Sandhu v Minister for Immigration
[2013] FMCA 140
•4 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SANDHU v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 140 |
| MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether the Migration Review Tribunal failed to take into account the applicant’s claims in exercising its discretion to cancel the applicant’s Subclass 880 (Skilled – Independent Overseas Student) visa – whether the Migration Review Tribunal complied with section 359AA of the Migration Act 1958 (Cth) – whether the Migration Review Tribunal properly exercised its discretion to cancel the applicant’s subclass 880 visa pursuant to section 109 of the Migration Act 1958 (Cth). |
| Federal Magistrates Act 1999 (Cth), s.88F Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.97, 101, 103, 107, 109, 359, 359AA, 359A, 474, Pt.8 Migration Regulations 1994 (Cth), reg.2.41, cls.485.223, 485.224, Sch.2 |
| Zhong v Minister for Immigration and Citizenship & Anor (2008) 171 FCR 444 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 SZNKO v Minister for Immigration and Citizenship and Another (2010) FCR 505 Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd and Another (2011) 194 FCR 11 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 |
| Applicant: | GURPREET SINGH SANDHU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 1369 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 25 February 2013 |
| Date of Last Submission: | 25 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 4 March 2013 |
REPRESENTATION
| Appearing for the Applicant: | Mr N Dobbie |
| Solicitors for the Applicant: | Dobbie and Devine Immigration Lawyers |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The proceeding before this Court, commenced by way of application filed on 22 June 2012, is dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $5,400.00.
NOTE: The application for costs is in accordance with the relevant schedule in the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1369 OF 2012
| GURPREET SINGH SANDHU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 21 May 2012 and handed down on 22 May 2012 (“the Tribunal”).
The applicant claims to be a citizen of India.
The issues in this case are whether the Tribunal failed to take into account the applicant’s claims in exercising its discretion to cancel the applicant’s Subclass 880 (Skilled – Independent Overseas Student) visa; whether the Tribunal complied with s.359AA of the Act; and, whether the Tribunal properly exercised its discretion to cancel the applicant’s subclass 880 visa pursuant to s.109 of the Act. These issues are considered below in the context of considering whether the Tribunal’s decision is affected by jurisdictional error.
Background
On 23 August 2005, the applicant arrived in Australia on a student visa to study at the Brighton Institute of Technology.
On 2 July 2007, the applicant lodged an application for a Subclass 880 (Skilled – Independent Overseas Student) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
As a requirement of the visa, the applicant had his skills assessed by Trades Recognition Australia (“TRA”) prior to the lodgement of his visa application. The applicant submitted evidence to TRA that he had completed 900 hours of work experience at Ice Pro Café & Restaurant. TRA accordingly recognised the applicant’s nominated occupation as being a cook.
Based on the information provided by the applicant, on 18 January 2008, the Department granted the applicant a Subclass 880 (Skilled – Independent Overseas Student) visa.
On 13 August 2010, the Department notified the applicant that consideration was being given to the cancellation of the applicant’s visa. The Department’s letter informed the applicant that adverse information relating to the applicant’s claimed occupation had been attained as part of an ongoing investigation.
The Department informed the applicant that investigations undertaken by the Department indicated that the applicant had never been employed by Ice Pro Café & Restaurant and that he did not have the necessary work experience as a cook, as he had claimed with TRA.
The Department’s letter informed the applicant that on 19 January 2010, the Department had obtained a signed witness statement from Mr Angelo Torcasio, owner of Ice Pro Café, which stated that the applicant had never been employed at Ice Pro Café. The Department’s letter invited the applicant to comment within 14 days of the receipt of the letter.
The applicant sought an extension of time in which to comment and was notified by the Department that a response was required by 30 September 2010.
On 30 September 2010, the applicant forwarded a letter via email to the Department in response to the Department’s letter dated 19 January 2010.
On 29 October 2010, the Department found that the applicant did not comply with s.101 and s.103 of the Act and cancelled the applicant’s visa pursuant to s.109 of the Act.
On 5 November 2010, the applicant lodged an application for review of the Delegate’s decision by the Migration Review Tribunal.
On 1 April 2011, the Migration Review Tribunal affirmed the decision of the Delegate to cancel the applicant’s visa.
The applicant filed an application in this Court seeking judicial review of the Migration Review Tribunal’s decision and on 25 May 2011, the Court made orders by consent quashing the Migration Review Tribunal’s decision and remitting the matter to the Tribunal for reconsideration.
On 21 May 2012, the Tribunal reaffirmed the decision of the Delegate to cancel the applicant’s visa.
Legislative framework
The relevant legislative provisions are as follows:
“101 Visa applications to be correct
A non-citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
…
103 Bogus documents not to be given etc.
A non-citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented or provided.
…
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non-compliance by the holder of a visa; and
(b) considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.”
The Tribunal’s review and decision
On 27 March 2012, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 20 April 2012.
On 20 April 2012, the applicant appeared before the Tribunal and gave evidence.
The decision of the Tribunal is accurately summarised by counsel for the First Respondent in her written submissions as follows:
“19. The hearing proceeded on 20 April 2012 as scheduled (CB 253). In the course of the hearing, it put information to the applicant pursuant to s.359AA of the Act, which included (TS 21):
(a) A Department of Immigration investigation had obtained evidence that over 3 years from 2006, CA[1] assisted international students to obtain permanent residence in Australia by creating false reference letters.
(b) CA had made a statement to the Australian Federal Police in which he stated that various employers were falsely nominated in documents as having provided 900 hours or more of work experience in the relevant trade.
(c) The Café was one of the employers listed in the Agreed Summary of Material Facts in the County Court proceedings relating to CA as having been falsely nominated in the documents as providing the requisite hours of work experience.
(d) In a separate statement given to the Department in January 2010, Mr Torcasio, the owner of the café since 2006, claimed he only ever employed 2 people on a voluntary basis, one of whom worked at the business for 1 month and the other for less than one month. He also claimed that no person completed 900 hours of work experience at the Café, and if a Commonwealth agency held a document detailing that amount of work experience at the Café, then it contained false information.
20. On 22 May 2012, the Tribunal notified the applicant of its decision to affirm the decision of the Minister’s delegate (CB 273).
21. The Tribunal found that the applicant did not work 900 hours at the Café, and that the reference from Mr Torcasio was false. It further found that the letter from TRA was obtained because of a false statement by the applicant, namely that he had 900 hours of experience from the Café. The applicant then provided this bogus document (within the meaning of s.97(c)) to the Department in support of his visa application. On the basis of these findings, the Tribunal concluded that there had been non-compliance with s.103 of the Act (at [108], [114]).
22. In reaching this conclusion, the Tribunal placed great weight on the information it had put to the applicant (at [99], CB 306). It noted that the applicant had elected to make no comment in response to the Tribunal’s s.359AA information at the hearing before it, but nonetheless considered responses the applicant had previously given when this type of information had been put to him, namely that CA had ripped off vulnerable students who had provided free labour to employers (at [101], CB 307). Contrary to this submission, the Tribunal considered there was overwhelming evidence that the applicant was a willing participant in the scam operated by CA whereby he produced false work references for overseas students to be used in TRA skills assessment applications. In light of Mr Torcasio’s statement that no student ever completed 900 hours of work experience at the Café, the Tribunal considered it wholly implausible that the applicant could manage to complete those 900 hours at the café without his employer’s knowledge (at [102], CB 307).
23. On the question of whether it should exercise its discretion to cancel the applicant’s visa, the Tribunal worked through each of the factors prescribed in reg.2.41 of the Regulations, and considered the other matters set out in the Procedures and Advice Manual (PAM3) (at [119]-[132], CB 310-311). It noted that the applicant had referred to his family members in India, and to health problems being suffered by his father, and that if his visa were cancelled his hopes for his future life in Australia would be destroyed (at [133]-[134], CB 312). In deciding to cancel the applicant’s visa, the Tribunal considered it equally important that the integrity of the Australian immigration scheme was not diminished by those who wish to circumvent proper process (at [135], CB 312).”
[1] Information relating to CA’s co-operation with police or other law enforcement agencies or his undertaking to give evidence in any future legal proceedings is the subject of a suppression order made by Cannon J on 30 November 2012.
The proceeding before this Court
The applicant was represented before this Court by Mr Dobbie, solicitor.
On 7 November 2012, the applicant filed an amended application. On 25 November 2012, the applicant filed a document titled “Applicant’s Outline of Submissions”.
At the commencement of the hearing, by consent, the Court made orders pursuant to s.88F of the Federal Magistrates Act 1999 (Cth) suppressing the identification of an informant, CA, in certain documents contained in the Court Book filed on 6 August 2012, and marked Exhibit 1R.
The applicant’s solicitor, Mr Dobbie, confirmed that he relied on the grounds contained in the amended application filed on 7 November 2012 as follows:
“1. The Tribunal failed to take into account a relevant consideration.
Particulars:
(i) In exercising its discretion to cancel the Applicant’s subclass 880 visa, the Tribunal failed to take into account the Applicant’s claims:
(a) That he had been resident in Australia for over seven years; and
(b) That he was supporting his family in India; and
(c) That cancellation of his visa would also have severe consequences on his family overseas.
(d) That he had some shops in India that were ‘captured’ by two people.
2. The Tribunal failed to comply with s.359A of the Migration Act 1958
Particulars:
(i) The Tribunal committed jurisdictional error by failing to comply with s.359A of the Migration Act 1958.
(a) The Tribunal relied on adverse information to affirm the decision contained in the Tribunal’s decision, which stated that:
· CA had assisted international students to obtain permanent residence in Australia by creating false work references.
· CA made a statement to the Australian Federal Police confessing to having manufactured hundreds of false documents which were subsequently lodged by international students with TRA in support of skill assessment applications, most of which resulted in a positive skills assessment.
· CA was paid between $1500 - $2500 per document by international students hoping to obtain permanent residence or to have been paid by their migration agents.
· Various employers were falsely nominated in the documents as having provided 900 hours or more work experience in the nominated trade.
· One of the employers listed in the Agreed Summary of Material Facts in the County Court proceedings relating to CA as having been falsely nominated in the documents as having provided 900 hours or more work experience in the nominated trade was Ice Pro Café and the false documents issued in that employer’s name were work references.
· In a separate statement given to DIAC in January 2010, the owner of Ice Pro Café since 2006, Angelo Torcasio, claimed that he only ever employed 2 people on a voluntary basis, one worked for the business for 1 month and the other for less than one month. Mr Torcasio also claimed that no person completed 900 hours of work experience at Ice Pro Café. He further stated that if any document held by any commonwealth Government Agency detailed 900 hours work experience from Ice Pro Café, then it contained false information.
(b) In giving the Applicant the above information orally at the hearing the Tribunal did not comply with s.359AA of the Act, because it did not understand, and it did not explain to him that a response could be in writing, such that he could have been offered an adjournment to go and make his own enquiries in relation to that adverse information and provide a meaningful response to that adverse information.
(c) The adverse information set out at paragraph (a) above was not given to the Applicant in accordance with s.359A or s.359AA of the Act.
(ii) The Tribunal also relied on information that Mr Angelo Torcasio had not been the owner of the Ice Pro Cafe until the second half of 2006, to undermine the Applicant’s claim that he worked at the café as claimed.
(a) That adverse information was not given to the Applicant in accordance with s.359A or s.359AA of Act.
(iii) The Tribunal had a sworn statement before it from Mr Angelo Torcasio or relied on information from his worn statement, that no student had ever completed 900 hours of work experience at his restaurant. That statement would be the reason or part of the reason for affirming the delegate’s decision, as to undermined the Applicant’s claim that he worked at Ice Pro Café.
(e) Clear particulars of that information, being the statement and that it was a sworn statement, were not given to the Applicant in accordance with s.359A or s.359AA of the Act.
(iv) The Tribunal had a list of employers and document types before it. That list of employers and document types before the Tribunal would be the reason for affirming the delegate’s decision, as it undermined the Applicant’s claim that he worked at Ice Pro Café.
(a) Clear particulars of that information, being the list of employers and document types, were not given to the Applicant in accordance with s.359A or s359AA of the Act.
(v) The Tribunal had a statement before it given by CA to the Australian Federal Police, dated 21 April 2011. That statement would be the reason or part of the reason for affirming the delegate’s decision, as it undermined the Applicant’s claim that he worked at Ice Pro Café.
(a) Clear particulars of that information, being the statement, were not given to the Applicant in accordance with s.359A or s.359AA of the Act.
3. The Tribunal misapplied the law to the facts or misinterpreted the applicable law
Particulars:
(i) The Tribunal affirmed the cancellation of the Applicant’s visa in circumstances where the law did not permit cancellation.
(a) It is a precondition to the valid exercise of the cancellation power contained in s.109 of the Act that the power can only be exercised in relation to the particulars contained in a notice given under s.107 of the Act.
(b) The notice given to the Applicant under s.107 of the Act stated that the Applicant did not comply with s.13 of the Act because he had purportedly given a bogus document to an officer of the Department in relation to his subclass 880 visa application (the visa which was subsequently cancelled).
(c) The Applicant did not give a bogus document to an officer of the Department assessing the Applicants visa application.
(d) The Tribunal was therefore not permitted to affirm the delegate’s decision on the basis of particulars that were not contained in the s.107 notice.
4. The Tribunal did not provide the Applicant with the hearing prescribed by s.360 of the Act, or did not carry out its core function of review
Particulars:
(i) The Tribunal considered that he online application system used by the Applicant in relation to his subclass 880 visa application was not an ‘authorised system’. This was a material issue for the purposes of the review application before the Tribunal as the Tribunal found that the Applicant did not give his skills assessment from Trades Recognition Australia to an ‘authorised system’. The Tribunal then failed to invite the Applicant to give evidence and to present argument on that issue in breach of its obligations under s.360 of the Act.
(ii) The Tribunal held a hearing on 20 April 2012. At that hearing, the Tribunal put information to the Applicant for comment that it knew, or ought to have known, it was incorrect.
(a) That Mr Angelo Torcasio had been the owner of the Ice Pro Café since 2006, when he had only been the owner of that café, according to the Tribunal’s decision, since the second half 2006; and or
(b) That one of the employers listed in the Agreed Summary of Material Facts in the County Court proceedings relating to CA was Ice Pro Café, when Ice Pro Café was not named in that agreed summary; and
(c) by doing so, the Applicant was not given the opportunity to present evidence and give argument to the issues arising in relation to the decision under review. ”
Ground 1
The applicant relied only on Ground 1(a).
The applicant’s solicitor, Mr Dobbie, submitted that a question arose as to whether the Tribunal had lawfully exercised its discretion under s.109 of the Act in cancelling the applicant’s visa having found that the applicant had failed to comply with s.101 and s.103 of the Act insofar as he had provided a bogus document about his employment with Ice Pro Café.
Having decided that there was non compliance by the applicant of a condition of his visa because the applicant provided a bogus document, the Minister may cancel the visa after, inter alia, having regard to any prescribed circumstances (see Zhong v Minister for Immigration and Citizenship & Anor (2008) 171 FCR 444). Regulation 2.41 of the Migration Regulations 1994 (Cth) (“the Regulations”) prescribes the following circumstances:
“2.41 Whether to cancel visa — incorrect information or bogus document (Act, s.109 (1) (c)
For the purposes of paragraph 109 (1) (c) of the Act, the following circumstances are prescribed:
(a) the correct information;
(b) the content of the genuine document (if any);
(c) the likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document;
(d) the circumstances in which the non‑compliance occurred;
(e) the present circumstances of the visa holder;
(f) the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
(g) any other instances of non‑compliance by the visa holder known to the Minister;
(h) the time that has elapsed since the non‑compliance;
(j) any breaches of the law since the non‑compliance and the seriousness of those breaches;
(k) any contribution made by the holder to the community.
Note: Under s. 109 of the Act, the Minister may cancel a visa if there was non‑compliance by the holder of a kind set out in Subdivision C of Division 3 of Part 2 of the Act. The Minister is to have regard to the prescribed circumstances in considering whether to cancel the visa.”
[Emphasis added]
Mr Dobbie submitted that the Tribunal had failed to consider all the present circumstances of the applicant relied on by the applicant in support of reg.2.41(e) of the Regulations.
In support of that submission, Mr Dobbie referred the Court to a written submission provided by the applicant’s then migration agent, dated 28 September 2010, that requested the decision maker to have regard to certain identified matters. Relevantly, the submission stated that:
“The applicant has spent more than sufficient time in Australia in as much as the applicant has spent more than 5 years in Australia and has become an important part and parcel of Australian Society.”
Mr Dobbie submitted that the length of time the applicant has spent in Australia was a submission provided in support of reg.2.41(e) of the Regulations in addressing the present circumstances of the applicant.
Mr Dobbie submitted that in considering the circumstances prescribed in reg.2.41(e) of the Regulations, the Tribunal did not have regard to that earlier written submission.
In the Findings and Reasons section of its decision, the Tribunal stated as follows in relation to the present circumstances of the applicant:
“The applicant is working as a security guard. He claims that his father in India has high blood pressure and is having problems with his renal system because of the strong medicine he takes, and this has depressed the applicant.”
In the Claims and Evidence section of its decision record, under the heading ‘The Present Circumstances of the Visa Holder,’ the Tribunal noted that at the earlier hearing before the Migration Review Tribunal, the applicant had said he was working as a security guard. The Tribunal asked the applicant if he was still working as a security guard, and the applicant responded “yes”.
The Tribunal then asked the applicant if there was anything else about his present circumstances that he wished the Tribunal to take into account. The applicant referred to his father’s health and the applicant’s depression. That information did not form part of the migration agent’s written submission, dated 28 September 2010.
The reference in the written submission, dated 28 September 2010, to the applicant spending more than five years in Australia and becoming “an important part and parcel of Australian society” is expanded upon in the written submission where it referred to the applicant’s stay in Australia in the last five years and the significant contribution he had made to the Sikh community during that time in lending his skills as a cook. In my view, those submissions address the applicant’s contribution to the community and are therefore referable to reg.2.41(k) of the Regulations, and not reg.2.41(e) of the Regulations.
At the hearing before the Tribunal, the applicant expanded upon his contribution to the community in response to the Tribunal asking him if there was anything else he wished to say about his contributions to the community.
The Tribunal’s decision record makes clear that if the applicant had wished to rely on his five years in Australia as part of his present circumstances referable to reg.2.41(e) of the Regulations, he was clearly invited by the Tribunal to make whatever submission he wished in support of his present circumstances. As stated above, the Tribunal’s decision record makes clear that the Tribunal had a detailed exchange with the applicant about his present circumstances. None of the exchanges referred to by the Tribunal suggest that the applicant put forward to the Tribunal as part of his present circumstances that he had remained in Australia for more than five years.
No complaint or submission was made by the applicant as to the accuracy of the Tribunal’s summary of its exchanges with the applicant on this matter.
A fair reading of the written submission does not identify that the applicant had been in Australia for more than five years as a relevant submission for consideration in support of reg.2.41(e) of the Regulations. I accept the written submission of counsel for the first respondent, Ms Mitchelmore, that the written submission, dated 28 September 2010, was put forward as no more than a general submission as to why the applicant should be allowed to stay. The written submissions did not squarely raise that the applicant had been in Australia for more than five years as a submission made in support of reg.2.41(e) of the Regulations (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]) .
A fair reading of the Tribunal’s decision makes clear that the Tribunal was aware that the applicant has spent more than five years in Australia. There is nothing to suggest that it did not have regard to that fact in considering whether to exercise its discretion to cancel the applicant’s visa (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641).
In the circumstances, the Tribunal considered the prescribed circumstance in reg.2.41(e) of the Regulations and the submissions made by the applicant in relation to that prescribed circumstance.
Accordingly, Ground 1 is not made out.
Ground 2
In support of Ground 2, Mr Dobbie submitted that the Tribunal had failed to comply with s.359AA of the Act in respect of certain information that enlivened the obligations of s.359A of the Act, thereby breaching s.359A and s.359AA of the Act. I understood that the applicant did not submit that there was information other than that information which the Tribunal purported to give to the applicant in compliance with s.359AA of the Act.
Section 359AA of the Act is as follows:
“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.”
In Ground 2(i)(a), Mr Dobbie submitted that the Tribunal gave information to the applicant that would be the reason, or part of the reason, for affirming the decision under review. In particular, the Tribunal referred to an incorrect document as the source of the information, and that in doing so failed to comply with s.359A and s.359AA of the Act.
Relevantly, in giving the information to the applicant at the hearing, the Tribunal stated that one of the employers, Ice Pro Café, was listed in an agreed summary of material facts in County Court proceedings relating to CA. CA had provided a statement in which he gave the name of Ice Pro Café as an employer as having been falsely nominated as having provided 900 hours or more work experience in a nominated trade. In the circumstances, the information was contained in CA’s statement rather than the agreed summary of material facts.
However, I do not accept that the source of that information formed any part of the information required to be given to the applicant by the Tribunal, because it was information that would be the reason or part of the reasons for affirming the decision under review. The critical information was that the Tribunal had information before it that the applicant’s alleged employer, Ice Pro Café, was one of the employers that had been identified as being falsely nominated in documents given by the applicant to the Tribunal attesting that the applicant had completed 900 hours or more of work experience in a nominated trade.
That information was given to the applicant in accordance with s.359AA of the Act. I do accept that it may be that in particular circumstances, the source of material may have formed part of such information (see SZNKO v Minister for Immigration and Citizenship and Another (2010) FCR 505 at 512 per Flick J). However, I do not accept the applicant’s submission that the source of that information formed any part of the reason why the Tribunal may affirm the decision under review.
Accordingly Ground 2(i)(a) is not made out.
In Ground 2(i)(b), Mr Dobbie submitted that the Tribunal had failed to explain to the applicant the difference between ‘commenting’ and ‘responding’ to information given to the applicant by the Tribunal, being information that may form part of the reason for the Tribunal affirming the decision under review.
Mr Dobbie read the affidavit of Ms Rosario Xiella Devine, affirmed 23 July 2012, annexing a transcript of the Tribunal hearing. In relation to information that the Tribunal put to the applicant in purported compliance with s.359AA of the Act, relevantly the Tribunal said as follows:
“I’ll explain the information relevant to your case, and I’ll give you an opportunity to respond to or comment on the information. You may seek additional time to comment or respond, but I am going to put all of this to you. It’s information which you’re already familiar with, I’m just putting it to you in a formal setting and then you can respond here or ask for additional time to respond. Alright…
Would you like to comment or respond to that information?
Applicant: No comments.”
Mr Dobbie submitted that the Tribunal did not explain to the applicant what an opportunity to respond entailed and that a response could be in writing, or that he could have been offered an adjournment to make his own enquiries in relation to the information in order to provide a meaningful response to the adverse information.
In support of that proposition, Mr Dobbie referred the Court to Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd and Another (2011) 194 FCR 11 at 18 where Jagot J stated as follows:
“Nothing in the context of or purpose underlying the relevant provisions indicates that the word ‘respond’ should be given other that its ordinary and natural meaning of ‘to answer’ or ‘to reply’. As Saba Bros submitted, the option of responding to (as opposed to commenting on) information under s 359A was inserted into the Migration Act by the Migration Amendment (Review Provisions) Act 2007 (Cth). If, as the Minister contended, a ‘response’ requires an applicant expressly to state a position in relation to the information, the distinction between comment and response introduced by Parliament in 2007 would be rendered redundant.”
However, nothing in the authorities relied on by the applicant supports the proposition that the Tribunal has to explain to an applicant the meaning of “comment” or “respond” and any difference thereto.
It is plain from the transcript that the Tribunal told the applicant that he had an opportunity to comment or respond on the information, and that he may seek additional time to comment or respond. The issue of whether the applicant should be granted an adjournment did not arise because the applicant did not seek additional time to comment or respond. The applicant’s response to the Tribunal’s question, “would you like to comment or respond to that information?”, was “No comments”. That answer was clear and unequivocal and responsive to the Tribunal’s question. In no way could the applicant’s answer be construed as suggesting that the applicant had anything further to say, or that he wished for additional time to comment or respond. The applicant’s response to the Tribunal’s question was that he had “No comments” and by that response clearly indicated that he had no comment to make on the information given to him by the Tribunal.
In the circumstances there was no error on the part of the Tribunal in failing to explain to the applicant the difference between a comment and a response and that a response could be in writing and may be different to a comment.
Accordingly, Ground 2(i)(b) is not made out.
Ground 2(i)(c) does no more than assert that the adverse information referred to in Grounds 2(i)(a) and (b) was not given to the applicant in accordance with s.359A or s.359AA of the Act. Because neither of Ground 2(i)(a) or (b) is made out, Ground 2(i)(c) must fail.
Ground 2(ii) was withdrawn at the hearing.
Ground 2(iii) was withdrawn at the hearing.
Ground 2(iv) appears to raise a similar complaint to that in Ground 2(i)(a) above, in that the Tribunal referred to the agreed summary of material facts in the Country Court as being the document that listed Ice Pro Café as having been falsely nominated as having provided 900 hours or more work experience to the applicant in his nominated trade. As stated above, in fact that information was contained in a different document, being a statement from CA, rather than as part of an agreed summary of material facts filed in the County Court.
Relevantly, the Tribunal stated as follows:
“Various employers were falsely nominated within the documents has having provided 900 hours or more of work experience in the nominated trade. One of the employers listed in the Agreed Summary of Material Facts in the County Court proceedings relating to CA as having been falsely nominated in the documents as having provided 900 hours or more work experience in the nominated trade was Ice Pro Café and the false documents issued in that employer’s name were work references.”
I accept the written submission of counsel for the first respondent that the s.359A information which the Tribunal considered would be the reason or part of the reason for the Tribunal affirming the decision under review was that CA had falsely nominated various employers in documents as having provided 900 hours of work experience and the fact that one of those employers had been identified as Ice Pro Café, the applicant’s nominated employer. That information was put to the applicant by the Tribunal and, as stated above, the applicant was invited to comment or respond on that information in accordance with s.359AA of the Act.
Accordingly, Ground 2 (iv) is not made out.
Ground 2(v) appears to assert that CA’s statement should have been given to the applicant in accordance with s.359A or s.359AA of the Act and that it was a jurisdictional error on the part of the Tribunal for it not to do so.
However, the Tribunal’s decision record and the relevant part of the transcript make clear that the Tribunal told the applicant that CA had made a statement to the Australian Federal Police confessing to having manufactured hundreds of false documents which were subsequently lodged by international students with Trades Recognition Australia in support of skill assessment application, and for which he had been paid.
The Tribunal told the applicant that various employers were falsely nominated in the documents as having provided 900 hours or more work experience in the nominated trade. Up to that point, that information is consistent with CA’s statement.
The further information given by the Tribunal is that Ice Pro Café was listed as one of those employers in the agreed summary of material facts in the County Court. As stated above, the relevant information was the identification of Ice Pro Café as one of the employers that was falsely nominated in the documents as having provided 900 hours or more work experience in a nominated trade. As stated above, the source of the material of that information was not relevant.
The other information referred to above in CA’s statement as summarised by the Tribunal was the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. That information was given to the applicant by the Tribunal in accordance with s.359AA of the Act.
Accordingly Ground 2(v) is not made out.
Ground 3 was withdrawn.
Ground 4 was not pressed.
In the circumstances, a fair reading of the Tribunal’s decision makes clear that the Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 4 March 2013
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