Sandhu v Minister for Immigration & Anor
[2013] FCCA 491
•26 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDHU v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 491 |
| Catchwords: PRACTICE AND PROCEDURE – Refusal of leave to rely upon an additional ground sought to be raised after the trial of the matter. |
| Legislation: Migration Amendment Regulations 2011 (No.1) (Cth) |
| Minister for Immigration v SZLFX (2009) 238 CLR 507 VYAS v Minister for Immigration (2012) 263 FLR 131; [2012] FMCA 92 |
| Applicant: | RAMINDER SINGH SANDHU |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 114 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 11 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 26 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Afshar |
| Solicitors for the Applicant: | Christopher Levingston & Associates |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application for leave to rely upon Ground 3 in the further amended application filed on 19 June 2013 is refused.
The application is otherwise dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 114 of 2013
| RAMINDER SINGH SANDHU |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Migration Review Tribunal (Tribunal). The decision was made on 2 January 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant (Mr Sandhu) a Skilled (Residence) (Class VB) visa.
There were two visa applicants before the Tribunal. Only the first visa applicant is an applicant in these proceedings. In this judgment I have found that the Tribunal did not fall into jurisdictional error in the manner claimed by Mr Sandhu.
The following statement of background facts is derived from the submissions of the parties.
Mr Sandhu is a national of India. On 24 May 2009, he applied for a Skilled (Residence) (Class VB) visa. There are three subclasses of that visa[1]. Mr Sandhu sought to satisfy the criteria for the subclass 886 visa; he listed “pastry cook” as his occupation[2] and provided a copy of a successful skills assessment for that occupation from Trades Recognition Australia (TRA)[3].
[1] see clause 1136(8) of Schedule 1 of the Migration Regulations 1994 (Cth) (Regulations)
[2] court book (CB) 14
[3] CB 37
Mr Sandhu applied to TRA on three occasions. His application was rejected twice before it was accepted on 12 February 2009[4]. In his application to TRA, Mr Sandhu claimed that he had completed 900 hours of work experience as a pastry cook at a business called “Axilleon Continental Cakes Biscuits Pastries” (Axilleon Cakes). between 24 February 2007 and 3 March 2008.
[4] CB, 2; see CB 273; see also CB 291 to 300
TRA’s assessment was based in part on Mr Sandhu having completed 900 hours of work experience. Mr Sandhu submitted two reference documents from Ms Tina Galanos, the owner of Axilleon Cakes[5].
[5] CB 40, 42
In his visa application, Mr Sandhu nominated his occupation as “pastry cook”[6] and provided to the Department a copy of a skills assessment from TRA dated 12 February 2009 together with two reference letters from Tina Galanos.
[6] CB, 2.
On or about 23 July 2010, the Minister’s Department wrote to Mr Sandhu inviting him to comment on the results of the Department’s investigations, based on which the Department alleged that the work experience letters were obtained fraudulently[7].
[7] CB, 18
Mr Sandhu and his brother responded to the invitation, and confirmed that the documents provided to the TRA and to the Department were genuine and that Mr Sandhu had completed the requisite work experience at Axilleon Cakes[8].
[8] CB, 123 to 140
By letter dated 8 September 2010, a delegate of the Minister notified Mr Sandhu of the refusal of his visa application[9]. In the decision record, the delegate noted that one of the criteria in Part 886 of Schedule 2 to the Regulations was clause 886.224, which required that no evidence had become available since the time of application as to the information given or used to meet specified visa criteria being “false or misleading in a material particular”. The delegate concluded that there was evidence of that nature, namely the discovery, as part of a departmental investigation, of over 200 fraudulent work references on Axilleon Cakes letterhead, showing the name of the owner of the business. The references were in the possession of an “intermediary” known for providing fraudulent work references[10].
[9] CB 142
[10] CB 146
The delegate also referred to information from the intermediary to the following effect[11]:
a)the owner of Axilleon Cakes was paid $300 per work reference, on the basis that the owner would confirm work references as genuine if contacted by government departments;
b)the work references were provided to applicants without them having worked at Axilleon Cakes;
c)some students may have attended Axilleon Cakes, but only to familiarise themselves with the business set-up and the premises.
[11] CB 146
The delegate had provided Mr Sandhu with an opportunity to comment on this information pursuant to s.57 of the Migration Act 1958 (Cth) (Migration Act), but was not satisfied that the information he provided in response addressed the delegate’s concerns[12].
[12] CB 147
On 28 September 2010, Mr Sandhu applied to the Tribunal for review of the delegate’s decision[13]. Mr Sandhu provided a statutory declaration with the review application in which he took issue with the delegate’s finding and maintained that he had performed 900 hours of work experience at Axilleon Cakes[14].
[13] CB 216
[14] CB 223
On 2 April 2011, clause 886.224 of Schedule 2 of the Regulations was repealed and effectively replaced by an amendment to clause 886.225, which required Mr Sandhu to meet public interest criteria (PIC) 4020 in Schedule 4 of the Regulations[15]. PIC 4020(1), which is set out at [11] of the Tribunal’s decision[16], provides:
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.
[15] Migration Amendment Regulations 2011 (No 1) (Cth)
[16] CB 346
Subclause (5) defines “information that is false or misleading in a material particular” to mean information that is false or misleading at the time it is given and relevant to any of the criteria the Minister may consider when making a decision on an application. The term “bogus document” is defined in s.97 of the Migration Act, to mean, relevantly for present purposes, a document that the Minister reasonably suspects is a document that “was obtained because of a false or misleading statement, whether or not made knowingly”[17].
[17] Section 97(c)
By letter dated 22 August 2012, the Tribunal invited Mr Sandhu to attend a hearing before it on 21 September 2012[18]. The hearing proceeded on that date. At the request of Mr Sandhu, the Tribunal summoned the owner of Axilleon Cakes, Ms Galanos, to attend the hearing to give evidence. In addition to hearing from Mr Sandhu and Ms Galanos, Mr Sandhu’s brother and sister in law also gave evidence.
[18] CB 247
According to its summary of what occurred at the hearing, the Tribunal raised with Mr Sandhu orally information which it considered would be the reason or part of the reason for affirming the decision under review[19]. That information, which the Tribunal had obtained from the Department and some of which is the subject of a suppression order in the County Court of Victoria[20], indicated that Mr Sandhu’s name appeared on work references in the possession of a person who had pleaded guilty to forgery charges in relation to those documents. The documents were identical in format and content to the undated reference he had supplied to TRA[21]. Mr Sandhu chose to respond orally to the information the Tribunal put to him[22].
[19] at [76], CB 356
[20] CB 212, 307-309
[21] at [37], CB 352
[22] at [77], CB 356
By letter dated 16 October 2012, the Tribunal wrote to Mr Sandhu inviting him to comment on further information that it considered would be the reason or part of the reason for affirming the decision under review, namely the responses which Ms Galanos had given to questions which the Tribunal asked of her in the course of the hearing[23]. Mr Sandhu’s representative responded to the invitation by letter dated 12 November 2012[24].
[23] CB 336
[24] CB 338
On 2 January 2013 the Tribunal made its decision to affirm the decision of the Minister’s delegate[25]; it notified Mr Sandhu of this decision by letter dated 3 January 2013[26].
[25] CB 344
[26] CB 342
As the Tribunal stated in its decision record, the issue was whether Mr Sandhu satisfied the requirements of PIC 4020[27]. The Tribunal had earlier referred[28] to the decision at first instance in Talukder v Minister for Immigration & Anor[29] and on appeal in Talukder v Minister for Immigration[30]. It subsequently reiterated the necessity of assessing whether there was evidence before it that was sufficiently probative of the matters identified in PIC 4020[31].
[27] at [101], CB 360
[28] at [17], CB 347
[29] (2009) 108 ALD 583; [2009] FMCA 223
[30] (2009) 111 ALD 405; [2009] FCA 916
[31] at [102], CB 361
As with the delegate, the information that was of concern to the Tribunal was the undated work reference from Axilleon Cakes that Mr Sandhu submitted to the Department and the Tribunal, which said he had worked as a pastry cook from 24 February 2007 to 3 March 2008[32]. The Tribunal found that Mr Sandhu had provided the reference to TRA for the purposes of obtaining a positive skills assessment, which made the skills assessment a bogus document within the meaning of s.97. That was because the Tribunal reasonably suspected that it was obtained because of a false or misleading statement to TRA that Mr Sandhu had completed over 900 hours of directly related work experience.
[32] at [103], CB 361
In reaching that conclusion, the Tribunal referred to the information in the delegate’s decision, and the further information the Tribunal had received about the discovery of fraudulent work references on Axilleon Cakes letterhead, the fact that a person had been charged and pleaded guilty in relation to his involvement in the provision of fraudulent work references, and the fact that among the references in his possession was an identical reference to the one Mr Sandhu had provided to TRA[33]. In the face of this material, the Tribunal was not satisfied that Mr Sandhu had provided material of countervailing weight in support of his work experience; the Tribunal expected there would be some supporting material, for example statements from co-workers, even if there were no payslips because the work was voluntary[34].
[33] at [105], CB 361
[34] at [106], CB 361-362
Although Ms Galanos had, at the hearing, refused to verify Mr Sandhu’s work experience, the Tribunal drew no adverse inference from her evidence, accepting the submission of Mr Sandhu’s representative that she may have been advised by her lawyer to say very little because of ongoing matters in different jurisdictions[35]. In so far as Ms Galanos acknowledged that she knew Mr Sandhu, the Tribunal was prepared to accept that Mr Sandhu may have performed a small amount of work at the business, but it did not accept that he had worked over 900 hours as he claimed[36].
[35] at [107], CB 362
[36] at [108], CB 362
The Tribunal concluded that there was evidence before it that Mr Sandhu had given to the Minister and the Tribunal a bogus document in relation to his visa application[37]:
Having regard to the information relating to the Department’s investigation in this matter, as well as the Tribunal’s other concerns with the applicant’s other evidence as set out above, the Tribunal is not satisfied that the applicant undertook over 900 hours of volunteer work experience at Axilleon Cakes in the claimed period. The Tribunal reasonably suspects that the applicant’s positive skills assessment from TRA was obtained because of a false or misleading statement to TRA that the applicant had completed over 900 hours of directly related work experience. Consequently the Tribunal finds that the applicant’s positive skills assessment from TRA is a ‘bogus document’ within the meaning of s 97(c) of the Act.
[37] at [109], CB 362
The judicial review application
These proceedings began with a show cause application filed on 22 January 2013. At the trial of this matter on 11 June 2013, I received an amended application filed in court. That amended application (like the original application) contained only one ground asserting misconstruction and misapplication of PIC 4020. During the course of argument at trial, it became apparent that counsel for Mr Sandhu wished to further refine his arguments and I gave leave for a further amended application to be filed post hearing. A further amended application was filed on 19 June 2013. That contains three grounds:
1. The second respondent misconstrued and misapplied the Public Interest Criteria 4020 in Schedule 4 to the Migration Regulations 1994 (PIC 4020) in finding that the applicant did not satisfy the same (Finding).
Particulars
a. The Finding was based information relating to an investigation undertaken by the Department of Immigration and Citizenship and the second respondent’s views concerning the evidence the applicant gave to the second respondent.
b. The information and the views expressed by the second respondent referred to in (A) above did not constitute “evidence” within the terms of PIC 4020(1).
2. The second respondent misconstrued PIC 4020 when it found there was evidence that the applicant had given a bogus document as part of his visa application.
Particulars
a. The second respondent held that there was “reasonable suspicion” that the applicant’s work reference was obtained because of a false or misleading statement by the applicant to Trades Recognition Australia.
b. The materials before the second respondent did not constitute a proper basis for a “reasonable suspicion”.
c. In the alternative, it was not open to the second respondent to find, based on the materials before it, that there was a “reasonable suspicion” that the applicant had obtained his positive skills assessment because of a false or misleading statement to Trades Recognition Australia.
3. The second respondent erred in its exercise of jurisdiction by denying the applicants procedural fairness.
Particulars
a. The second respondent was required to give the applicant clear particulars of any information that the second respondent considered would have been the reason, or part of the reason, for the decision to affirm the delegate’s decision.
b. The second respondent was in possession of information that [C.A.] had given to the County Court of Victoria an undertaking to give evidence in any future legal proceedings.
c. The second respondent failed to give the applicants clear particulars of his information.
d. The applicant was deprived of an opportunity to summons [C.A.] to give evidence before the second respondent.
The third ground was not encompassed in the leave I granted on 11 June 2013 and Mr Sandhu seeks further leave to rely upon that ground. The granting of that leave is opposed by the Minister.
I have before me as evidence:
a)the court book filed on 13 March 2013;
b)the affidavit of Christopher Hugh Levingston made on 21 January 2013, to which is annexed a copy of the Tribunal decision record dated 2 January 2013 and a copy of a transcript of the hearing conducted by the Tribunal on 21 September 2012; and
c)a non publication order made by her Honour Judge Cannon of the County Court of Victoria in Melbourne on 30 November 2012 between the Commonwealth Director of Public Prosecutions and a defendant identified as “C.A.”[38].
[38] Exhibit R1
Both parties provided extensive written submissions and also made oral submissions.
Consideration
Ground 1
Mr Sandhu claims that the Tribunal misconstrued and misapplied the public interest criterion known as PIC 4020 as set out in Schedule 4 to the Regulations, in finding that he did not satisfy that criterion. Mr Sandhu contends that the Tribunal made its decision based on “information”, “concerns” and “doubts”, which did not constitute “evidence” as required by PIC 4020(1). Mr Sandhu contends that it was not open to the Tribunal, on the material before it, to find that he had obtained his positive skills assessment from TRA based on a false or misleading statement to TRA.
PIC 4020 was introduced by the Migration Amendment Regulations 2011 (No.1) (SLI No 13 of 2011), which came into force on 2 April 2011. Mr Sandhu was required to satisfy PIC 4020 as at the time of the decision concerning the visa application (rule 886.225(a)). PIC 4020 states:
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.
A “bogus” document is defined in s.97 of the Migration Act as follows.
"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.
In effect, PIC 4020 required Mr Sandhu to demonstrate that there was no “evidence” that either a “bogus document” or “information that is false or misleading in a material particular” was provided to any of the entities or persons set out in PIC 4020(1), relevantly the Tribunal, TRA or the Department, as part of the visa application. As part of this exercise, the Tribunal was required to determine whether the visa criteria were met and that it could be “reasonably” suspected that Mr Sandhu’s TRA skills assessment was obtained based on a false or misleading statement. Mr Sandhu submits that such suspicion could be “reasonably” formed only if it had a proper basis, that is, if it were based on “evidence” as that term is understood in the context of PIC 4020. These constituted the Tribunal’s tasks. Mr Sandhu submits that the Tribunal erred in performing these tasks and, thus, fell into jurisdictional error.
There is no doubt that a determination by a decision maker that certain statutory criteria are met is reviewable by courts, especially in circumstances where there is a question as to whether or not such a determination had been reached was reasonable upon the material before the decision maker[39]. In those circumstances, courts are required to assess the nature of the materials before the decision-maker to determine whether the determination was open based on those materials. Such an assessment of the materials is within the ambit of judicial review although care must be taken not to stray into impermissible merits review.
[39] NAAV v Minister for Immigration [2002] FCAFC 228, at [25]-[27]
As to the requirement of “evidence”, Mr Sandhu relies upon my decision in Talukder v Minister for Immigration & Anor, in particular at [17]-[24]. That decision was affirmed on appeal[40].
[40]Talukder v Minister for Immigration (2009) 111 ALD 405; [2009] FCA 916
Mr Sandhu contends that the information relied upon by the Tribunal did not constitute “evidence” and therefore could not support a “reasonable” suspicion. However, on that issue I prefer the submissions of the Minister, while adhering to the general principles I expressed in Talukder.
Although Mr Sandhu relies on the reasoning of this Court, and the Federal Court, in the Talukder decisions, the bases on which he impugns the information that the Tribunal relied upon[41]:
a)assume a standard of proof which was disavowed in this Court[42];
b)import notions of knowledge or intent on the part of Mr Sandhu in circumstances where there is no such requirement[43], and
c)go beyond the scope of judicial review on the question of whether probative material was available, to engage with the merits of the Tribunal’s factual finding that the information was sufficiently probative. This is particularly apparent from the submissions Mr Sandhu makes as to the weight of the information[44].
[41] at [38]-[40] of the submissions as amended on 11 June 2013
[42] at [38(a), (b)], [40(b)]
[43] at [38(a)]; see VYAS v Minister for Immigration (2012) 263 FLR 131; [2012] FMCA 92 at [68])
[44] at [38(c)-(d)] and [40(c)]
As noted above, a “bogus document” is one that the Minister “reasonably suspects”, relevantly, was “obtained because of a false or misleading statement whether or not made knowingly”. Applying the reasoning in Talukder, the evidence had to be sufficiently probative of the applicant having given a document of that character to the Minister and/or the Tribunal.
The document of concern to the Tribunal was TRA’s positive skills assessment; it reasonably suspected that that document was obtained because of a false or misleading statement, namely the reference from Axilleon Cakes. The information the Tribunal relied upon in this respect was information that the delegate had obtained from the Department about the discovery of some 200 references on Axilleon Cakes letterhead in the possession of an intermediary who admitted involvement in the provision of fraudulent references, and the further information the Tribunal received which was specific to the reference that Mr Sandhu had submitted.
In light of the source of the information (a person having personal knowledge of fraudulent activity) and its content (extending to a plea of guilty on the part of the person involved in producing fraudulent references and his having in his possession a reference for Mr Sandhu which was identical to the one he had submitted to TRA) it was in my view open to the Tribunal to consider the information was sufficiently probative of the skills assessment being a document in respect of which it had the reasonable suspicion as to the matters in s.97(c) of the Migration Act.
The Tribunal also considered what Mr Sandhu had advanced to the contrary in support of his having worked 900 hours, consistently with what the reference said. Its taking that course demonstrates recognition on the part of the Tribunal of the need to evaluate the material it had received and consider what weight it should be given. That recognition is also apparent in its decision not to rely on the evidence of Ms Galanos, after considering its content and Mr Sandhu’s response to the s .359A letter the Tribunal sent in respect of it[45].
[45] at [107]
In circumstances where the Tribunal referred, more than once, to the guidance on PIC 4020 provided in Talukder, both at first instance and on appeal, and given the Tribunal’s approach referred to above, I reject Mr Sandhu’s first contention that the Tribunal misunderstood its task or applied the wrong test.
Ground 2
I accept the Minister’s submissions relating to this ground. In the amended written submissions served on 10 June 2013, and at the hearing, Mr Sandhu contended that it was not open to the Tribunal to conclude that there was material amounting to “evidence” for the purpose of PIC 4020, in circumstances where there was no basis on which the Tribunal could have formed the “reasonable suspicion” required for the definition of “bogus document”.
Mr Sandhu submits that a suspicion of that character could only be “reasonably” formed if “it were based on evidence as that term is understood in the context of PIC 4020”[46]. That submission, and the further submission that the requirement for “evidence” in PIC 4020 affects the nature and quality of the material necessary for the formation of the suspicion in s.97[47], probably takes my reasoning in Talukder too far. In contrast with PIC 4020(1), s.97 does not require the requisite suspicion to be formed on the basis of information of any particular quality, noting that s.97 has a function in the scheme of the Migration Act which is independent of the criterion PIC 4020(1)[48].
[46] See the Amended Written Submissions at [18], see also [31]
[47] At [31]-[32]
[48] See s.103
When the definition in s.97 is read in conjunction with PIC 4020(1), the criterion requires that there is no evidence before the Minister (or Tribunal) that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth a document that the Minister reasonably suspects is a document that was obtained because of a false or misleading statement.
The Tribunal had information before it which, viewed as a whole, indicated that the employer who gave the applicant the reference attesting to his having performed 900 hours of employment had been involved in a scheme whereby the employer received payments for providing false work references and for confirming work references as genuine if contacted by government departments. It also had information that specifically linked the applicant to that scheme, by reason of identical references to the one he submitted to TRA being found in the possession of a person identified as C.A. in the Victorian Country Court proceedings, who had pleaded guilty to forgery charged in relation to those same documents. It was open to the Tribunal to reasonably suspect, on the basis of that information, that the skills assessment had been obtained by reason of the false or misleading statement[49]. It was also open to the Tribunal to be satisfied that the information was sufficiently probative of the skills assessment meeting the definition of “bogus document” so as to constitute evidence.
[49] See Minister for Immigration v SZMDS (2010) 240 CLR 611 at [131] per Crennan and Bell JJ
Mr Sandhu’s central complaint on this ground relates, as does the first ground, to the sufficiency of the materials on which the Tribunal relied as evidence. The asserted jurisdictional error is not made out. I reject Ground 2.
Proposed Ground 3
During the course of argument on 11 June 2013, I discussed with counsel for the parties [122] of the Tribunal’s decision:
Non-publication Order
The Tribunal further notes that some information contained in the decision record is the subject of a non-publication Order made by Her Honour Judge Cannon of the County Court of Victoria on 30 November 2012. In accordance with paragraph 3 of the Order, a copy of the Order is attached to the decision record. If any information is published in breach of the order, the person committing the breach could be prosecuted for contempt of court for an offence against s.80(4) of the County Court Act 1958.[50]
[50] A copy of the non publication order made by the County Court is annexed to this judgment
The order was not attached to the copy of the Tribunal’s decision contained in the court book (although reproduced elsewhere in the court book) but was included with the copy of the Tribunal’s decision annexed to the affidavit of Mr Levingston. I infer from that that the order was attached to the copy of the Tribunal decision that was notified to Mr Sandhu. I received a copy of the non publication order as an exhibit[51]. I enquired of counsel whether there was any evidence of Mr Sandhu being aware of that order prior to the Tribunal decision. There was no such evidence. My concern was that if Mr Sandhu had been aware that the person identified as C.A. had given an undertaking to provide evidence in migration proceedings, Mr Sandhu may have wanted to take advantage of the opportunity to obtain evidence from him. It also occurred to me that if the Tribunal had chosen to obtain evidence from C.A., it might have been able to answer definitively the question of whether Mr Sandhu had been involved in the fraud apparently perpetrated in relation to work references from Axilleon Cakes, rather than being left to draw inferences from the available information.
[51] Exhibit R1
If, hypothetically, the Tribunal had intentionally concealed the availability of C.A. from Mr Sandhu, there may have been an issue whether the Tribunal’s decision was made in good faith. Secondly, as it was open to the Tribunal to obtain evidence from C.A. which might have been determinative of the visa application, there might have been a question whether the Tribunal erred in not exercising its discretion to obtain that evidence.
The proposed additional ground does not raise either of those propositions. It raises the proposition that the Tribunal erred in not disclosing the non publication order to Mr Sandhu pursuant to s.359A of the Migration Act. I am unwilling to grant the leave sought to rely upon the proposed ground because, as appears from the affidavit of Mr Levingston, Mr Sandhu can be taken to have been aware of the non publication order from the time he received the Tribunal decision and he has had ample opportunity to raise the issue previously. Secondly, even if I was minded to grant leave, I would reject the proposed ground as misconceived, consistently with submissions put on behalf of the Minister.
The application of s.359A of the Migration Act “depends upon [the Tribunal’s] “consideration”, that is, its opinion, that certain information would be the reason or part of the reason for affirming the decision under review”[52]. There is nothing in the reasons of the Tribunal on which it would be open to this Court to find that the Tribunal had formed an opinion that the content of the undertaking referred to in the suppression order (which, on any reasonable reading, relates only to future legal proceedings) would be the reason or part of the reason for affirming the decision under review, such as to trigger the operation of s.359A.
[52] Minister for Immigration v SZLFX (2009) 238 CLR 507 at [24] per French CJ, Heydon, Crennan, Kiefel and Bell JJ
In his written submissions in support of the amendment, Mr Sandhu contends[53] that “any evidence that the Tribunal would have received from [C.A.] concerning his alleged association with the applicant would certainly have formed part of the reason for any decision by the Tribunal” (emphasis added). The emphasised words, which are directed at a merely theoretical possibility, constitute an acknowledgement on Mr Sandhu’s part that the information on which he now seeks to rely did not form part of the Tribunal’s reasons for affirming the decision of the delegate. Although Mr Sandhu cites SZLFX in his written submissions[54], the submissions on this ground do not accommodate the reasoning in that case.
[53] At [14]
[54] Footnote 1
Mr Sandhu is correct that the further information the Tribunal received from the Department as to the inference of an association between Mr Sandhu and C.A. was of significance to the Tribunal. Consistently with its consideration of that information, and with its obligation in s.359A, the Tribunal put that information to Mr Sandhu orally, in accordance with s.359AA of the Migration Act. That disclosure included the disclosure of the identity of C.A.[55]. The Tribunal had no such obligation in respect of the information on which Mr Sandhu relies in proposed Ground 3.
[55] Tribunal hearing transcript, page 37
Conclusion
Mr Sandhu has failed to make out a case of jurisdictional error by the Tribunal. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 July 2013
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