Sapkota v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 648
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sapkota v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 648
File number: MLG 2101 of 2018 Judgment of: JUDGE FORBES Date of judgment: 28 July 2023 Catchwords: MIGRATION – judicial review of Administrative Appeals Tribunal decision to affirm refusal of Skilled (Residence) (subclass 866) visa – where Tribunal not satisfied that applicant met relevant Public Interest Criteria – where delegate found that applicant provided a bogus document in support of visa application – where Tribunal reasonably suspects skills assessment based on false or misleading work reference letter – where there was evidence of fraudulent conduct by rogue – where the work experience employer suspected of involvement in production of false or misleading reference letter – whether failure of Tribunal to summons convicted rogue or call employer denied the applicant a hearing pursuant to s 360 – whether Tribunal failed to make an obvious inquiry – whether failure to summons or call fraudster and/or employer legally unreasonable Legislation: Migration Act 1958 (Cth), s 5, 359, 360, 362, 363
Migration Regulations 1994 (Cth), reg 886.225
Cases cited: Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14
Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23]-[24]
Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; 243 ALR 691; [2007] FCAFC 162
Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318
Minister for Immigration and Citizenship v Singh (2014) 231 FCR 437; [2014] FCAFC 1
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; (2003) 198 ALR 293; [2003] FCAFC 126
Salopal v Minister for Immigration and Border Protection [2018] FCA 1308
Singh v Minister for Immigration and Border Protection [2017] FCA 1285
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486
SZMJM v Minister for Immigration and Citizenship [2010] FCA 309
Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22Division: Division 2 General Federal Law Number of paragraphs: 106 Date of hearing: 25 May 2022 Place: Melbourne Counsel for the Applicants: Ms Costello Solicitor for the Applicants: Da Gama Pereira and Associates Counsel for the Respondent: Ms Mills Solicitor for the Respondent: Mills Oakley ORDERS
MLG 2101 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: INDIRA KANDEL SAPKOTA
First Applicant
DAYA RAM KANDEL
Second Applicant
SAFAL KANDEL
Third Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE FORBES
DATE OF ORDER:
28 july 2023
THE COURT ORDERS THAT:
1.The First Applicant be appointed the litigation guardian for the Third and Fourth Applicants.
2.The Fourth Applicant be removed from the proceeding.
3.Leave is granted for the Applicants to file and serve an Amended Application.
4.The application for judicial review be dismissed.
5.The Applicants pay the First Respondent’s costs which, in default of agreement, shall be in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as at 25 May 2022.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 29 June 2018, which affirmed a decision of the Minister (the delegate) not to grant the applicants a Skilled (Residence) (Class VB, Subclass 866) visa (the visa).
The Tribunal’s decision was based on the conclusion that it was not satisfied that the first applicant, who was the primary visa applicant, satisfied the Public Interest Criteria 4020 (PIC 4020), which is a condition of the grant of a visa under cl 886.225 of schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). The Tribunal’s conclusion that the first applicant did not meet PIC 4020 was based on its finding that she had provided a bogus document in support of her visa application, namely a Trades Recognition Australia (TRA) skills assessment. A bogus document is one which the Tribunal “reasonably suspects” was obtained because of a false or misleading statement[1].
[1] Migration Act 1995 (Cth), s 5
Having heard and considered written and oral submissions from the applicants and the Minister, I have determined that the Tribunal’s decision is not affected by jurisdictional error. My reasons follow.
BACKGROUND
The first applicant is a female citizen of Nepal and was the primary applicant for the visa[2]. The second applicant is the first applicant’s husband and the third and fourth applicants are their children.
[2] Court Book (‘CB’) p 1 – 2
On 28 December 2009, the first applicant applied for the visa on the basis that she possessed the skills for her nominated occupation as a hairdresser. In support of her application, she submitted a skills assessment issued by TRA to the delegate[3]. In part, the skills assessment was issued on the basis of a reference letter dated 15 May 2009 signed by Mr Kavadias, the manager/owner of Enigma Hair Studio, which stated that the first applicant had completed 915 hours of work experience as a hairdresser at his salon (‘the reference letter’)[4].
[3] CB 84 – 87
[4] CB 20 – 212
Relevantly, the reference letter ends with the invitation: “If you need any other information regarding Ms INDIRA KANDEL Sapkota, please feel free to contact me on [telephone numbers redacted]”.[5]
[5] CB 210 – 212
An additional letter from Mr Kavadias was provided to the delegate, which also affirmed that the first applicant had completed work experience at Enigma Hair Studio on a voluntary basis between 15 May 2008 and 12 May 2009[6].
[6] CB 114
On 8 October 2014 the delegate refused the visa application. The delegate was not satisfied that the first applicant met the requirements of clause 886.225 of Schedule 2 to the Regulations as she did not satisfy the PIC 4020(1) and there were no grounds to waive this requirement under PIC 4020(4)[7].
[7] CB 408
Specifically, the delegate found that the reference letter which stated that the first applicant had completed at least 900 hours of voluntary work experience at Enigma Hair Studio, which had been provided to the TRA and in part was the basis upon which the TRA issued the applicant a skills assessment, was a bogus document within the meaning of the Migration Act 1958 (Cth) (the Act)[8].
[8] CB 178
In reaching the conclusion that the work reference letter was a bogus document, the delegate gave weight to the fact that a Mr Carmine Amarante had confessed to and pleaded guilty in the County Court of Victoria to creating false work references on behalf of Australian employers (including Mr Kavadias of Enigma Hair Studio) which he sold to overseas students for them to use in obtaining positive skills assessments from TRA.
Tribunal’s First Decision and Application for Judicial Review
On 23 October 2014 the applicants applied to the then Migration Review Tribunal for merits review of the Minister’s decision[9]. The applicants were assisted by a registered migration agent during this process.
[9] Supplementary Court Book (‘Supplementary CB’) p 17
On 27 January 2015 the Tribunal sent the applicants an email, via their migration agent, inviting them to attend a hearing scheduled on 17 March 2015[10].
[10] CB 184 – 190
The applicants appeared before the Tribunal on 17 March 2015 to give evidence and present arguments.
On 24 March 2015 the Tribunal affirmed the delegate’s decision to refuse the first applicant a skilled visa (Tribunal’s first decision).
On 16 April 2015 the applicants applied to the then Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision.
On 9 November 2016 Judge McGuire, as his Honour then was, held that the Tribunal had fallen into jurisdictional error by failing to carry out its obligation to provide documents pursuant to a s.362A request[11]. The Court found that the Tribunal had not met a request from the applicants’ agent for disclosure of the evidence before the criminal court in respect of Mr Amarante. His Honour Judge McGuire ordered that the Tribunal’s decision be quashed and that the application be remitted to the Administrative Appeals Tribunal for re-hearing[12].
[11] CB 404 at [17]
[12] CB 250
Remittal hearing
On 26 June 2017 the Tribunal invited the applicants to comment on or respond to information pertaining to Mr Amarante, pursuant to s 359A[13]. The available information included a detailed statement made by Mr Amarante to the Australian Federal Police in which he described and admitted to his criminal conduct. The information also included work references found on a USB stick that had been obtained from Mr Amarante’s home which included a work reference for the employer Enigma Hair Studio for Ms Indira Kandel Sakota (DOB [redacted])[14].
[13] CB 272 – 296
[14] CB 277
On 10 July 2017 the applicants’ representative provided a response to the Tribunal’s invitation to comment[15]. In their submission, the applicants’ representative pointed out various differences between the reference letter seized from Mr Amarante’s USB and the reference letter that was provided to the TRA at the time. These differences included the type font, the asserted number of hours worked (900 cf 915), the spelling of Ms Sapkota’s name (Sakota cf Sapkota), differences in formatting and that Mr Kavadias’ signature only appeared on the letter submitted to the TRA.
[15] CB 300 – 303
In support of the claims advanced, the applicants also provided the Tribunal with several photos of the main applicant with Mr Kavadias and what is represented to be Enigma Hair Studio[16].
[16] CB 304 – 315
The applicants’ representative also requested that the Tribunal provide all information to the applicants as required by s 362A, noting that a “full submission” will be provided once all documents held on file by the Tribunal have been released[17].
[17] CB 303
On 25 October 2017 a pre-hearing submission was provided to the Tribunal by the applicants’ representative. Among other things, the applicants drew the Tribunal’s attention to Mr Amarante’s declaration that it was his “recollection” that “none of the students completed” the work experience[18]. The applicants contended that Mr Amarante’s statement was vague and could not be relied upon as evidence that the main applicant in this case did not complete the claimed 915 hours of work experience.
[18] CB 353 – 354
On 26 October 2017 the applicants attended a hearing before the Tribunal with the assistance of their representative, to give evidence and present arguments. The Tribunal also took oral evidence from three witnesses who were friends of the applicants[19], all of whom claimed to have seen the main applicant at the salon.
[19] CB 407 at [33]
On 9 November 2017 the applicants’ representative provided the Tribunal with post-hearing submissions[20]. The applicants contended, among other things, that the Tribunal is required to exercise its powers to obtain probative evidence relevant to the applicant’s claims, including her claims that she had worked 915 hours at Enigma Hair Studio and that she had not paid Mr Amarante or any migration agent for the reference letter. Relevantly, the submissions referred to the applicants’ requests that the Tribunal exercise its power to summons Mr Amarante or Mr Kavadias as witnesses under s 363(3)(a) of the Act, requests which the Tribunal had declined. A statutory declaration[21] made by the main applicant and her spouse dated 9 November 2017 was also provided to the Tribunal, as well as a list of relatives[22].
[20] CB 377 – 385
[21] CB 386
[22] CB 387 – 390
Tribunal decision and reasons
On 29 June 2018 the Tribunal again affirmed the delegate’s decision to refuse to grant the visas on the basis that the main applicant had failed to satisfy cl.4020(1) (Tribunal’s second decision)[23].
[23] CB 399 – 427
In its decision record, the Tribunal summarised the delegate’s decision and the applicants’ claims and evidence[24].
[24] CB 400 – 416
The Tribunal recorded the applicant’s explanation about how she went about obtaining the work reference [45] and her submissions about the differences between the letter found on Mr Amarante’s USB and the one she submitted to TRA [47]-[49]. At [44] the main applicant explained why Mr Kavadias did not attend the first or second Tribunal hearings – on the first occasion he had been asked but was too busy and on the second occasion he had not been asked.
At [52] the Tribunal noted that applicant’s submission that evidence from Mr Amarante should be given little if any weight due to his lack of credibility. In response to the applicants’ request during the hearing that the Tribunal summons Mr Amarante, the Tribunal stated at [52] that:
“The Tribunal indicated that it was disinclined to summons Mr Amarante to give evidence, when he had already given extensive and detailed evidence in relation to the criminal investigation and court case against him, and had been convicted of fraud on that basis, and where that evidence had already been provided to the applicants and the agent for comment.”
and at [60]
“The Tribunal indicated again that it was disinclined to do so as it considered that it would be of little to no utility as Mr Amarante had already given detailed evidence concerning the operations of his document fraud scheme, and that a reference letter from (sic) purporting to be from Enigma Hair Studio for the applicant had been found on his USB stick and had been an exhibit in his court case. It further expressed the view that the fact that he had been convicted of criminal offences did not make his evidence about these matters inherently unreliable; if anything, his evidence on these matters was what led to his conviction(s)…”
The Tribunal also noted the post-hearing submissions from the applicants which reiterated their submission that the Tribunal should exercise its powers to summon Mr Amarante to test his evidence and Mr Kavadias to give evidence about the applicant’s work experience and the circumstances surrounding the signed reference letter.
At [74] the Tribunal rejected the applicant’s submission that it had a duty to summons Mr Amarante to give evidence and/or investigate the circumstances in which any of his statements to the Australian Federal Police and/or Departmental officers were drafted. After discussing the information and evidence available to the Tribunal concerning Mr Amarante, the Tribunal explained that it had elected not to exercise its discretion because:
“Under the circumstances, the Tribunal considers that summonsing Mr Amarante in 2018 would be highly unlikely to provide any additional evidence of any benefit to the applicant’s case.”
and added at [75] that:
“The Tribunal sees no basis on which his detailed evidence in this regard should be second-guessed or questioned or why his conviction for the same activities undermines his credibility about the scheme of which he was the principal architect.”
As to the applicants’ submission that Mr Kavadias should also have been summoned or called, the Tribunal stated at [80] as follows:
“The Tribunal has considered the fact that Mr Kavadias provided a written statement on 19 January 2012 confirming that the applicant did work for him as claimed in the reference letter given to TRA, but gives this statement little weight. The Tribunal considers that this statement is consistent with Mr Kavadias being motivated to support that the work was done, in order to avoid any damage to his reputation. Mr Kavadias’ confirmation is also consistent with Mr Amarante’s evidence that employers (including Mr Kavadias) were briefed to corroborate the claims in the false work references if contacted (paragraph 23 and 24 of [Amarante’s] statement of 21 April 2011). The Tribunal notes that the applicant did not, or was not able to, bring Mr Kavadias to the most recent Tribunal hearing to give evidence on this issue. The Tribunal did not consider it worthwhile issuing a summons to him, given the high likelihood that he would simply confirm his written statement.”
Having considered all of the evidence before it, the Tribunal did not accept that the main applicant completed over 900 hours of work experience at Enigma Hair Studio between 15 May 2008 and 12 May 2009[25]. As such, it concluded that the reference letter provided by Enigma Hair Studio and given to the TRA contained a false or misleading statement to the effect that the applicant had completed over 900 hours of work experience.
[25] CB 419 at [81]
In circumstances where 900 hours was a mandatory requirement for the applicant to obtain a positive TRA skills assessment, the Tribunal suspected that the TRA skills assessment had been obtained by the applicant on the basis of a false or misleading statement, and is therefore a bogus document within the meaning of s 5(1) of the Act[26].
[26] CB 419 at [81]
At [103] the Tribunal found that the main applicant did not satisfy PIC 4020 for the purposes of cl.886.225 and was therefore not entitled to a subclass 866 visa. Accordingly, the second, third and fourth named applicants did not meet the secondary criteria to be members of the family unit of a person who holds a subclass 886 visa and there was no evidence that any of them meets the primary criteria in their own right.
PROCEEDINGS IN THIS COURT
By their Originating Application filed on 19 July 2018, the applicants contend that the Tribunal’s second decision was affected by jurisdictional error on the following three grounds (particulars omitted):
(1)The Tribunal failed to give the applicants a meaningful opportunity to give evidence and make arguments in relation to the issues arising in relation to the decision under review in the manner required by s 360 of the Act.
(2)The Tribunal’s refusal to summon Mr Amarante to give evidence was unreasonable in the circumstances of the case.
(3)The Tribunal applied the incorrect test to Public Interest Criterion 4020(1).
On 19 November 2019 a Registrar of this Court made orders to prepare the matter for final hearing including that the applicant file and serve any amended application, court book materials and written submissions. The Minister was also directed to file and serve written submissions and a court book.
An outline of submissions was filed by the applicants on 4 May 2022 in which they indicated that ground three of the application was no longer pressed. The applicants’ submissions in relation to grounds one and two travelled beyond the pleaded grounds and asserted that the Tribunal had also erred in failing to summons or to seek information from Mr Kavadias.
The Minister filed an outline of submissions on 18 May 2022. In her written outline, counsel for the Minister engaged with the expanded grounds of review, but properly noted that the applicants should seek leave to file an amended application.
The matter came before me for hearing on 25 May 2022. Ms Costello of counsel appeared for the applicants and the Minister was represented by Ms Mills of counsel.
Preliminary matters
At the outset of the Hearing, Ms Costello raised some procedural matters with the Court, including seeking an order that the first applicant be appointed the litigation guardian for the third and fourth applicants. An order was also sought that the fourth applicant be removed from the proceeding as that child had obtained Australian citizenship. The Minister did not object to the making of those orders.
Additionally, applicants’ counsel sought the Court’s leave to amend the particulars of grounds one and two of the application to engage with the Tribunal’s alleged failure to call Mr Kavadias. The Minister did not oppose and leave was granted for the application to proceed on that basis.
Statutory framework
At the time of the Tribunal’s decision cl 886.225 of Schedule 2 to the Regulations provided that a mandatory requirement for the grant of a visa is that the applicant satisfies PIC 4020. PIC 4020(1), which required that:
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.
The meaning of “bogus document” is defined in s 5 of the 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.
As to the Tribunal hearing an application for review of a delegate’s decision, the following provisions are relevant:
(a)Section 357A provides that “In applying this Division, the Tribunal must act in a way that is fair and just”;
(b)Section 360 provides that the Tribunal must invite the applicant “to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review” except in certain limited circumstances; and
(c)Section 363(3)(a) of the Act provides that the Tribunal can summons a person to appear before the Tribunal to give evidence.
Ground One
The two grounds of review advanced in this application are closely related and assert different species of error based on the same factual findings.
The applicants contend that the Tribunal’s forensic inquiry was directed to whether the TRA skills assessment presented to the delegate was based on a document suspected of being bogus because it contained a false or misleading statement regarding the main applicant’s work experience. In respect of that inquiry, the Tribunal’s finding at [81] was:
“Having considered the available evidence, the Tribunal does not accept that the applicant did over 900 hours of work experience with Enigma Hair Studio between 15 May 2008 and 12 May 2009. It finds that there is probative evidence that the reference letter from Enigma Hair Studio given to the TRA by, or on behalf of the applicant, therefore contains a false or misleading statement to this effect. As this was a mandatory requirement to obtain a positive TRA skills assessment, the Tribunal reasonably suspects that the TRA skills assessment obtained by the applicant was obtained because of a false or misleading statement, and is therefore a bogus document...”
The finding of the Tribunal was substantially based on its acceptance of evidence of the convicted rogue Mr Amarante who confessed and pleaded guilty to systematic fraud involving hundreds of documents including work reference letters, each falsely attesting that a person had completed 900 and more hours of work experience for a range of businesses, including for Mr Kavadias of Enigma Hair Studio. In his evidence to police regarding his modus operandi, Mr Amarante made statements to the effect that based on his observation when attending participating workplaces he did not think any of the visa applicants had completed 900 hours of work.
By ground one the applicants assert that they were not given a meaningful opportunity to give evidence and make arguments in relation to the issues arising in relation to the decision under review in the manner required by s 360 of the Act. The error asserted is largely procedural.
The predicate of this complaint is that the Tribunal gave weight to the evidence obtained by the police from Mr Amarante, evidence the applicant contends was inherently unreliable and not capable of supporting the inferences drawn by the Tribunal. The applicant submits that the refusal of the Tribunal to summon Mr Amarante effectively deprived the applicants of an opportunity to test his evidence and to present their case in the manner required by s 360.
Moreover, the applicant also asserts that by not summoning Mr Amarante and/or by not calling Mr Kavadias to appear by phone or in person, the Tribunal failed to make an obvious inquiry about critical facts which were easily ascertainable. In the case of Mr Kavadias, the applicant submits that as the signatory to the reference letter he could have explained the provenance of the document and provided further detail about the applicant’s attendance at work, which would also have allowed the Tribunal to assess his credibility on such issues. In the case of Mr Amarante it is submitted that the Tribunal could have ascertained whether he attended the hair salon often enough during the relevant time to confidently conclude that the main applicant had not actually done the requisite period of work experience.
The applicants submit that the refusal to call Mr Amarante or Mr Kavadias is inconsistent with the Tribunal’s obligation to conduct a hearing. As parties themselves do not have the power to summons a witness in proceedings before the Tribunal, the applicants submit that it is incumbent on the Tribunal to call for the evidence of third parties where that is necessary for a fair hearing to be conducted. The applicants submit that insofar as the evidence of Mr Amarante and Mr Kavadias is concerned, the Tribunal effectively conducted a hearing on the papers where there was no realistic possibility of assessing their credit or testing their evidence on critical issues.
The applicants contend that the failure to call Mr Kavadias only compounded the error arising from its failure to call Mr Amarante. The applicants submit that no reasonable decision-maker in the circumstances of the present case would have refused to summon or call both to give evidence or would have relied solely on Mr Amarante’s evidence without testing it by calling both of them.
Ground Two
Ground two is a further development of ground one, but asserts legal unreasonableness as the species of judicial error. Whereas ground one asserted procedural error, ground two attacks the reasonableness of the Tribunal’s forensic findings by reason of its failure to summon Mr Amarante and Mr Kavadias to give evidence.
The applicants rely on the fact that the Tribunal declined to summon Mr Amarante despite their request that it do so. In circumstances where Mr Amarante had told police that from his recollection none of the students completed 900 hours of work experience at the workplaces involved in his scheme, it is submitted that it was unreasonable for the Tribunal not to have allowed that evidence to be tested against the applicant’s body of evidence which included photos of the main applicant at the salon and statements from people who received haircuts there.
The applicants also submit that the Tribunal unreasonably failed to summons Mr Kavadias or to contact him to verify the first applicant’s work experience and to check the provenance and veracity of the signed reference letter and letter of support. The applicants also assert that the Tribunal’s reasoning that it “did not consider it worthwhile issuing a summons to him [Kavadias], given the high likelihood that he would simply confirm his written statement”[27] was an unreasonable conclusion, in circumstances where Mr Kavadias could have given probative evidence beyond the scope of his letter. In short, the applicants contend that it was unreasonable for the Tribunal to find that the evidence of a convicted criminal was so overwhelming that it was not even worth hearing from the applicant’s employer.
[27] Reasons at [80]
In the case of both grounds one and two, the applicants assert that the errors were sufficiently linked to the outcome to constitute a constructive failure by the Tribunal to discharge its statutory task of review. The applicants submit that the errors are material and that absent error the outcome of the review may have been different.
Relevant legal principles
In order to demonstrate jurisdictional error, it must be shown that the Tribunal has acted outside its power and authority or failed to exercise its statutory responsibilities. Jurisdictional error, in the sense relevant here, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by the Act[28].
[28] Wei v Minister for Immigration and Border Protection [2015] HCA 51; (2015) 257 CLR 22 at [23]
It is a failure to comply with one or more statutory preconditions or conditions that must be met or observed in order for the decision-maker to make a decision that is within the scope of authority which the statute confers on the decision-maker[29].
Meaningful opportunity to give evidence and make arguments in relation to the issues arising in relation to the decision under review in the manner required by s 360 of the Act.
[29] Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [23]-[24]
There are two key requirements for compliance with s 360, namely:
(a)the issuing of an invitation from the Tribunal to an applicant to attend a hearing[30]; and
(b)the applicant being provided with an opportunity to give evidence and present arguments relating to issues arising in relation to the decision under review[31].
[30] Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; (2003) 198 ALR 293; [2003] FCAFC 126 at [33] per Gray, Cooper and Selway JJ
[31] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63 at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon J
Not only is the Tribunal required to invite an applicant to a hearing, it must also raise with the applicant the issues relating to the decision under review. It is ordinarily the case that the issues arising in relation to a decision under review will be the issues which the delegate identified as determinative against the applicant[32].
[32] SZBEL at [35]
The “issues” which arise in relation to the decision under review do not include the factual matters that comprise, or “go to”, the issues themselves[33]. A Tribunal is not required to descend into all the underlying factual matters of each issue when meeting its obligation under s 360. Nor is a Tribunal required to provide “a running commentary upon what it thinks about the evidence that is given”[34].
[33] see, for example, SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [25] per Bennett J
[34] Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; 243 ALR 691; [2007] FCAFC 162 at [88]–[89] per Emmett, Weinberg and Lander JJ
The invitation and opportunity to appear before the Tribunal to give evidence and present argument must be meaningful and cannot be a “hollow shell or an empty gesture”[35]. If a hearing is held, it must be a hearing in substance and not merely in form[36]:
[35] Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; [2003] FCAFC 126 (SCAR) at [33] and [37] per Gray, Cooper and Selway JJ.
[36] Minister for Immigration and Citizenship v SZNVW (SZNVW) at [76] per Perram J.
However, proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a visa to establish the claims that are made[37].
[37] SZBEL at {36]-[40]
Failure to make an obvious inquiry
In Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 the High Court considered the circumstances in which there may be jurisdictional error if the Tribunal failed to make an obvious inquiry. The plurality stated the following general principle at [25]:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. (footnote omitted)
However, the Tribunal has no general obligation to initiate enquiries or to make out an applicant’s case for him or her. A failure to make inquiries will only amount to jurisdictional error in “rare or exceptional circumstances” and in order to succeed an applicant must show that it was legally unreasonable for the Tribunal not to have made the inquiry[38].
[38] Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318 at [60] (Kenny J) and the authorities cited therein
The mere fact that it may have been reasonable to make an inquiry does not mean that the lack of such an inquiry amounts to jurisdictional error[39].
[39] SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J); Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 at [33]
The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument he or she wishes to advance in support of their contention[40].
[40] Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Gummow and Hayne JJ at [187]
Legal unreasonableness as jurisdictional error
The requirement that a statutory power be exercised within the bounds of reasonableness is an implied condition of the statutory conferral of the power[41].
[41] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [53] (Gageler J), [80] (Nettle and Gordon JJ) and [131] (Edelman J)
Whether the decision in a particular case meets the required standard of reasonableness (and is therefore within power) must be decided by the court on review based upon a consideration of the facts of the particular case. It is invariably a fact-dependent exercise[42].
[42] SZVFW at [61]‑[70] (Gageler), [84] (Nettle and Gordon JJ) and [140]‑[141] (Edelman J); Minister for Immigration and Citizenship v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [42]
Where reasons are given for the exercise of a discretionary power, the focus should be upon those reasons. Where those reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered legally unreasonable[43].
[43] Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [44]-[47]
The concept of legal unreasonableness does not provide a vehicle for the Court to remake the decision according to its view as to reasonableness. Parliament has conferred the power on the decision-maker. The Court’s function is a supervisory one as to legality[44].
[44] see Li at [30], [66] and [105]
In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 Allsop CJ cautioned at [12] that it is 'crucial to remember' the task is not to assess what the court thinks is reasonable and thereby conclude that any other view displays error. Rather, the task is to evaluate the quality of the decision, by reference to the statutory source of the power.
At all times it must be borne in mind that '[s]omeone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as "illogical" or "unreasonable", or even "so unreasonable that no reasonable person could adopt it". If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence'[45].
CONSIDERATION
[45] Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [40] (Gleeson CJ and McHugh J)
Ground one
In relation to the first ground of review, the Minister submits that the failure to call Mr Amarante and/or Mr Kavadias does not amount to a failure to give the applicant a meaningful opportunity to give evidence and present arguments as required by s 360, nor was it a failure to enquire about a critical fact that can be easily ascertained.
Failure to provide a hearing pursuant to s 360
At paragraphs [25]-[27] of her written submissions, counsel for the Minister contended (footnotes omitted):
[25] In accordance with s 360 of the Act, the applicants were invited to attend a hearing before the Tribunal (CB 317-324). They in fact did attend a hearing and were assisted by their representative at this hearing (CB 370-372). The applicants’ representative was also given the opportunity to file additional submissions after the hearing filed on 9 November 2017 (CB 376-391). The Tribunal summarised and considered these submissions (CB 411 [61]-[62]).
[26] The applicant’s complaint that she was denied the opportunity to “test” Mr Amarante’s evidence is misguided for two reasons. First, the Tribunal’s processes are not governed by strict rules of evidence. Pursuant to ss 366D and 363A of the Act, no person appearing before the Tribunal is entitled to examine or cross-examine any other person appearing before the Tribunal to give evidence, so it cannot be said that the applicant lost the opportunity to cross examine Mr Amarante. Secondly, the applicants’ representatives were provided with the evidence that was presented to the Court in relation to Mr Amarante’s guilty plea (subject to a suppression order preventing disclosure of some of the material provided to third parties) (CB 268-271), so the contention that she was denied the opportunity to test that evidence has no proper basis.
[27] The Tribunal weighed up the evidence of the applicant and the evidence before it that Mr Amarante had admitted to producing fraudulent work references and determined that it preferred the evidence of Mr Amarante over the applicant. It was open to the Tribunal to determine the appropriate weight to be given to the matters which it was required to take into consideration.
I agree with the Minister’s submission. In my view there was no actual or constructive failure on the part of the Tribunal to invite the applicant to a hearing or to provide the applicant a meaningful opportunity to give evidence and present arguments as contemplated by s 360 of the Act.
The applicant was plainly provided with an invitation to attend a hearing. She was afforded the opportunity to provide pre-hearing and post-hearing submissions. The applicant was put on notice as to the issues arising in relation to the delegate’s decision and there can be no doubt that she understood what they were. The remittal to the Tribunal after the first judicial review decision and the provision to the applicant of a substantial body of evidence regarding Mr Amarante’s fraudulent scheme is clear evidence that the applicant was on notice as to the potentially dispositive issues. The applicant and her representative were afforded an opportunity to respond to that material and did so.
Furthermore, any alleged failure to summons Mr Amarante did not undermine the fairness of that process. A review by the Tribunal is inquisitorial, not adversarial, and the applicant had no right to cross-examine Mr Amarante. I agree with the Minister’s submission that the applicant cannot be said to have lost an opportunity to cross-examine him.
I also find that the alleged failure to summons or contact Mr Kavadias did not undermine the applicants’ substantive right to a hearing. The applicant informed the Tribunal that Mr Kavadias had been asked to attend the first Tribunal hearing and that he was unable to do so because he was busy. The first applicant’s evidence was that she had not asked Mr Kavadias to the second Tribunal hearing because she had forgotten the date of the hearing until she got a confirmatory text message from the Tribunal shortly before the hearing. In an inquisitorial review it is for the applicant to make good her claims and there was every opportunity for her to do so by taking steps to adduce evidence from Mr Kavadias.
In any event, at the applicant’s request the Tribunal did consider whether Mr Kavadias should be summoned. The Tribunal declined to do so given the high likelihood that he would simply confirm the written statement he provided to the Tribunal dated 19 January 2012. There was no evidence or submission from the applicant that if called or summoned Mr Kavadias would do more than reiterate the contents of his letters. Given the obvious issues to be determined on the review, the applicant had ample time to engage the witness to provide additional probative evidence.
Failure to make an obvious inquiry
As previously mentioned the applicant also cast the Tribunal’s failure to summons Mr Amarante or to call Mr Kavadias as a failure to make an obvious inquiry about a critical fact in the SZIAI sense and thus as jurisdictional error.
Counsel for the Minister, Ms Mills, took the Court to two cases which she submitted were highly relevant and directly on point to the issues raised in this case. Both cases involved applicants who had sought skilled migration visas but whose applications failed due to Mr Amarante’s fraudulent involvement in the production of bogus TRA skills assessments. In each case the applicant’s claimed the Tribunal’s failure to issue a summons to Mr Amarante and/or the relevant employer amounted to a failure to make an obvious enquiry about a critical issue which was easy to ascertain (see SZIAI at [25]).
In Salopal v Minister for Immigration and Border Protection [2018] FCA 1308 a skilled migration visa application was refused after a TRA skills assessment was found to be bogus because the delegate reasonably suspected it was obtained because of a false or misleading statement made to TRA. In that case the statement from the employer was that the applicant, Mr Salopal, had worked 900 hours as a trainee pastry chef. An issue as to the bona fides of the employer’s letter had been raised formally with Mr Salopal by the Department and he was given an opportunity to respond to those concerns. As in the present case, concerns about the hours worked by the applicant stemmed from admissions made by Mr Amarante to the police and evidence of an unsigned letter found on a USB stick belonging to Mr Amarante. Again, like the current case, the draft letter on the USB was similar, although not identical, to the letter ultimately submitted to the TRA.
In the hearing before the Tribunal Mr Salopal’s employer, a Mr Ploumidis, gave evidence by telephone but ultimately more weight was given to the evidence of Mr Amarante’s admissions. The Tribunal concluded on the whole of the evidence that the version of events advanced by the applicant did not negate the alternative version that Mr Amarante had been paid to produce a bogus document.
On review to the then Federal Circuit Court of Australia the applicant claimed that the Tribunal’s failure to issue a summons to take evidence from Mr Amarante to confirm whether any of the reference letters on his USB were genuine was a failure to make an obvious enquiry and thus constituted jurisdictional error. In dealing with that matter, the Court found at [33]-[34]:
The applicant also took issue with the Tribunal not issuing a summons to Mr Amarante to take evidence from him to confirm whether any of the reference letters on his USB were genuine. In my view, this was not an obvious enquiry. It makes no sense that Mr Amarante, as the mastermind of a fraudulent scheme to create false work references for students, would have genuine work references for students in his possession. In any event, any evidence Mr Amarante gave to the Tribunal would be questionable because he had pleaded guilty to perpetrating a very significant fraud. This matter does not fit within the SZIAI criteria.
On appeal to the Federal Court (Colvin J) the applicant claimed that the Federal Circuit Court misapplied the test in Minister for Immigration and Citizenship v SZIAI. His Honour found that there was no such error by the court below.
The Minister submits that the alleged jurisdictional error in Salopal is not materially different from that alleged in the present case and that the Tribunal in the present case adopted the same rational reasoning process with respect to Mr Amarante and any evidence he might give.
At [52] of its reasons the Tribunal noted the submission from the applicant’s agent that any evidence given by Mr Amarante while under investigation or during the County Court case should be given little if any weight due to his lack of credibility. The Tribunal also noted the applicant’s request to summon Mr Amarante to provide evidence that he did not know the applicant.
The Minister concedes that the issue of calling Mr Amarante was squarely raised but submits that it was then dealt with in a similar manner to Salopal. At [52] the Tribunal indicated that it was disinclined to summons Mr Amarante to give evidence when he had already given extensive and detailed evidence in relation to the criminal investigation and had been convicted of fraud on that basis and that evidence had already been provided to the applicants and their agent for comment. At [73] the Tribunal specifically refers to the applicants’ submission that it had a duty to enquire and specifically that the Tribunal should summons Mr Amarante to provide oral evidence. Then, at [74] the Tribunal records that it considered these arguments carefully and rejected the applicants’ submissions for the reasons there set out - which are reasons which largely parallel those given for the similar decision in Salopal.
The Federal Court also considered a very similar alleged ground of jurisdictional error in Singh v Minister for Immigration and Border Protection [2017] FCA 1285. In that case Mr Amarante was again responsible for providing a work reference letter and the issue before the Tribunal was whether a bogus document had been provided in support of the visa application. The applicant, Mr Singh, argued that there was a jurisdictional error by the Tribunal’s failure to call his employer, a Mr Tripodi, as he may have been able to confirm whether Mr Singh undertook the requisite number of hours of work experience in his business - in effect the direct parallel to the claim in this case that the Tribunal should have called Mr Kavadias.
In Singh Justice Murphy found that the case was not one of the “rare and exceptional” cases in which a decision-maker is under a duty to make enquiries. At [66]-[72] his Honour gave three reasons why no such duty arose:
(a)First, the Tribunal knew the evidence that the employer would give if he was called to give evidence. He had provided two letters, both signed, in which he had stated that the applicant and undertaken more than 900 hours of work experience. There was nothing to indicate that the employer, if called, would do any more than reiterate the contents of those letters;
(b)secondly, there was evidence which indicated that the employer was party to Mr Amarante’s work reference scam. If the employer had given evidence and, as could be expected, he reiterated the content of his letters, it would be open to the Tribunal to give that evidence little weight. The employer would have had little choice but to deny that he was involved in the scam and would deny that the work reference was false, so it was open to the Tribunal to infer that making further inquiries of him would not have yielded any useful information or would have made any difference; and
(c)thirdly, it was always open to the applicant to call his employer. Ultimately, it was for the applicant to advance whatever evidence or argument he wished to advance in support of his claims.
Unsurprisingly, the Minister submits that the facts of Singh are effectively on all-fours with the facts of the present case. It is submitted that the reasons given by Murphy J for rejecting the asserted jurisdictional error are persuasive if not binding and should similarly be adopted here.
In my view SZIAI directs an inquiry which is fact dependent. Accordingly, neither Salopal nor Singh should be regarded as authority which this Court is bound to follow. I accept the applicants’ submission that there are factual differences between the present case and the two Federal Court cases (for example, the differences in the letter submitted to the TRA and the one found on Mr Amarante’s USB) and that the Court here should form its own view about whether the Tribunal fell into error.
Nonetheless, I am satisfied that the reasoning in Salopal and Singh are apposite to the current case and lead to the conclusion, in the circumstances here, that this is not one of the “rare and exceptional” cases in which a decision-maker is under a duty to make enquiries.
The critical fact in the present case was whether there was evidence that the applicant had provided a bogus document in support of her application, namely one which the delegate reasonably suspects was based on a false or misleading statement. In both Salopal and Singh the Court found that there would be no practical utility in calling either Mr Amarante (in Salopal) or the relevant employer (in Singh) on that question. In each case the Court found that the Tribunal was correct to reject a call for them to give evidence because they were unlikely to depart from evidence which was consistent with their participation in the fraudulent scam. In the case of Mr Amarante, he was the mastermind of the scheme, he had given evidence to the Federal Police and had admitted to his conduct and been convicted. Mr Kavadias had signed documents consistent with an employer’s role in the scam and it was reasonable for the Tribunal to assume that he would not do other than reiterate those documents and deny involvement in the scam.
In the present case, using similar reasoning to the Federal Court in Salopal and Singh, the Tribunal considered the applicants’ requests for Mr Amarante and Mr Kavadias to be called and rejected those requests. The Tribunal’s reasons for not summonsing Mr Amarante are found at [50], [60] and [74]-[75] of the decision record and for not calling Mr Kavadias at [80]. There is no need to repeat the Tribunal’s reasons again but they closely and in my view appropriately align with the reasoning process adopted by Murphy J in Singh.
The fact that it might have been easy to call Mr Kavadias is not to the point. The ease of contact (noting that there was no evidence about how easy it would be) does not give rise to jurisdictional error. Furthermore and in any event, if the means of contacting Mr Kavadias were so easy, and his evidence so critical, it only begs the question why he was not called by the applicants to give evidence about what they knew to be a dispositive issue. The Tribunal at [80] noted that the applicants had not called Mr Kavadias and appropriately considered that to be a further reason why there was not much point in the Tribunal doing so.
For the reasons set out above I find that ground one must be dismissed.
Ground two
Unreasonableness
The applicants contend that no reasonable decision-maker in the position of the Tribunal would have failed to summon Mr Amarante or would have relied on his evidence without granting the applicants’ request for Mr Kavadias to be called.
This again is a fact-dependent exercise. It is not for the Court to remake the decision according to its own view as to reasonableness. The Court’s focus should be upon the Tribunal’s reasons and whether they provide an evident and intelligible justification for the impugned decision.
I have found, for the reasons set out above, that the Tribunal did not fall into jurisdictional error by failing to make an obvious inquiry. Implicit in my finding that the applicants have failed to establish “rare and exceptional circumstances” is a finding that they have also failed to demonstrate that it was legally unreasonable for the Tribunal not to have made the inquiry[46].
[46] Minister for Immigration and Citizenship v Le (2007) 164 FCR 151; [2007] FCA 1318 at [60] (Kenny J) and the authorities cited therein
I am satisfied that the Tribunal did carefully consider the applicants’ requests for Mr Amarante and Mr Kavadias to be called. I am also satisfied, for reasons already articulated, that the Tribunal gave an evident and intelligible justification for not calling them. It may be that a differently constituted Tribunal might have taken a different approach, but that is not the test. The decision here was within the bounds of the Tribunal’s decisional freedom and it was open.
It also follows that it was not legally unreasonable for the Tribunal to hear and determine the application without the evidence of Mr Amarante and Mr Kavadias being directly tested by cross-examination or further inquisitorial questioning. Their evidence was before the Tribunal and it was weighed with all other evidence in the proceeding, including that adduced by the applicants. The weight given to the evidence and the factual findings reached were matters for the Tribunal.
Accordingly, ground two must also be dismissed.
DISPOSITION
For the reasons set out above, the applicants have failed to establish that the Tribunal’s decision was affected by jurisdictional error.
The application is dismissed.
The applicants should pay the first respondent’s costs to be agreed or in default of agreement in accordance with the scale prescribed in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 as at 25 May 2022.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 28 July 2023
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