it is not clear that the Agreed Summary of Material Facts itself, as opposed to its contents in particular, constitutes information for the purposes of s. 359A. Secondly, the Tribunal did comply with s.359AA. This is clear from the Transcript at pp.70-77 (see also CB 274 [98]-[105]). It follows that the obligation under s.359A did not arise. Thirdly, and in any event, the Tribunal wrote to the applicant under s.359A in terms which clearly set out the particulars of the information: see CB 204-216, particularly at CB 205-207 and CB 209.
Ground 2
46.The Minister submits that in Ground 2, the applicant contends that the Tribunal’s decision should be set aside because of apprehended bias. The applicant says that this apprehension is revealed because the Tribunal declined to put a question that the applicant’s representative wanted the Tribunal to put to the applicant. While it is unclear, the Minister also understands the applicant to say that the apprehension arose because the Tribunal relied on a comparison made by the Minister’s department between the reference submitted by the applicant and the fraudulent references.
47.The test for apprehended bias is well-established. It is whether a hypothetical fair-minded lay person, properly informed as to the nature of the proceedings or process, might reasonably apprehend that the decision-maker might not have brought an impartial mind to making the decision: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. An allegation of apprehended bias must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The apprehension must be “firmly established”: Re JRL; Ex parte CJL (1986) 161 CLR 342. The Minister submits that there is no apprehended bias here.
48.The Minister contends that the fair-minded lay observer would know:
a)The statutory context in which the Tribunal’s review task takes place, including the visa type (skilled) and the applicable criteria (skills assessment based, in part, on achieving a number of hours work experience, as well as PIC 4020);
b)The legal issue, being whether the applicant satisfied PIC 4020, particularly whether there was “no evidence” that the Applicant had given a “bogus document” (as defined in s.97 of the Migration Act);
c)The background to the legal issue, being the outcome of investigations that showed that a person (who was the applicant’s teacher at his place of learning) had admitted and pleaded guilty to the manufacture and sale of work references matching the one submitted by the applicant to obtain a skills assessment; and
d)The factual issue, being the nature and duration of the applicant’s work experience and, in particular, whether he had actually completed the 900 hours work experience required.
49.The fair-minded lay observer would also know that the applicant had not given any written evidence (e.g. in the form of a declaration) to the Tribunal before the hearing on 24 October 2012. Contrary to the applicant’s written submissions, the passages of the transcript cited by the applicant do not evince an apprehension of bias. They must be put in their proper context, not only of the aspects identified above but in the course of the hearing:
a)From Transcript pp.10-21 (Q83-Q186), the Tribunal asked the Applicant a number of questions about work at the bakery including “the location of this business, the identity of its owner, the applicant’s work hours and duties whilst undertaking his work experience, storage practices in this business, what decorating techniques the applicant had learned … and how he had applied OH&S principles in the workplace”: CB 290 at [152]. This took over an hour: CB 290 at [151];
b)At Transcript p. 32, the following exchange appears:
TRIBUNAL MEMBER: Q240 O.K. All right. Now, Mr Dobbie, are there any questions you’d like me to ask Mr Sandhu?
MR DOBBIE: Perhaps only if there’s anything else he can say to support his claim he worked at Bakers Hut, any other knowledge he had of the business.
TRIBUNAL MEMBER: Q241 Is there anything else you know about the business that would assist the Tribunal to form a view that you did work there?
APPLICANT: I provided the photographs to Department as well.
TRIBUNAL MEMBER: Q242 O.K.
APPLICANT: And which clearly chows that I’m working in a bakery wearing the proper, operating in a bakery.
(Transcript, p.32)
As can be seen, the open question asked by the Tribunal, in accordance with the applicant’s representative’s request, resulted only in an answer about the provision of photographs;
c)This led to the exchange at Transcript pp.32-35 (Q243-Q254) as to some of the evidentiary deficiencies confronting the applicant;
d)While the Tribunal did not ask the question at Transcript p.35 (Q255), it acceded to the request at Transcript p.36 (Q257-259), although the evidence adduced suffered the limitations discussed at Transcript pp. 36-38 (Q260-266); and
e)At Transcript pp. 40-41 (Q272-Q277), the Tribunal repeated the evidence it had already explored.
50.The Tribunal’s reticence to ask the questions at Transcript pp.41-42 (Q277-Q280) about “unique knowledge” and the “intricacies of that bakery” is well-placed. In addition to the obvious probative limitations of the question (as properly and fairly outlined by the Tribunal), the questions were not to the point. While they may have evidenced familiarity with work at a bakery, they did not go to the nature and duration of that work experience – i.e., it did not go to the 900 hours’ issue. In its proper context, the Tribunal’s decision not to ask those questions is not evidence of apprehended bias.
51.It is unclear how any apprehension of bias can arise from the fact that the Tribunal relied upon a departmental comparison of the applicant’s reference to those admitted to be fraudulent. First, there is no dispute as to the outcome of the comparison. Secondly, and in any event, the applicant was given this information and invited to respond to or comment on it.
Ground 3
52.By Ground 3, the applicant contends that the Tribunal erred by failing to give a hearing under s.360, as explained by the High Court (with reference to its cognate, s.425) in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152.
53.The Minister argues that there was no breach of s.360. The Tribunal invited the applicant to attend a hearing. The applicant chose not to give any written evidence or declarations to the Tribunal beforehand. The hearing was held on 24 October 2012. As discussed above, the applicant was not prevented from giving any relevant and probative evidence. The legal and factual issues were fully canvassed at the hearing. There can be no serious suggestion that the applicant was denied an opportunity “to give evidence and present arguments relating to the issues arising in relation to the decision under review”.
Ground 5
54.By Ground 5, the applicant says that the Tribunal erred, variously, by:
a)Asking the wrong question;
b)Failing to make an inquiry.
55.As to the first, the applicant says that the Tribunal should have asked itself whether the applicant “had worked as claimed at the bakery”. The Tribunal posed and answered the right question at CB 303 [209]-[213].
56.As to the second, the applicant says that the Tribunal should have made an enquiry of “Mr A [or CA] to answer determinatively the question of whether the First Applicant worked at [the bakery] as claimed”.
57.The Minister submits that there are two points in answer. First, it is unclear how the obligation to make any such enquiry arose in the circumstances of this case: see Minister for Immigration and Citizenship v SZIAI & Anor (2009) 259 ALR 429. This is particularly so having regard to the particular circumstances and conviction of Mr CA. Secondly, and in any event, Mr CA could not give a determinative answer to the question. Mr CA was the applicant’s teacher: see CB 270 at [69]. He was not the owner of the bakery. That was “Mr X”. The evidence was that the applicant had tried to speak to Mr X but was unsuccessful: see CB 270 at [72].
Consideration
Ground 1
58.Ground 1 of the application pleads a failure by the Tribunal to comply with s.359A of the Migration Act (see [21] above). It is claimed that the obligation under s.359A arose in respect of the Tribunal’s reliance on the Agreed Summary of Material Facts (see [22] above).
59.Having regard to the submissions made by both parties, I am satisfied this ground can be sustained. At [98]-[99] of its Decision Record, the Tribunal stated:
98. In accordance with section 359AA of the Act, the Tribunal invited the applicant to comment upon the following information that might a reason for affirming the decision under review.
99. Specifically, the Tribunal noted the details of the information set out in the ‘Agreed Summary of Material Facts’ it had received from the Department, the fact that Mr X and Bakers Hut were implicated in Mr A’s conduct, the newspaper reports on Mr A’s conviction, the ASIC records and Google Maps image relating to Bakers Hut, and the departmental comparison report dated 18 June 2012 regarding the applicant’s work reference that was found to be in the possession of Mr A.
60.As submitted by the Minister, the Tribunal went through the steps contemplated by s.359AA of the Migration Act at pp.70-77 of the Transcript. Therein, the Summary of Agreed Facts is not expressly referred to, though the Tribunal Member does refer to “information regarding the conviction of [Mr CA]” (T.71).
61.Sections 359AA and 359A provide two alternate methods of providing information to an applicant appearing before the Tribunal. Initially I deal with s.359A – “Information and Invitation given in Writing by Tribunal”. If this approach is adopted, which was followed in these proceedings, the requirements are clearly stated by his Honour Bromberg J in MZYHF v Minister for Immigration and Citizenship (supra) at [31] where his Honour was considering the complementary provision in respect of the Refugee Review Tribunal review as follows:
31. As Flick J further noted at [44] of SZMTJ, s 424A(1)(b) imposes what has been said to be “strict requirements”. His Honour referred to the decision of Rares J in SZEOP v Minister for Immigration and Citizenship [2007] FCA 807, where Rares J said that s 424A(1)(b) required the Tribunal to ensure, as far as reasonably practical, that it identified to the visa applicant why the information was relevant to the review. Such an identification is necessary to avoid the visa applicant being left to choose between uncertain inferences that might otherwise be available. The visa applicant needs to be told by the Tribunal why the information is relevant to the review. That obligation is not fulfilled if the Tribunal leaves it to chance that the visa applicant appreciates the relevance of the information from the course of the hearing, or from other circumstances surrounding the way in which the review was being conducted: SZEOP at [36].
62.On 4 December 2012 the Tribunal issued a letter of the type described in s.359A addressed to Mr Sandhu and Mrs Sandhu, being an “Invitation to Comment on or Respond to Information – Mr Japinder Singh Sandhu and Mrs Kanwal Preet Kaur Sandhu.” That is a nine page letter but contains no specific reference to the “Agreed Summary of Material Facts” which had been filed in the county court of Victoria of Melbourne in its criminal jurisdiction in the matter R v (C.A. – Suppression Order)
63.At the end of the 4 December 2012 letter, it indicates the following:
Attachments: County Court of Victoria Court Order dated 13 November 2012.
Copies of the ASIC Records before the Tribunal.
64.The Court order which is three pages in length and appears in the Court Book at 231-233, carries a hand written notation “Appendix ‘A’” appears to be the document identified as the first attachment.
65.Immediately following the Court order is the Agreed Summary of Material Facts (CB 234-253) but there is no reference or indication that those documents are attached and that the Agreed Summary of Material Facts was included in the first attachment to the s.359A letter.
66.In the body of the s.359A letter, it states:
On 30 November 2012 the Country (sic: county) Court of Victoria varied a previous amended order made by the Court of 4 November 2011 in respect to [Mr CA]. The Court Order is attached for your information.
67.This statement makes no reference to the Agreed Summary of Material Facts. The balance of the s.359A letter sets out a number of issues in which the Tribunal is inviting the applicant to respond in writing by 2 January 2013. Within those questions, there is no reference to the Agreed Summary of Material Facts.
68.The alternative method involves resorting to s.359AA approach by providing the applicant information orally during the hearing and inviting the applicant to respond and should be done within the provisions of that section. The Tribunal adopted this approach and the information that was provided is recorded in the hearing transcript at Q.446, Q.447 and Q448: Devine Affidavit, Annexure “A”, p. 70-76.
69.The Tribunal Member provided the following introduction to the information:
Q. 446 Now, Mr Sandhu, the hearing is an opportunity for you to give evidence and to present arguments in support of your application. There is some information before the Tribunal that might be a reason for affirming the decision to refuse you and your wife a visa. I’ll explain what that information is carefully so that you can understand and so you can understand why it’s relevant to the Tribunal’s decision. I will also ask you to comment on the information and respond to it. Please tell me if you don’t understand the information or if you don’t understand why it’s relevant to the Tribunal’s decision. If you want more time to respond or to comment on the information, please tell me and I will consider whether to adjourn to give you more time. Now, the information is in the following categories
(Annexure “A”, p.70-71)
70.A careful review of that material does not contain any reference to the Agreed Summary of Material Facts.
71.If I now turn to the Decision Record delivered on 13 June 2013 and I refer to the following passages, under the heading Review Application:
27. On 14 February 2012 the Department provided the Tribunal with an ‘Agreed Summary of Material Facts’ relating to its investigation into Mr A who had allegedly assisted applicants to provide fraudulent documentation, including false work references, explanation letters and employment offers, in support of their applications for skills assessments under the general skilled migration program. The fraud allegedly took place during the period of 1 November 2006 and September 2009, and allegedly involved the creation of 777 false documents.
(CB 262)
72.The following passage is under the heading The Tribunal’s Oral Invitation to Comment on or Respond to Information in the Decision Record where it stated:
98. In accordance with s.359AA of the Act, the Tribunal invited the applicant to comment upon the following matters that might be a reason for affirming the decision under review.
99. Specifically, the Tribunal noted the details of the information set out in the ‘Agreed Summary of Material Facts’ it had received from the Department, the fact that Mr X and Bakers Hut were implicated in Mr A’s conduct, the newspaper reports on Mr A’s convictions, the ASIC records and the Google Maps image relating to Bakers Hut, and the departmental comparison report dated 18 June 2012 regarding the applicant’s work reference that was found to be in the possession of Mr A.
(CB 274)
73.The following passage is under the heading Conduct of the Tribunal Hearing, where it states:
173. However, there is information that casts doubt upon (sic) whether the applicant actually undertook the required 900 hours’ work experience at Bakers Hut, as claimed. Specifically, the information that raises the question as to whether subclass 4020(1) is satisfied consists of:
∙ Information relating to Mr A’s conduct:
∙ The ‘Agreed Summary of Material Facts’ relating to the departmental investigation into Mr A, as a former teacher at Della International College. This information indicates that Mr A, along with a number of employers, allegedly assisted applicants by creating 777 false documents, including dales work references, explanation letters and employment offers, that applicants could then use in support of their applications for skills assessments under the general skilled migration program. The fraud allegedly took place during the period 1 November 2006 and 29 September 2009’
(CB 296)
…
208. The Tribunal finds that these facets to the facts and material before it lend support to the view that the information arising from the departmental investigation, including the ‘Agreed Summary of Material Facts’, the advice that the applicant’s employer was implicated in Mr A’s fraud, the departmental comparison report regarding the applicant’s work reference from Bakers Hut, the ASIC records, the ATO advice regarding Mr X, Mr A’s admissions to the Australian Federal Police and the County Court that resulted in his conviction, are reliable sources of information that cast doubt upon the accuracy of the contents of the applicant’s work reference from Bakers Hut.
(CB 302)
…
210. Accordingly. Having regard to the legal test as set out by Edmonds J in Talukder’s case, the Tribunal considered that the facts conveyed by the information arising out of the departmental investigation, the ‘Agreed Summary of Material Facts’, the departmental advice that Bakers Hut was implicated in Mr A’s fraud, Mr A’s statement to the Australian Federal Police, the departmental comparison report, the ASIC records and ATO report, Mr A’s conviction and Mr X’s conduct since the departmental investigation began, constitute probative evidence that casts serious doubt as to whether the applicant had actually completed 900 hours’ work experience at Bakers Hut, as required by Trades Recognition Australia in 2008.
(CB 303)
74.As noted in [98] of the Decision Record the Tribunal apparently placed no reliance on the Tribunal’s 4 December 2012 letter, presumably issued to be in compliance with s.359A,but rather elected to rely on compliance with s.359AA as stated.
75.The Tribunal’s findings indicate that it relies on the information arising from the following sources:
a)The Departmental investigation;
b)The Agreed Summary of Material Facts;
c)Departmental advice that Bakers Hut was implicated in Mr A’s fraud, Mr A’s statement to the Australian Federal Police;
d)The Department’s comparison report;
e)ASIC Records and ATO Report;
f)Mr A’s conviction and Mr X’s conduct since the Departmental investigation
Consistent in each reference in the Decision Record to the Agreed Summary of Material Facts, implies that the specific report is being taken as a separate, unique body of information, separate from the material listed above.
The Court has before it, the Agreed Summary of Material Facts (CB 234), the Tribunal’s information relevant to the review, set out at [100] of the Decision Record together with the transcript of the Tribunal hearing. It is not possible to make a correlation between these three sources to establish that all aspects of the Agreed Summary of Material Facts have been fully and adequately conveyed to the applicant, yet that summary has been identified as being a source that is integral to the Tribunal’s Decision. As s.359A has not been relied upon in the decision making process and s.359AA has not been strictly complied with, these failures constitute jurisdictional error on the part of the Tribunal.
Grounds 2, 3 and 5
77.The assertions pleaded in these grounds are addressed above. Ground 2 is relevantly addressed by the applicants at [28]-[37] above and by the Minister at [46]-[51]. Ground 3 is relevantly addressed by the applicants at [38]-[42] and by the Minister at [52]-[53]. Ground 5 is relevantly addressed by the applicant at [40]-[43] above and the Minister at [54]-[57] above.
78.I have considered the submissions advanced by both parties, as well as the oral submissions made at the hearing. I am not satisfied any of the three grounds advanced by the applicants can be sustained and am of the view Mr Bevan’s submissions correctly address these grounds., however, no further consideration of these grounds needs to be made.
Conclusion
79.On the basis of the Court’s finding the Tribunal committed jurisdictional error in respect of ground 1, writs should be issued and the applicants’ visa claim remitted to the Tribunal for reconsideration according to law. The Minister should also be ordered to pay the applicants’ costs.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones
Associate:
Date: 19 June 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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