Sapkota v Minister for Immigration

[2016] FCCA 2837

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAPKOTA & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2837

Catchwords:  
MIGRATION – Application for judicial review – bogus document – application for skilled visa – issue of whether the Tribunal complied with its obligations to provide an applicant with access to written material and particulars of information – whether Tribunal failed to consider relevant evidence – remitted to AAT for re-hearing.

Legislation:

Migration Act 1958 (Cth) ss.359A, 359AA, 362A

Migration Regulations 1994 (Cth) sch2

Cases cited:

Minister for Immigration and Border Protection v Dhioon [2014] FCAFC 157

Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152

First Applicant: INDIRA KANDEL SAPKOTA

Second Applicant: DAYA RAM KANDEL

Third Applicant: SAFAL KANDEL

Fourth Applicant: SHRISTI KANDEL

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 804 of 2015

Judgment of: Judge McGuire

Hearing date: 21 June 2016

Date of Last Submission: 21 June 2016

Delivered at: Melbourne

Delivered on: 9 November 2016

REPRESENTATION

Counsel for the Applicants: Ms Costello

Solicitors for the Applicants: Da Gama Pereira and Associates Pty Ltd

Counsel for the Respondents: Mr Wood

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the decision of the Migration Review Tribunal be quashed.

2. The application be remitted to the Administrative Appeals Tribunal for re-hearing.

3. The First Respondent pay the Applicant’s costs fixed and taxed at $7,985.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 804 of 2015

INDIRA KANDEL SAPKOTA

First Applicant

DAYA RAM KANDEL

Second Applicant

SAFAL KANDEL

Third Applicant

SHRISTI KANDEL

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for Judicial Review of a decision of the Migration Review Tribunal (as it then was) (“the Tribunal”) affirming a determination of the Ministers delegate not to grant the first applicant a Skilled Residence (Class VB) Visa (“the Visa”).

2. The matter was disposed of by the Tribunal on the basis of it not being satisfied that the applicant satisfied the criterion in clause 866.225 of schedule 2 of the Migration Regulations 1994 which import public interest criterion 4020 (PIC4020) relevantly providing that:

   (i)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…

3. The issue in respect of this applicant was whether a work reference provided by her in support of the Trades Regulation Australia (TRA) assessment evidencing the completion of 915 hours of work experience as a hairdresser contained false or misleading information (bogus document).

4. The Tribunal had information in respect of this applicant from a person who had pleaded guilty in the County Court of Victoria to providing false work references. A suppression order remains in force from the County Court and I will refer to this person simply as Mr X.
   The Tribunal found that Mr X held personal details, including work references for this applicant being almost identical to the one she had submitted to the TRA.

5. The applicant raises three grounds of review of the Tribunal's decision arguing that the Tribunal fell into jurisdictional error as follows:

   1)The Tribunal breached section 362A of the Migration Act 1958 (“the Act”) by failing to provide the applicant a copy of Mr X's statement to the AFP in connection with the criminal proceeding and an agreed statement of facts filed in the criminal proceeding;

   2)The Tribunal breached sections 359A or 359AA of the Act by failing to give “clear particulars” of information which the Tribunal considered would be the reason, or a part of the reason, for affirming the delegates decision;

   3)The tribunal failed to take into account critical evidence that was corroborative of the applicant’s claims being her evidence to the effect that she had performed the relevant work experience.

6. Grounds one and two allege denial of procedural fairness to the applicant by reason of failure to provide the applicant with two documents being the statement by Mr X to the AFP and an agreed statement of facts provided to the County Court on Mr X's plea of guilty and/or alternatively, failing to give the applicant “clear particulars of the information that the Tribunal considered as part of its reasoning in affirming the delegates decision.”

7. The transcript of the proceedings and the interaction between the member and the applicant/her representative are crucial to the argument before this court and, in particular, the obligations on the Tribunal. That transcript discloses between pages 22 – 28: (edited as to relevance)

   Member:Okay.  So have you heard of Mr X?  You ever meet him?

   Applicant:Who’s that? 

   Member:Mr X,…

   The applicant:   I don't know who he is.  I don't know.  I have no idea.

   Member:Okay.  I'm going to show you a copy of letters. one of these letters was found in the home of Mr X…

   Member:…and the other letter is the letter you gave to the TRA. 

   Applicant:Okay. 

   Member:These letters are almost identical.  This is the letter found in Mr X's home. 

   Member:This is the letter that you gave to the TRA, which you earlier identified in the hearing as the letter that you gave to the TRA.

   Applicant:Okay.

   Member:The letter from Mr X's home was seized under a search warrant as part of the criminal proceedings. 

   Applicant:I don't know about him anything, but I did mine where – myself (indistinct) so I'm not sure about him with that anyway.

   Member:Why do you think he would have a letter almost identical to the letter you say you wrote? 

   Member:The evidence which I am about to put to you, which the department has given to me, indicates that there was an arrangement between Mr K and Mr X, and that Mr X would either take money from students to provide false work references and that he had arrangements in place with people such as Mr K, and that he had an organised arrangement where he would produce false work reference letters and would pay Mr K money for Mr K to verify with that TRA and to lend his name and sign documents for the purposes of giving skills assessments.     

   Member:What I'm going to do now is actually provide you with some information regarding the criminal proceedings and what Mr X said in those criminal proceedings and what happened in that proceeding, and including that he has pleaded guilty that he has created this false work reference…

   Applicant:Oh, my God.

   Member:…One that is in your name and was found in his home. It was in fact an exhibit in the criminal proceedings. Under the migration law, I'm required to follow-up particular procedure. So I'm going to explain what this information is and then I am going to give you an opportunity to speak with your representative if you want before you respond. All right?

   Applicant:Okay.

   Member:It's quite detailed information.  Don't interrupt.

   Applicant:Yes.

   Member:If you have difficulty understanding me, please tell me and I'll slow down.

   Applicant:Okay.

   Member:Okay, so in a statement made by Mr X dated 21 April, 2011 to the Australian Federal police in relation to the criminal proceedings against him, he made the following statement:

   Member:The department has advised the Tribunal, and the exhibit list indicates, that the work reference in your name was found on the USB stick and was obtained under the search warrant from Mr X's home. The department has advised this work reference was Exhibit 547 in the criminal proceedings against Mr X.  I note that the work reference that you identified earlier today that you gave to the TRA is almost identical, save some small matters, to the one that was found at the home of Mr X on his USB stick.

   Member:The agreed statement of facts lodged in the criminal proceedings against Mr X states between November 2006 and 29 September, 2009, he created 777 false documents, including work reference letters, for the purpose of enabling international students to obtain positive skills assessments and visas under the General Skilled Migration program with a review to securing permanent residences in Australia. On 4 November 2011, Mr X pleaded guilty to the manufacture and sale of work references from Enigma Hair Studio and he admitted the documents were fraudulent in content and were created to assist clients to apply for permanent residence.

   Member:I'm putting this information to you because it raises doubts in my mind as to your credibility when you say that you worked at Enigma Hair Studio for 900 hours between the dates of 15 May, 2008 and 12 May, 2009.  It also leads me to question whether the statements in the work experience letter that you gave to the TRA regarding your hours of experience and period of work at Enigma Hair Studio are true or whether They are false and misleading statements that were used to obtain the TRA reference, such that the TRA skills assessment is a bogus document.

   Now, I've given you a very lengthy explanation as to the evidence that I have before me from the department.  Before you respond, I think you may wish to speak with your representative about that…

   Applicant:15 minutes.

   Member15 minutes?  Okay.  I’ll adjourn for 15 minutes.

   Member:Now, I've given you a lot of information and I would like you both to sort of comment on that information if you wouldn't mind, unless, Mr Mittal, there was something you wanted to start by saying, or are you happy for Ms Sapkota to respond first? 

   Mr Mittal:I was discussing with them and I don't know if they really – or if she really understood very clearly what was being said, and they mentioned that there was some major differences in the two letters.

   Member:I didn't say major.  I said minor.

   Mr Mittal:No, they said that there was major differences.  So they would like to have that letter sent to us and we will have a look at it, whatever you have, you know, read out from those statements, and we'll probably make a proper comment. That's what I do understand from these two.
   (my emphasis)

   Member:So is five days sufficient? 

   Mr Mittal:Yes if you could give us those things, please, five days…

   Member:If I can have those letters back and then I’ll mail them to you, or email the information.

   Mr Mittal:Yes please.

8. The Act itself deals comprehensively with issues of procedural fairness. Section 357A provides that “in applying this division, the Tribunal must act in a way that is fair and just.”

9. Section 359A of the Act states:

   1)Subject to subsections two and three, the tribunal must:

   a)give to the applicant, in the way that the applicant considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   c)invite the applicant to comment on or respond to it.

   2)The information and invitation must be given to the applicant:

   a)except where paragraph (b) applies – by one of the methods specified in section 379A; or

   b)if the applicant is in immigration detention – by method prescribed for the purposes of giving documents to such a person. 

   3)The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 359AA.

10. Section 359AA of the Act provides:

    1)If an applicant is appearing before the Tribunal because of an invitation under section 360:

    a)the Tribunal may orally give 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;

    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;  

    ii)     orally invite the applicant to comment on or respond to the information;

    iii)     advise the applicant that he or she may seek additional time to comment on or respond to the information;

    iv)     if the applicant seeks additional time to comment on or respond to the information – during the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information…

11. Section 362A of the Act provides:

    Section 362A entitles the applicant, to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review.

12. It is not controversial that the Tribunal sent a letter to the applicant post the hearing on 17 March 2015 and allowing the applicant until
    25 March to respond and that the Tribunal's letter contained two attachments being:

    a)the work reference in the name of the applicant found on Mr X’s USB stick;

    b)the work reference submitted to the TRA on behalf of the applicant.

13. The crux of the applicant’s argument here is that the Tribunal's letter did not include:

    a)Mr X’s statement to AFP; and

    b)Agreed statement of facts lodged in the criminal proceedings of Mr X.

14. Relevantly in its Reasons at [42] the Tribunal says:

    The Tribunal provided all the information in writing and included a copy of the work reference found at the premises of Mr X and a copy of the work reference provided to the TRA and gave the applicants time to provide comment or response.
    (my emphasis)

15. The applicant says that the Tribunal erred in its procedural fairness obligations in not providing documents requested by the applicant. Alternatively, the applicant says that the Tribunal’s obligations are raised simply by its reliance on the documents in the possession of the Tribunal and not predicated by any request by an applicant. Counsel for the applicant says that section 362A sits within a set of provisions regarding the codified set of procedural fairness obligations specifically in respect of “written material”. Section 362A entitles an applicant to access to written material given or produced to the Tribunal and sits separately from section 359AA, which deals with “particulars of information”.

16. The applicant argues that all of the above must be read against section 360 which the authorities make clear supposes that an applicant is to be invited to appear before the Tribunal to give evidence and present arguments in a “full and meaningful” hearing.

17. Counsel for the first respondent in opposing this argument concedes that section 362A refers to tangible “documents” as opposed to “information”. Counsel, however, emphasises that the section only entitles an applicant to “access” to the documents, rather than an obligation on the Tribunal to “give” the documents. The first respondent compares section 362A with sections of the Act, such as section 359A(2), which do, in fact, oblige the Tribunal to “give” in support of his argument that the distinction in wording in the statute is deliberate in its intent. Counsel for the first respondent says that the statute does not contemplate a free – standing obligation on the Tribunal to give documents but only on request.

18. The first respondent mounts a collateral argument being that the applicant having been provided with the two letters/references and time to respond does not complain to the Tribunal that he has not been provided with the statement to the AFP and/or the statement of agreed facts with the implication being that the applicant's request had, in fact, been complied with by the Tribunal to the satisfaction of the applicant.

19. Whilst I superficially find some merit in the argument of counsel for the applicant that section 362A compliance need not be predicated by a request (as argued by counsel for the respondent), I do not need to decide that semantic controversy. Rather, I am satisfied that the applicant did make a request, although perhaps inelegantly, for the statement to AFP and the statement of agreed facts. I gain this satisfaction from the transcript itself and from its context. The member first raises the circumstance of Mr X at the hearing. The existence of dual references is then raised. The member then moves directly to read the statement made by Mr X to AFP before offering a 15 minute adjournment for the applicant and her representative to consult. The transcript then discloses the following:

    Member:Now, I've given you a lot of information and I would like you both to sort of comment on that information… (my emphasis)

    I was discussing with the them and I don't know if they really – or if she really understood very clearly what was being said, and they mentioned that there was some major differences in the two letters… (my emphasis).

    Mr Mittal:No, they said that there was major differences.  So they would like to have that letter sent to us and we will have a look at it, whatever you have, read out from those statements (my emphasis), and will probably make a proper comment. That's what I do understand from these two.

    Member:If I can have those letters back and then I’ll mail them to you or email the information.

    Mr Mittal:Yes, please.

20. Section 362A does not contemplate a written request. This is not a situation where a standard form is available. The documents are disclosed only at the hearing and the request is made orally. I understand that the representative’s statement “…whatever you have, you know, read out from those statements…” to be a request for the statements. Such a circumstance as the disclosure of the documents sent to an applicant at the hearing and without prior notice make it understandable that a consequent request may be inelegant in its language or even misunderstood by the recipient. However, to my mind, it is the rationale of the procedural fairness sections themselves that is persuasive and where I am satisfied that a request was made and where the Tribunal is acting in a way that is fair and just and where the applicant must be given a “real chance to pursue his or her case”. I am satisfied that the applicant's representative requested the evidence before the Criminal Court and that such documentary evidence was not provided causing the Tribunal to fall into jurisdictional error in failing its obligations under section 362A.[1]

    [1] Minister for Immigration and Border Protection v Dhioon [2014] FCAFC 157

Ground 2

1. Secondly, the applicant argues that the Tribunal breached its obligation under section 359A to give particularised information (as opposed to documents). The “information” here must be “adverse” and information that the Tribunal considers in the process of affirming the decision under review. The Tribunal is not obliged to give the applicant an ongoing summary or a running commentary on the evidence generally. The obligation is limited to adverse information which it pre-emptively considers will form part of its reasoning process to affirm a delegate’s decision.[2]

   [2] Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR507

1. This argument was not developed by the applicant’s counsel with any specificity in either written or oral submissions and, at best,
   I understand this to be nothing more than an alternative argument to ground 1. However, without further particulars or developed argument, I find that the applicant’s argument here to be misconceived and with no merit.

Ground 3

1. Thirdly, the applicant argues that the Tribunal fell into error in ignoring the evidence of the applicant's husband, Mr Kandel, being evidence which corroborates the applicant's own evidence that she had completed the work experience.

2. The transcript discloses oral evidence from the applicant's husband, Mr Kandel.  The Tribunal sets out its findings of fact at [44] and [45] of its Reasons and is silent as to the evidence of Mr Kandel.

3. The applicant argues that Mr Kandel’s evidence is corroborative of the applicant's claims and therefore critical in what is essentially a credit issues.  The applicant argues that silence in the Reasons is indicative of a failure to consider or deal with that evidence and causes the Tribunal to fall into jurisdictional error.[3]

   [3] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99

4. The evidence of Mr Kandel is brief and limited.  The transcript at page 35 line 29 discloses:

   Even after baby, I look after the baby, she going to the (indistinct) skill.  She going temporary time just there, you know, as practice, that's all, that's it. 

5. The first respondent argues that the Tribunal did in fact record this evidence at [34] of its Reasons and then deals with it in an in globo sense [44] within the phrase “after carefully considering the information above that, the tribunal finds…”

6. The first respondent concedes that there is no detailed critical analysis of this evidence in the findings [44] and [45] but this is not necessary given the issue being considered by the Tribunal and the character of Mr Kandel’s evidence.

7. I accept the submissions of Counsel for the first respondent that the Tribunal did not fall into jurisdictional error of the type contemplated by SZRKT. The Tribunal was concerned with the issue of false or misleading information as to the period of work experience of the applicant and the number of hours she worked and particularly the presentation of a bogus document. Mr Kandel’s evidence does not assist in resolving those issues. That is, the suspicion of the Tribunal is unambiguously in respect of the involvement of Mr X and the work reference.

1. The obligation of the Tribunal is to set out in its Reasons its findings of fact which it (my emphasis) considers to be material and it is not required therefore to comment on each piece of evidence. It follows that a reviewing Court should not lightly infer that relevant material has been overlooked.[4] In this case the relevant distinction is between the overlooking of a “relevant consideration” or a mere “item of evidence”. Without this Court itself falling into an impermissible merits review, I am satisfied that the evidence of Mr Kandel was not critical to the issue troubling the Tribunal and that the failure to give critical exposure of that evidence in its reasons does not cause the Tribunal to have fallen into jurisdictional error.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 9 November 2016

[4] SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152

Correction

On Page 2 the Solicitors for the Applicants have been changed from Vernon De Gama and Associates to Da Gama Pereira and Associates Pty Ltd.