Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] FCA 842
•20 August 2013
FEDERAL COURT OF AUSTRALIA
Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 842
Citation: Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 842 Appeal from: Sandhu v Minister for Immigration & Anor [2013] FMCA 140 Parties: GURPREET SINGH SANDHU v MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL File number: NSD 521 of 2013 Judge: COWDROY J Date of judgment: 20 August 2013 Catchwords: MIGRATION – appeal against decision to cancel skilled–independent overseas student visa – cancellation due to visa being issued based on fraudulent information –whether the Migration Review Tribunal was obliged under ss 359AA and 359A of the Migration Act 1958 (Cth) to provide, and refer to correctly, the source of information relied upon in affirming the cancellation decision Legislation: Migration Act 1958 (Cth) ss 97, 101(b), 103, 107, 109, 359AA, 359A, 424A Cases cited: SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405
SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505Date of hearing: 13 May 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Solicitor for the Appellant: Mr N Dobbie of Dobbie and Devine Immigration Lawyers Counsel for the First Respondent: Ms A Mitchelmore Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 521 of 2013
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: GURPREET SINGH SANDHU
AppellantAND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
20 AUGUST 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the costs of the First Respondent of the appeal.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 521 of 2013
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: GURPREET SINGH SANDHU
AppellantAND: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS AND CITIZENSHIP
First RespondentMIGRATION REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE:
20 AUGUST 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from the decision of Federal Magistrate Emmett (as she then was) delivered on 4 March 2013 dismissing an application for review of the decision made by the second respondent (‘the Tribunal’) on 22 May 2012 to affirm the cancellation of the appellant’s Subclass 880 (Skilled–Independent Overseas Student) visa (‘the visa’) by a delegate of the first respondent (‘the Minister’).
It will become apparent that the cancellation of the appellant’s visa by a delegate of the Minister followed an investigation by the Department of Immigration (‘the Department’) which revealed fraudulent conduct by a migration agent (‘the migration agent’). The migration agent was found to have produced documents which falsely represented that numerous persons had satisfied certain work requirements for visas, when in fact such work was never performed. The migration agent in question cannot be named due to continuing criminal proceedings.
BACKGROUND
The appellant is a citizen of India. He arrived in Australia on 23 August 2005, having been issued with a student visa, and completed various qualifications related to hospitality and cooking between November 2005 and June 2007.
On 2 July 2007, the appellant applied to the Department for the visa. As was required, such application was supported by a letter from Trades Recognition Australia (‘TRA’) stating that the appellant’s skills assessment for the occupation of cook was successful. To receive a positive skills assessment from the TRA, the appellant had submitted a reference to the TRA that purported to be from the manager of a certain café (‘the manager of the café’). The reference relevantly stated that the appellant had undertaken over 900 hours of unpaid work experience at the café as an assistant cook.
A delegate of the Minister granted the appellant’s visa on 18 January 2008.
On 13 August 2010, a delegate of the Minister notified the appellant pursuant to s 107 of the Migration Act 1958 (Cth) (‘the Act’) that his visa may be cancelled due to non-compliance with ss 101(b) and 103 of the Act. Section 101(b) provides that ‘no incorrect answers are given or provided’ in may be given in visa applications, and s 103 states:
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.
Section 97 of the Act defines ‘bogus document’ to mean ‘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.
The notification stated that the reference purportedly from the manager of the café was a false or misleading document, on the basis that the Department was in receipt of a signed witness statement from the manager stating that the appellant had never been employed at the café. The positive TRA skills assessment was accordingly invalid, having been issued due to the false or misleading reference. A Department investigation revealed that the fraudulent reference on behalf of the appellant was part of a wider scheme perpetrated by the migration agent.
The decision to cancel the visa under s 109 of the Act was made on 29 October 2010. The appellant sought a review of that decision by the Migration Review Tribunal (‘the Tribunal’) and on 1 April 2011 the Tribunal affirmed the delegate’s decision. The appellant sought a review of that decision in the Federal Magistrates Court of Australia (now known as the Federal Circuit Court of Australia) and on 25 May 2011 that Court set aside the Tribunal’s decision by consent and remitted the matter to the Tribunal for reconsideration. In its decision handed down on 21 May 2012, a differently constituted Tribunal affirmed the decision of the delegate to cancel the appellant’s visa.
At the hearing the Tribunal had possession of the following documents:
1.An agreed summary of material facts which had been used in the County Court of Victoria, in its criminal jurisdiction, in a matter against the migration agent (‘the agreed summary of material facts’). Such summary contained details of the fraudulent references issued by the migration agent.
2.A list of employers which identified the names of the business at which the work experience was fraudulently claimed to have been served and also the document type which was issued in respect of that employment (‘the list of employers’); and
3.A statement of the migration agent obtained by the Australian Federal Police (‘the AFP’) which contained details of the fraudulent conduct (‘the AFP statement’).
TRIBUNAL HEARING
During the hearing before the Tribunal, a Tribunal member informed the appellant of a number of matters in purported accordance with s 359AA of the Act. Due to the continuing criminal proceedings against the migration agent, a suppression order was made by this Court on 13 May 2013 which prevents the publication of much of the relevant evidence. Accordingly the Court will refer to it obliquely, and where necessary by reference to the appeal book. The particular matter put to the appellant is set out in the appeal book at page 20. It commences ‘Now…’ and concludes with the word ‘provided’ on page 21.
In a statement given to the Department in January 2010, the manager of the café said:
(i)he only ever employed two people on a voluntary basis at the cafe: one worked at the business for one month and the other person for less than one month;
(ii)no person completed nine hundred hours of work experience at the café;
(iii)if any document held by any Commonwealth government agency stated otherwise, it was false.
The Tribunal member made an error with respect to the source of the list of employers. The nomination of the café was not in the agreed summary of material facts, but rather in the list of employers and the AFP statement.
The Tribunal found that there was overwhelming evidence that the appellant was involved in the fraudulent conduct perpetrated by the migration agent. Having taken into account the matters referred to in s 109 of the Act, it upheld the Minister’s decision to cancel the visa.
PROCEEDINGS BEFORE FEDERAL MAGISTRATES COURT
Numerous grounds of review were raised by the appellant before the Federal Magistrate. Relevantly to this appeal, the appellant submitted that the Tribunal failed to comply with ss 359AA and 359A of the Act by failing to provide clear particulars to the appellant. The appellant submitted that in putting information to him, the Tribunal member,:
(a)incorrectly stated that the café had been named in the agreed summary of material facts; and
(b)failed to provide him with the AFP statement or the list of employers.
In respect of the first ground, the Federal Magistrate found that in the circumstances of the case, it was the information itself rather than the source of such information that was relevant for the purposes of s 359AA of the Act. As such, the error was inconsequential. The Federal Magistrate accordingly rejected the first ground.
In respect of the second ground, the Federal Magistrate considered that, in the circumstances, all relevant information had been provided to the appellant for the purposes of s 359AA of the Act. Although not expressly stated, the rejection of the second ground by the Federal Magistrate leads to a necessary implication that her Honour deemed that the Tribunal was not required to furnish the appellant with a copy of the statement.
Given that the Federal Magistrate found that these grounds (and all other grounds not relevant to this appeal) did not show that the Tribunal had failed to comply with s 359AA, it also followed that the Tribunal had complied with s 359A.
APPEAL TO FEDERAL COURT OF AUSTRALIA
The appeal to this Court turns on the construction of ss 359AA and 359A of the Act. Section 359AA provides that, where an applicant is appearing before the Tribunal, 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’. Where the Tribunal does so, the Tribunal must, in accordance with s 359AA(b):
1.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
2.orally invite the applicant to comment on or respond to the information; and
3.advise the applicant that he or she may seek additional time to comment on or respond to the information; and
4.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.
Should the Tribunal elect not to provide clear particulars orally under s 359AA, then it must provide clear particulars in writing pursuant to s 359A. If clear particulars are provided orally under s 359AA, then the requirement to provide clear particulars in writing pursuant to s 359A does not arise.
The appellant’s Notice of Appeal, filed on 25 March 2013, relies upon the following two grounds:
1.The learned Federal Magistrate erred by finding that s 359A of the Act did not require the second respondent to give the appellant clear particulars of adverse information before it, namely a statement made by the migration agent, or that it had complied with s 359AA of the Act in relation to that adverse information, which was the reason or part of the reason for affirming the decision under review.
2.The learned Federal Magistrate erred by finding that s 359A of the Act did not require the second respondent to give the appellant clear particulars of adverse information before it, namely a list of employers and document types before it, or that it had complied with s 359AA of the Act in relation to that adverse information, which was the reason or part of the reason for affirming the decision under review.
The Court need only consider the issues relating to s 359A of the Act should the appellant prove that the Tribunal failed to act in accordance with s 359AA of the Act. To do so, the appellant must establish with respect to the first ground of appeal that the Tribunal failed to give only ‘clear particulars’ for the purposes of s 359AA of the Act by incorrectly referring to the source of the adverse information. That information was the assertion that the migration agent had provided fraudulent employment references purporting to be provided by the manager of the café. In relation to the second ground of appeal, the appellant must establish that the sources of that adverse information, being the AFP statement and the list of employers, should have been provided to the appellant in accordance with s 359AA. For the reasons that follow, the appellant has not satisfied either of the requirements.
The appellant relied on two decisions of this Court, being SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505 and SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405.
In SZNKO, the appellant was a Bangladeshi citizen who claimed to fear religious persecution in Bangladesh. The Court was concerned with the findings of the Tribunal that the appellant in those proceedings lacked credibility. It was put by the Tribunal member to the appellant that a letter upon which the appellant relied was identical to a letter used in other proceedings. The Tribunal member refused to accept that two different people in Bangladesh could write exactly the same letter in relation to membership of a political party, the BNP. The Tribunal member asked the appellant if he knew of any reason why another person’s letter would be identical to the one relied upon by the appellant, other than it claimed to have come from a different union council. Whilst the appellant claimed that his document was genuine, the letter upon which the Tribunal member relied was never produced.
The critical question in SZNKO was whether the failure of the Tribunal to provide to the appellant the information as to the source and date of the other letter constituted a failure to comply with s 424A of the Act. Section 424A is the same on terms as s 359A, but applies to the review of protection visa decisions. In considering this issue, Flick J said at [23]:
There may be circumstances in which the requirement to “give” information to which s 424A applies may not extend to a requirement to disclose the entirety of any document in which such “information” is contained. In those cases it may not matter for the purposes of making a decision affirming a refusal of a protection visa that the “information” in question is but part of a document or report touching other matters or containing diverse other matters. In those cases the disclosure of that specific part of a much lengthier document may be sufficient. But “information” for the purposes of s 424A cannot in all cases be clinically divorced from the context it which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case. In some cases it may be necessary to identify the “source” from which information has been obtained. Thus, in SZLIQ v Minister for Immigration and Citizenship [2008] FCA 1405 Buchanan J concluded that extracts from a published book and the source of that material should have been disclosed. Indeed, the extent of disclosure may not necessarily be confined to the disclosure of material which ensures that a particular part is not rendered misleading; the touchstone is that ss 424A and 424AA require the disclosure of so much as to ensure that the opportunity to “comment … or respond …” is meaningful. In some cases the disclosure of the “substance” of information may be sufficient (NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]); in other cases “clear particulars” may require more.
His Honour ultimately determined that withheld information should have been provided to the appellant under s 424A of the Act, finding at [27]:
A meaningful opportunity to “comment … or respond” in the present proceeding required the disclosure of information that was withheld. An explanation may have been forthcoming if the applicant had been told more about the other letter that the tribunal member had come across. The reservations of the tribunal member, especially given his other concerns as to the credibility of the now appellant, may not have been misplaced. No further “comment … or respon[se]” may in fact have been forthcoming. But the opportunity to “comment … or respond” is the very procedural safeguard which enables an applicant to at least have an opportunity to address those reservations. An opportunity to “comment … or respond” to the other letter is only a meaningful opportunity if there has been disclosure of such particulars as enables an applicant to put that other letter into context. Letters in the same terms, but dated years apart, may be more difficult for an applicant to explain (for example) than letters written relatively contemporaneously in much the same circumstances.
In SZLIQ, the appellant claimed to be a farmer in China who feared persecution following protests against local government authorities. Similarly to SZNKO, the issue before the Court was whether certain information was required to be provided to the appellant under s 424A. That information related to sweet potato farming. The appellant led evidence before the Tribunal that she planted sweet potato 2 inches apart, whereas the Tribunal was in possession of evidence that sweet potato should be planted 15 to 18 inches apart. The source of the latter evidence was an excerpt from a guide to growing vegetables. Buchanan J found that the excerpt should have been provided to the appellant, stating at [12] that:
[The excerpt] seems a very flimsy foundation upon which to pose questions, much less draw conclusions, about farming practices in what appear to have been small village plots in China. Assuming, for the moment, that s 424A(1)(a) applied, it does not appear to me that the information provided to the appellant in the letter of 17 July 2007 complied with it. Details of the source of the ‘evidence’ should have been given. The appellant should have had an opportunity to make some comment upon whether the source upon which the [Refugee Review Tribunal] relied was relevant to her claimed activities in China.
In the appeal now under consideration, the crux of the appellant’s argument is that the Tribunal’s failure to provide, or refer to correctly, the source of the information that was given to him under s 359AA meant that his opportunity to ‘comment on or respond to the information’ was not ‘meaningful’: see SZNKO at [23].
The appellant was told by the Tribunal member of the information relevant to his application and he was then provided with an opportunity to respond or to comment upon that information. That information is referred to at [11] above, and was undoubtedly ‘information’ within s 359AA. It provided precise details which were to be taken into consideration by the Tribunal as a reason or part of a reason for possible cancellation of the appellant’s visa. The information was drawn from four sources, namely the agreed summary of material facts, the list of employers, the AFP statement, and the statement of the manager of the café.
It is true that the Tribunal incorrectly referred to the agreed summary of material facts as being the source for the proposition that the café had been falsely nominated as having provided over 900 hours of work experience, and that the specific information that was given to the appellant from the statement was divorced from the context of the remainder of the statement. Unlike the facts in SZNKO and SZLIQ however, there was no issue as to the credibility or relevance of the sources of the information.
In these circumstances, the Court does not consider that these factors led to the opportunity for the appellant to comment on or respond to the information being not meaningful. This is because, as was found by the Federal Magistrate at [49] of her decision, the sources of the information did not form any part of the Tribunal’s decision; rather it was the substance of the information that was relevant. The mistake of the Tribunal in incorrectly referring to the source of the adverse information does not amount to legal error, and nor does the failure to provide the whole of either the AFP statement or the list of employers to the appellant.
For these reasons, the Court finds that there was no breach of s 359AA or s 359A of the Act by the Tribunal, and therefore that there is no error in decision of the Federal Magistrate. The appeal must be dismissed with costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 20 August 2013
6
3
1