Sehgal v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 356
•17 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sehgal v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 356
File number(s): BRG 440 of 2024 Judgment of: JUDGE COULTHARD Date of judgment: 17 March 2025 Catchwords: MIGRATION – Temporary Skills Shortage visa – judicial review of a decision of the Administrative Appeals Tribunal – failure to consider – legal unreasonableness – no jurisdictional error established – application dismissed Legislation: Migration Act 1958 (Cth) s 5, 476(1)
Migration Regulations 1994 (Cth) cl 482.217, 482.231 of Schedule 2
Public Interest Criterion 4020
Cases cited: Bari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1819
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) CLR 611
Sharma v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1280
Talukder v Minister for Immigration and Citizenship [2009] FCA 916; (2009) 111 ALD 405
Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; 220 FCR 169
Division: Division 2 General Federal Law Number of paragraphs: 71 Date of last submission/s: 21 February 2025 Date of hearing: 21 February 2025 Place: Brisbane Applicants: The applicant appeared unrepresented in person. Solicitor for the First Respondent: Ms Hartwig - Sparke Helmore. Second Respondent: The second respondent filed a submitting notice save as to costs. ORDERS
BRG 440 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: GARIMA SEHGAL
First Applicant
KARAN SEHGAL
Second Applicant
SARTAJ SEHGAL
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE REVIEW TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE COULTHARD
DATE OF ORDER:
17 MARCH 2025
THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the first respondent costs, fixed in the amount of $6500.00.
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 COULTHARD
INTRODUCTION
Before the Court, is an application for judicial review of a decision of the then Administrative Appeals Tribunal (“the Tribunal”) by which the Tribunal affirmed a decision of a delegate of the Minister for Home Affairs, (as the Minister was then called) (“the delegate”), to refuse to grant the applicants a Temporary Skill Shortage (Medium Term) (subclass 482) visa.
BACKGROUND
Application for a visa and the delegate’s decision
The applicants are citizens of India. The first applicant (“the applicant”) arrived in Australia on 22 July 2019. On 17 February 2021, the first applicant made an application for a Temporary Skill Shortage (Medium Term) (subclass 482) visa (“the visa”) (Court Book (“CB”) 1-20). The nominating employer was The DownUnder Gill Family Pty Ltd (“the nominator”) and the nominated occupation was Chef (ANZSCO occupation code 351311) (“the nominated position/the nominated occupation”). The second and third applicants (the applicant’s husband and son respectively) were included in the visa application as members of the applicant’s family unit (CB 4-8).
In the visa application under “Employment History”, the applicant gave details of her current employment situation as that of full-time chef at Royal Crown Restaurant & Palace from 28 September 2009 to 30 March 2019 (CB 16). The applicant’s visa application was accompanied by several documents including:
(a)A letter dated 5 April 2019 on the letterhead of Royal Crown Restaurant & Palace addressed to “Whom It May Concern” and signed by Ramesh Sehgal who was designated as the “Owner” (“the work experience letter”) (CB 46-47);
(b)A Certificate IV in Commercial Cookery issued by the Swiss Institute Australia on 3 September 2019 (CB 31);
(c)A VetAssess Skills Assessment Result dated 27 March 2020 stating that Trades Recognition Australia had issued a successful assessment for the applicant in the nominated occupation of Chef (commercial cookery) 351311 (CB 48);
(d)Correspondence from The DownUnder Gill Family Pty Ltd explaining the core activities of its establishment, the Klay Oven; that the applicant had been offered the position of Chef in that establishment; details of the annual salary package for the position; and information about the advertisements for the nominated position (CB 134-147).
On 12 August 2021, the Department wrote to the applicant inviting her to comment (“invitation to comment”) on what it said was unfavourable information arising from an interview the Department said it had conducted with the owner of Royal Crown Restaurant & Palace restaurant, Mr Ramesh Sehgal, regarding the work experience letter. The Department advised that the applicants must satisfy the PIC 4020 requirement and said that there was evidence suggesting that a person included in the application has provided, or caused to be provided, a bogus document or false or misleading information in relation to the visa application and referred to the work experience letter (CB 197-200).
On 16 August 2021, the applicant provided a written response to the invitation to comment (CB 201-204) and attached documents including two testimonials from patrons of the Royal Crown Restaurant & Palace in which the patrons referred to the applicant as a chef (CB 207-208); an undated document titled “Self-Declaration” signed by Mr Ramesh Sehgal (CB 132-133); and medical records for Mr Ramesh Sehgal (CB 211-216).
On 17 November 2021, the applicant’s migration agent provided a written submission about what were said to be further developments since the applicant’s response to the invitation to comment. That submission concerned the health of Mr Ramesh Sehgal at the time the Department interviewed him and asked the Department not to base its decision solely on that interview (CB 219). Documents described as “medical documents” concerning Mr Ramesh Sehgal were attached to the letter (CB 211-216).
On 19 November 2021, the delegate refused to grant the applicant the visa on the basis that the delegate was not satisfied that cl 482.231 of Schedule 2 of the Regulations was satisfied which requires that the applicant has worked in the nominated occupation or a related field for at least two years (CB 220-233). In the reasons for decision the delegate said:
I have considered all of the information available to me. However, in the absence of any independently verifiable information, and in consideration of the inconsistencies raised from the interview, employment reference letter, submissions and the application form, I cannot be satisfied of the veracity of the applicant’s claimed employment experience.
As I cannot be satisfied of the applicant’s claimed employment experience, I cannot be satisfied that the applicant has at least 2 (two) years’ experience of relevant experience, as stipulated by 482.231.
Application for review to the Administrative Appeals Tribunal
On 30 November 2021, the applicants applied to the Tribunal for a review of the delegate’s decision (CB 234-241). The applicants appointed a registered migration agent to act as their representative and authorised recipient (CB 239).
On 1 December 2021, the Tribunal acknowledged receipt of the application and advised the applicants that should they wish to provide material or written arguments for consideration that they should do so as soon as possible (CB 243-245).
On 3 May 2024, the Tribunal invited the applicants to attend a hearing on 21 May 2024 to give evidence and present arguments relating to the issues arising in the case, stating that it was unable to make a favourable decision based on the information before it alone (CB 248-250).
On 14 May 2024, the applicants’ migration agent provided to the Tribunal the applicants’ written submissions (CB 261-263) and attached a “Current Company Extract” of The Downunder Gill Family Pty Ltd (CB 257-260). Those submissions largely repeated what was said by the applicant in the response to the invitation to comment.
On 21 May 2024, the applicant and the second applicant attended the hearing (CB 265-267).
On 24 June 2024, the Tribunal affirmed the delegate’s decision and gave written reasons for its decision (“Decision”) (CB 271-295).
THE TRIBUNAL’S DECISION
The Tribunal identified that the issues in the case were ([8]):
(a)whether the applicant had been employed in the nominated occupation or in a related field for at least two years as required by cl 482.231; and
(b)whether the applicant had provided a bogus document or false or misleading information in contravention of cl 482.217. This was in reference to the work experience letter.
The Tribunal identified that the applicant relied upon her work at the Royal Crown Restaurant & Palace and the work experience letter to support the claim that she had two years’ work experience in the nominated occupation of chef ([27]); her response letter (to the invitation to comment) of 16 August 2021 ([29]); Mr Ramesh Sehgal’s undated self-declaration ([29]); the Certificate IV in Commercial Cookery ([11]); and the VetAssess skills assessment ([11]).
The applicant challenged the evidence Mr Ramesh Sehgal had given in the interview by the Department officer which had led to the invitation to comment. The applicant’s evidence was that within only a few months after the interview Mr Ramesh Sehgal had been diagnosed with a brain cancer and this had caused him to be confused at the interview ([31]). The applicant relied upon the medical records provided with the applicants’ migration agent’s submissions to the Department ([32]).
Bogus document or false or misleading information
The Tribunal first dealt with whether the applicant had provided a bogus document or false or misleading information and referred to PIC 4020. The Tribunal stated that cl 482.217 requires the applicant to satisfy PIC 4020 regarding the giving of a bogus document or information that is false or misleading in a material particular in relation to the visa application and set out various statements of principle ([33]-[40]).
The Tribunal concluded that the work experience letter was a bogus document and that it was false and misleading ([58]). In so concluding, the Tribunal said that it was satisfied that:
…the work experience letter was not authored by Mr [Ramesh] Sehgal but created for the applicant to provide her with experience as chef. Notwithstanding her not having credentials of learning, necessary to perform the duties and tasks of a chef.
Before coming to that conclusion, the Tribunal set out the following summary of the evidence ([9]-[14]):
(a)The applicant worked for her future father-in-law, Mr Ramesh Sehgal in his business (Royal Crown Restaurant & Palace) in India working mainly in the restaurant;
(b)The applicant claimed to have worked there as a chef or head chef between 2009 and 2019. The Tribunal noted that there were some inconsistencies in the commencement and start dates between the visa application and Mr Ramesh Sehgal’s statement but stated that these inconsistencies were not, in its view, significant;
(c)The applicant married the second applicant, Mr Ramesh Sehgal’s son, on 11 September 2010;
(d)The applicant arrived in Australia on 22 July 2019;
(e)The applicant obtained a Certificate IV in Commercial Cookery from the Swiss Institute in September 2019;
(f)The applicant obtained a VetAssess assessment in the occupation of Chef (Commercial Cookery) which the Tribunal said, by inference, was based on the work experience letter;
(g)The second applicant was in India from 11 November 2021 to 23 November 2021 because his father, Mr Ramesh Sehgal, had been diagnosed with brain cancer.
The Tribunal then summarised the statement Mr Ramesh Sehgal had provided to the Australian High Commission in India ([15]). This is the interview that the Department referred to in its invitation to comment (CB 197-200). The statement does not appear in the Court Book and is not set out in full in the Department’s invitation to comment. The Tribunal summarised relevant parts of Mr Ramesh Sehgal’s interview including that ([15]):
(a)The name of the unregistered business was Royale Crown Palace;
(b)The business is owned by Mr Ramesh Sehgal. He is 74 years old;
(c)The second applicant is his son and earlier managed the business;
(d)The applicant worked as an assistant head cook prior to marrying the second applicant.
The Tribunal recounted that at the interview Mr Ramesh Sehgal was shown the work experience letter and that ([15(i)]):
…Mr Sehgal could not comment. Mr Sehgal said that the applicant worked as an assistant head cook earning 15,000 Indian rupees per month.
The Tribunal then referred to the Department’s invitation to comment in which the Department had asked the applicant to respond to the following questions ([17]):
(a)The business owned by Mr Ramesh Sehgal is a catering service for weddings and parties and is not a restaurant;
(b)The applicant stated that she was working in the business from 2008 and left in around 2017 or 2018 and that the second applicant was looking after the business;
(c)The work experience letter was prepared by the second applicant;
(d)Mr Ramesh Sehgal could not confirm the roles and responsibilities of the applicant as she was not reporting to him directly;
(e)The applicant is Mr Ramesh Sehgal’s daughter-in-law;
(f)Mr Ramesh Sehgal said that the applicant had taken some local training in cooking and has no professional certificate in cooking.
The Tribunal summarised the applicant’s response to the invitation to comment being the applicant’s letter to the Department of 16 August 2021 ([19]) and set out the applicant’s response to the question concerning the preparation of the work experience letter as follows:
The work experience letter was duly understood and signed by Mr Ramesh Sehgal. The work experience letter was issued by Mr Ramesh Sehgal who was the employer and owner of the business. Karan Sehgal did guide him regarding the format and presentation of the work experience in things like putting it on a letterhead, name and designation of the employee, date, covering important information like duration of employment etc. Mr Ramesh Sehgal was not up to date with how to write professional work experiences, so he took help of Karan Sehgal. Taking help from someone does not put the onus on the person for issuing a document. It is the person who signs the document is taken to have authority and legally represent the document. So by the statement he meant that he was helped by his son to prepare the basic format of the letter. Mr Ramesh Sehgal acknowledges that he signed the work experience.
The Tribunal then set out the applicant’s oral evidence at the hearing regarding the preparation of the work experience letter as follows ([20]):
Applicant: Karan just help me write the formal letter in proper English that’s all but he is the one who issued the formal letter to me, yes.
Tribunal: The letter was written by you with Karan’s help and overseen by Ramesh?
Applicant: Yes, but I wasn’t around at the time when the letter was getting prepared?
Tribunal: So this letter was getting prepared by you telling Karan, then Karan getting together with his dad?
Applicant: Yes
Tribunal: So you don’t’ know whether it was read to his father or not… You weren’t there.
Applicant: Karan guided him because he didn’t know English.
Tribunal: How did Ramesh Sehgal know what to put in the letter? Were you there?
Applicant: I wasn’t there
Tribunal: Ramesh put you down as a cook, an assistant cook or a cook or a head cook?
Applicant: I was a chef and he put me down as chef at that time.
The Tribunal then referred to Mr Ramesh Sehgal’s undated self-declaration provided to the Department after the applicant’s response to the invitation to comment. The Tribunal said that the self-declaration contradicted the earlier statement that Mr Ramesh Sehgal had given to the Department officer. The Tribunal summarised the self-declaration including that Mr Ramesh Sehgal stated ([21]):
(a)the applicant was working as a chef from 28 September 2008 to 30 March 2017;
(b)that “…I am much aware about the contents, role and responsibilities, tasks & duties mentioned in the work experience of Mrs Garima Sehgal and the same was duly signed by me only. All the duties and responsibilities mentioned in work experience letter are genuine.”
(c)in a question-and-answer format, stated:
Q1: How Garima is related to you?
A1: She is my daughter-in-law.
Q2: Do you have palace in India?
A2: We have palace and restaurant both. Do you [sic] to Corona, there is no work from last 1.5 years
Q3: Has Garima worked there?
A3: Restaurant is there since 2008. Garima has worked for 10 years. In between she got married to my son.
Q4: How much she was paid?
A4: 16,000/per month
Q5: What was the role of Garima in the restaurant?
A5: She has worked in the restaurant as an assistant chef. She use [sic] to handle marriage catering as well. Restaurant work was more in demand. She was also able to cook pasta and Manchurian.
Q6: Has Garima did any course?
A6: She has done some cooking course in local college.
Q7: Who gave her the certificate?
A7: Me and my son used to work together I don't... And I don't remember such previous things.
Q8: Is your restaurant legal?
A8: All the restaurants work like this, no one has licence here.
Q9: It means it's illegal?
A9: We are working from last 15 years; I don't know about legal or illegal.
Q10: What is the area of palace?
A10: Palace is 90' x 200'. This is under Karon's name. I also run tent house since 1972. I spend more time in tent house. If anything is required in palace then I supply it from my tent house. Even sometimes I provide labour.
Q11 how many people work in restaurant?
A11: Excluding supervisor and sweeper, there are four people who work in the kitchen. There are two kitchens, one was 15ft x 45ft and the other was 15ft x 30ft. Garima was assistant chef.
The Tribunal then referred to the applicants’ representative’s submission of 17 November 2021 (CB 218-219). This was the submission in which the representative asked the Department not to rely upon the Department’s interview of Mr Ramesh Sehgal. The representative said that Mr Ramesh Sehgal had passed away due to a brain tumour. The Tribunal then summarised the representative’s submission that after the Department had interviewed Mr Ramesh Sehgal, he had mentioned the interview to a fellow worker and said to that fellow worker that he could not understand where the call came from, he was nervous and confused and that only near the end of the interview he realised he was talking to immigration and thus his reflexes were affected by his condition ([25]). The Tribunal observed that the representative did not state that this communication was written with the applicant’s instructions, how the information was given to the representative, the name of the employee and when the information was given ([26]).
The Tribunal returned to the representative’s submission later in its Decision in relation to the documents that accompanied the submission regarding Mr Sehgal’s health ([32]). As noted above, the applicant relied upon this information to support her opinion that the record of interview of Mr Ramesh Sehgal could not be relied upon ([32]). The Tribunal described the notes as incomprehensible except for isolated comments such as memory loss for three months; suffered from headaches and vomiting. The Tribunal observed that it was not known if the notes were given to the doctor by the applicant, the second applicant or a third party or if they are observations of the doctor. The Tribunal made other observations about the contents of the documents including as to the note appearing to have been prepared after the interview ([32]).
In the Tribunal’s analysis and reasoning at as to the work experience letter, having regard to the applicant’s evidence that Mr Ramesh Sehgal may have been confused by the word “cook” and that he may have meant “chef” as the applicant’s occupation, the Tribunal said ([47]):
Further, it seems inconsistent in the applicant interpreting what Mr Sehgal meant to say and the work experience letter signed 5 April 2019, by Mr Sehgal. He referred to the applicant as being a chef in his restaurant. In setting out the applicant's main duties in the restaurant, he refers to the applicant in her capacity as a chef in supervising and coordinating activities of cooks and other food preparation workers. The only plausible explanation is that the applicant was not the author of the work experience letter, particularly when the applicant concedes that he had very little knowledge of English, if any at all. The concerning aspect of the applicant's case in the availability of the 2nd applicant and his not giving evidence which would have clarified a substantial part of the applicant's case as he was integrally involved with the business.
It seems clear that in stating that the “the only plausible explanation is that the applicant is not the author of the work experience letter” (at [29]) the Tribunal meant to say that Mr Ramesh Sehgal was not the author of the letter and referencing the applicant was a typographical error.
The Tribunal then said the circumstances leading to the creation of the work experience letter required some scrutiny in light of Mr [Ramesh] Sehgal’s record of interview and made the following observations [49]-[53]:
(a)The applicant claimed to have worked in the restaurant annexed to the tent that was used as the venue for wedding banquets and special parties. There was no evidence of a restaurant and [sic] Mr Sehgal’s statement, only the banquet hall;
(b)The applicant did not produce evidence supporting her employment as a chef or that she undertook the tasks of a chef;
(c)When asked at the hearing about payslips, the applicant stated she did not receive them, while Mr [Ramesh] Sehgal confirmed [to the Department] that his business issued payslips. The applicant also did not provide evidence such as taxation returns and the applicant said that she had not lodged tax returns. The Tribunal said this raised doubts about her employment, and that her selectiveness in accepting parts of Mr [Ramesh] Sehgal’s interview raised further questions;
(d)The applicant provided two independent records: a "consent to operate" issued to The Royal Crown (dated 19 March 2014) and a "Property Tax Payment Receipt" (dated 18 August 2021). The Tribunal said that the “consent to operate” did not advance the applicant’s claim that the business was a restaurant or wedding banquet palace or both. The Tribunal said that the “property tax payment receipt” was consistent with the more plausible explanation that the venue was always registered as a marriage and special events venue;
(e)From 12 August 2021 onward, the applicant was aware of the Department’s doubts regarding the veracity of the content of the work experience letter. Despite this, the applicant did not obtain documentary evidence to support that the applicant was employed as an assistant chef and then as a chef. The Tribunal observed that the applicant’s husband, the second applicant, had returned to India and could have helped gather the necessary evidence.
The Tribunal made findings that it was satisfied that the applicant was employed in Mr [Ramesh] Sehgal’s business as an assistant cook, cook and head cook from 2009 to 2019 doing relatively unskilled cooking tasks on a mass production basis for a wedding party or group parties ([55]-[56]). The Tribunal was satisfied that the applicant had attended a basic cooking course of a duration of 2 months and did not receive any documentary evidence of attaining skills relating to cooking ([54]).
The Tribunal said that the applicant did not provide any evidence of the tasks she had undertaken either in her occupation as a cook or chef ([57]). The Tribunal considered it significant that the second applicant who was in the business hands-on and could have clarified matters had not given evidence ([83]). The Tribunal had noted that at the commencement of the hearing the applicant advised the Tribunal that the second applicant was attending the hearing in the role of a support person only and would not be giving evidence ([5]).
The Tribunal then concluded with its finding that the work experience letter was a bogus document and false and misleading, that it was not authored by Mr [Ramesh] Sehgal but created for the applicant to provide her with work experience as a chef ([58]).
The Tribunal stated that PIC 4020 (1) and (2) can be waived if the Tribunal is satisfied that there are compelling or compassionate circumstances that affect the interests of Australia or an Australian citizen, permanent resident, or eligible New Zealand citizen. The Tribunal said that the applicant did not provide information to assist the Tribunal in determining such circumstances ([42]-[43]).
The role of chef and cook
The Tribunal then went on to deal with how to determine whether a person is undertaking the occupation of chef. The Tribunal approached this task by considering that the tasks of a chef as indicated in the ANZSCO Occupations is the main way of determining whether a person is undertaking the occupation of a chef and that in the context of this matter it involved the comparison between the occupations of chef and a cook ([60]-[62]; [64]; [65]). The Tribunal compared the different roles ([68]-[73]).
The Tribunal noted neither the VetAssess skills assessment nor the Certificate IV in Commercial Cookery are of the level of qualification required by ANZSCO for the occupation of Chef ([63]). The Tribunal noted that a Certificate IV meets the level of qualification required by ANZSCO for the occupation of cook ([66]).
As to the applicant’s role at the Klay Oven, the Tribunal considered the applicant’s evidence as to her role there and the letter provided by Klay Oven to the Department about the core activities of the business ([75]-[79]). The Tribunal considered that the applicant’s evidence did not support that the restaurant required a chef ([77]).
The Tribunal was not satisfied that the applicant had at least two years’ experience as a chef ([85]-[86]).
PROCEEDINGS IN THIS COURT
These proceedings were commenced pursuant to s 476(1) of the Act by an application filed on 15 July 2024. The applicant also filed an affidavit affirmed on 19 July 2024 that outlines the background to her application and why the applicant considers that she met the requirement of having at least two years’ experience in the nominated occupation. The affidavit annexes the Tribunal’s Decision.
Procedural orders were made permitting the applicants to file and serve an amended application with proper particulars and any additional evidence on which they seek to rely and requiring the applicants to file and serve written submissions. The first respondent was ordered to file and serve written submissions and any additional evidence on which it seeks to rely. Orders were also made as to the preparation, filing, and service of a Court Book.
The material before the Court was the application, the applicant’s affidavit, the first respondent’s response, the first respondent’s written submissions and the Court Book. Before the hearing commenced, the Court confirmed with the applicant that she had these documents in Court with her. The Court Book was made an exhibit in the proceedings.
The applicant appeared in person unrepresented. Despite being ordered to do so, the applicants did not file any written submissions. The applicant was given the opportunity to make oral submissions in support of the application for judicial review and in reply to the first respondent’s submissions. The applicant was accompanied in Court by the second applicant. The second applicant did not make any submissions.
CONSIDERATION
For the applicants to be successful the Court must be satisfied that the Tribunal’s decision is affected by material jurisdictional error.
The Court explained to the applicant that the role of the Court was limited to determining whether the Tribunal had made a legal or procedural error and that the role of the Court on judicial review is not to decide whether on the evidence before the Tribunal, the Court considers that the applicant should or should not be granted the visa.
Despite the procedural order permitting them to do so, the applicants did not file an amended application. The grounds of review set out in the application are (without alteration):
Ground One:
The applicant formed the view that the member of the Tribunal did not make a fair and reasonable decision and did not take all the substantial facts and applicant’s statement and supporting evidence. In the decision statement and during the interview with the Tribunal, applicant believe that the Tribunal did not make understanding on the terms as “COOK” and “CHEF” being used interchangeably because there is no legal consideration behind the meaning in India.
Ground Two
The Tribunal made a jurisdictional error for not accepting my work experience as valid and ignored the fact that I have a positive assessment from VETASSES as a Chef and VETASSESS accepted my experience letter.
Ground Three
The Tribunal made a jurisdictional error on assessing if the PIC 4020 is satisfied by the applicant while not relying on the information given by the applicant on the circumstances in which the employer was interviewed based on the work experience letter.
Ground Four
The Tribunal did not take all relevant facts and evidence into account when arriving at its decision.
Ground Five
The Tribunal decision is so unreasonable that no reasonable Tribunal would have reached the decision similar decision.
Ground one: failure to make a fair and reasonable decision; failure to consider evidence and that the terms “cook” and “chef” are interchangeable in India
The Court is satisfied, having regard to the reasons of the Tribunal, as set out in detail above, that the Tribunal considered all of the evidence before it regarding the applicant’s required relevant work experience in determining whether it was satisfied that the applicant had at least two years’ work experience as a chef. The Tribunal considered:
(a)The contents of the work experience letter but which the Tribunal, as discussed below, found to be bogus and containing false or misleading information in a material particular;
(b)The statement given by Mr Ramesh Sehgal to the Department in which he described the applicant as having worked as an assistant cook and then a cook in his business and that, upon the work experience letter being shown to him, was unable to comment;
(c)The contents of Mr Ramesh Sehgal’s self-declaration which contradicted the statement he had given to the Department;
(d)The applicant’s contentions as to why the Department’s interview of Mr Ramesh Sehgal should not be relied upon including having regard to the medical documents provided;
(e)That the applicant did not provide other corroborative evidence of her duties at Mr Ramesh Sehgal’s business including that the second applicant did not give evidence at the Tribunal hearing of the applicant’s duties at his father’s business in circumstances where the second applicant was said to have earlier managed the business;
(f)That the applicant had not provided evidence such as income tax returns or pay slips (which Mr Ramesh Sehgal said he provided to his employees);
(g)The duties the applicant said she had been performing at the Klay Oven since the beginning of July 2021.
The Tribunal considered the distinction between the role and duties of chef and cook for the purposes of ANZSCO. On the evidence before it, the Tribunal concluded it was satisfied that the applicant was employed in Mr Ramesh Sehgal’s business as an assistant cook, cook or head cook from 2008 to 2019. The Tribunal found that the applicant did not perform the tasks of an assistant chef or chef for the period of her employment in Mr Ramesh Sehgal’s business.
As to the contention that the decision was not ‘fair and reasonable’, the Court agrees with the first respondent’s submission (first respondent’s written submission (“FRS”) [33] referring to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) CLR 611 at [13]; [133] and [135] per Gummow ACJ and Kiefel J ) that the test for legal unreasonableness is whether the decision is one that no rational or logical decision maker could have arrived at on the same evidence. It is not enough that the question of fact be one upon which reasonable minds might come to different conclusions (FRS [33] referring to CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [59] per McKerracher, Griffiths and Rangiah JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ).
The Tribunal was required to be satisfied that the applicant had worked in the nominated occupation of chef or a related field for at least two years. This required the Tribunal to consider all the evidence before it and come to a decision that was rational and logical having regard to that evidence.
The applicant relied upon the work experience letter as the evidence of her working as a chef in Mr Ramesh Sehgal’s business. The applicant did not provide any other corroborative evidence as to that experience. The Court considers that the Tribunal carefully summarised the evidence before it, considered the evidence in a reasoned and logical manner and came to a conclusion – having concluded that the work experience letter was a bogus document and contained false and misleading information in a material particular – that was reasonably open to it as to the applicant’s claimed work experience as a chef.
No jurisdictional error is established on ground one.
Ground two: not accepting the applicant’s work experience and the VetAssess skills assessment based upon the work experience letter
The Tribunal found that the work experience letter was a bogus document and contained information that was false and misleading in a material particular for the purposes of PIC 4020. Whether the Tribunal made a jurisdictional error in ‘not accepting’ the work experience letter is considered in the Court’s consideration of ground three.
As to the contention that the Tribunal made a jurisdictional error in ‘not accepting’ the applicant’s VetAssess skills assessment, the Tribunal did consider the VetAssess skills assessment ([61]-[66]). The Tribunal said that the applicant would have relied on the work experience letter to support the VetAssess assessment ([11]; [63]) which letter the Tribunal found was a bogus document and contained information that was false and misleading in a material particular ([58]). The Tribunal also found that the VetAssess assessment was not a formal qualification of the level required for the occupation of chef having regard to the relevant requirements in ANZSCO ([61]; [63]). The Court also observes that the VetAssess skills assessment, whilst assessing the applicant as having successfully completed a skills assessment for the nominated occupation of Chef (Commercial cookery) 351311, does not provide evidence as to whether the applicant has worked in the nominated occupation for at least two years. As noted above, the applicant relied upon the work experience letter as to the extent of her work experience.
Accordingly, it was not unreasonable, if that is the applicant’s contention, for the Tribunal not to be satisfied that the VetAssess skills assessment was evidence upon which it could be satisfied that the applicant had at least two years’ experience as a chef.
No jurisdictional error is established on ground two so far as it concerns the applicant’s contention with respect to the VetAssess skills assessment.
Ground three: error in assessing PIC 4020 in not considering the circumstances in which the employer was interviewed
The Court first returns to ground two. The applicant contends in ground two that the Tribunal erred in ‘not accepting’ the applicant’s work experience letter.
The Tribunal found that the work experience letter was a bogus document and contained information that was false and misleading in a material particular for the purposes of PIC 4020 ([58]).
PIC 4020(1) at the time of the Tribunal’s decision provided as follows:
(1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal during the review of a reviewable migration decision, 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 relevant principles applicable to the proper construction of PIC 4020 are usefully set out by Buchanan J (Allsop CJ and Rangiah J agreeing) in Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42; 220 FCR 169 (“Trivedi”) as follows:
(a)It is not necessary for a visa applicant to know or, or be directly involved in, any falsehood for PIC 4020 to be engaged (at [28]);
(b)PIC 4020 is not directed to innocent, unintended or accidental matters. However, different questions arise when information or documents provided in support of an application are revealed as false, in the purposely untrue sense of that term. An element of fraud or deception is necessary to attract the operation of PIC 4020 (at [32]-[33]). Buchanan J taking the example of a bogus document said that a counterfeit document is not produced accidentally and said that similarly to charge that a statement is false is not to say only that it is wrong. The accusation potentially imports some element of knowledge or intention on somebody’s part (at [33]);
(c)The purpose of PIC 4020 is to deal with purposely untrue material (at [42]);
(d)It is not necessary to show knowing complicity by a visa applicant, but it is necessary that the information or document have the necessary quality of purposeful falsity, whether or not the visa applicant can be shown to have knowledge of that fact ([43]; [49]-[50]).
The Tribunal identified the definition of bogus document in s 5 of the Act ([38]) and referred to the principles in Trivedi ([40]).
As Judge Lucev of this Court explained in Bari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1819 (at [18]), “no evidence” in PIC 4020(1) is a jurisdictional fact framed in the negative. A finding that there is “evidence” must lead a decision maker to the non-discretionary conclusion that PIC 4020(1) is not satisfied. The question of whether there is “evidence” is one of fact for the decision maker. What constitutes “evidence” for the purposes of PIC 4020(1) requires the Tribunal to consider whether there was material before it that was sufficiently probative to lead to the conclusion that information given in connection with a visa application was false or misleading in a material particular (Sharma v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1280 at [34]-37] per Judge Manousaridis referring to Talukder v Minister for Immigration and Citizenship [2009] FCA 916; (2009) 111 ALD 405 at [35]).
The Tribunal’s reasons for Decision disclose that it considered the following evidence as to the creation of the work experience letter:
(a)What Mr Ramesh Sehgal said to the Department officer when he was interviewed about his business; that he said the applicant worked as an assistant head cook prior to marrying his son; and that he was not able to comment on the work experience letter when it was shown to him ([15]);
(b)The applicant’s response to the invitation to comment including as to the preparation of the work experience letter ([19]);
(c)the applicant’s contentions (and those of her representative) as to why the Department’s interview of Mr Ramesh Sehgal should not be accepted ([22]-[25]; [31]-[32]) including the medical documents that were provided to support the contention that because of his health Mr Ramesh Sehgal was confused at the time of the interview ([32]);
(d)The self-declaration by Mr Ramesh Sehgal which contradicted his statement to the Department that the applicant worked as a cook; that he said he was aware of the contents, role and responsibilities, tasks and duties mentioned in the work experience letter which he described as genuine; and that he also said that the applicant worked as an assistant chef and was able to cook pasta and Manchurian ([21]);
(e)The applicant’s oral evidence at the hearing regarding how the work experience letter was prepared and the involvement of the second applicant in its preparation ([20]).
The Tribunal also considered that the applicant had not provided any corroborative evidence as to her duties in Mr Ramesh Sehgal’s business. The Tribunal also considered that the second applicant did not give evidence about the preparation of the work experience letter ([47]) or provide any corroborative evidence as to the applicant’s duties in Mr Ramesh Sehgal’s business which he managed for a period of time ([82]-[83]).
The Court is satisfied that the Tribunal did consider all the evidence before it. The Tribunal considered the applicant’s contention as to the circumstances in which Mr Ramesh Sehgal was interviewed by the Department and specifically had regard to the medical documents that were provided ([32]). Having considered and weighed all the evidence before it and the applicant’s submissions, the Tribunal concluded that the work experience letter was not authored by Mr Ramesh Sehgal but created for the applicant to provide her with experience as a chef. That conclusion was one which was open to the Tribunal on the evidence before it.
No jurisdictional error is established on ground two (as to the Tribunal ‘not accepting’ the work experience letter) or on ground three.
Ground four: failure to consider all relevant facts and evidence
In ground four, the applicant contends that the Tribunal failed to consider all the relevant facts and circumstances. The application does not particularise which relevant facts and circumstances the applicants say the Tribunal failed to consider. At the hearing, the Court asked the applicant to explain what facts and circumstances she submitted the Tribunal had failed to consider. The applicant told the Court that she was not referring to any facts and circumstances other than those which were raised by grounds one to three of the application.
Accordingly, for the reasons already given, no jurisdictional error is established on ground four.
Ground five: unreasonableness
Ground five is unparticularised. The applicants did not file an amended application or written submissions in which this ground might have been particularised. The applicant was unable to assist the Court at the hearing beyond what was raised by ground one of the application.
For the reasons already given, the Court is satisfied that the Tribunal’s decision was not legally unreasonable.
No jurisdictional error is established on ground five.
CONCLUSION
Accordingly, for the reasons given above, no jurisdictional error is established, and the application is dismissed.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Coulthard. Associate:
Dated: 17 March 2025
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