Sekhon v Minister for Immigration
[2014] FCCA 2834
•9 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SEKHON v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2834 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that its conclusion that the applicant failed to satisfy Public Interest Criterion 4020 was unsupported by evidence, by reason that it failed to consider the applicant’s claims and by reason that ostensibly it was biased. |
| Legislation: Migration Regulations 1994, regs.1.03, 2.26B, cls.485.214, 485.22, 485.221, 485.224 of sch.2, cl.4020 of sch.4 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Singh v Minister for Immigration & Citizenship [2012] FMCA 145 Batra v Minister for Immigration & Citizenship (2013) 212 FCR 84 Rafi v Minister for Immigration & Citizenship [2012] FMCA 1002 Young, Re Macryannis (2011) 124 ALD 28 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 SZRBA v Minister for Immigration & Border Protection [2014] FCAFC 81 Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223 Johnson v Johnson (2000) 201 CLR 488 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 Minister for Immigration & Citizenship v MZYHS (2011) 119 ALD 534 |
| Applicant: | SATBIR SINGH SEKHON |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2453 of 2012 |
| Judgment of: | Judge Cameron |
| Hearing date: | 29 August 2013 |
| Date of Last Submission: | 20 September 2013 |
| Delivered at: | Sydney and by videolink to Brisbane |
| Delivered on: | 9 December 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Steele |
| Solicitors for the Applicant: | Milner |
| Counsel for the First Respondent: | Mr T. Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 2453 of 2012
| SATBIR SINGH SEKHON |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of India, applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 4 December 2009. On 9 March 2012 that application was refused by a delegate of the first respondent (“Minister”) on the basis that the applicant did not satisfy the requirements of cl.485.224(a) of sch.2 to the Migration Regulations 1994 (“Regulations”) because he did not meet Public Interest Criterion 4020 (“PIC 4020”) found in sch.4 to the Regulations. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Relevant legislation
Time of application criteria
Clause 485.214 of sch.2 to the Regulations set out a criterion which had to be satisfied by an applicant for a subclass 485 visa at the time application for such a visa was made. The version of cl.485.214 which applied to the applicant was the one in force at the time he made his visa application: item 9 of sch.2 and item 1 of sch.6 to the Migration Legislation Amendment Regulation 2013 (No.1). That criterion provided:
The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.
Time of decision criteria
Clause 485.22 of sch.2 to the Regulations set out the criteria that had to be satisfied by an applicant for a subclass 485 visa at the time a decision was made on the visa application. It applied to the applicant’s application notwithstanding its subsequent repeal: item 9 of sch.2 and item 1 of sch.6 to the Migration Legislation Amendment Regulation 2013 (No.1). Clause 485.221 provided:
(1)The skills of the applicant for the applicant’s nominated skilled occupation have been assessed by the relevant assessing authority as suitable for that occupation.
(2)If the assessment mentioned in subclause (1) is made on the basis of a qualification obtained in Australia while the applicant was the holder of a student visa, the qualification was obtained as a result of studying a registered course.
Clause 485.224 required, as a time of decision criterion, that the applicant satisfy a number of public interest criteria including PIC 4020. PIC 4020 applied to the applicant at the time of the delegate and Tribunal’s decisions: reg.5 and item 4 of sch.3 to Migration Amendment Regulations 2011 (No.1). It relevantly provided:
4020
(1)There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:
(a)the application for the visa; or
(b)a visa that the applicant held in the period of 12 months before the application was made.
…
(5)In this clause:
information that is false or misleading in a material particular means information that is:
(a) false or misleading at the time it is given; and
(b)relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.
Definitions and specifications
For the purposes of the Regulations, reg.1.03 defines “bogus document” by reference to s.97 of the Act, which relevantly provides:
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.
“Relevant assessing authority” is defined in reg.1.03 of the Regulations as a person or body specified under reg.2.26B of the Regulations. Regulation 2.26B relevantly provides:
2.26B Relevant assessing authorities
(1)Subject to subregulation (1A), the Minister may, by an instrument in writing for this subregulation, specify a person or body as the relevant assessing authority for:
(a) a skilled occupation; and
(b) one or more countries;
for the purposes of an application for a skills assessment made by a resident of one of those countries.
(1A)The Minister must not make an instrument under subregulation (1) unless the person or body has been approved in writing as the relevant assessing authority for the occupation by:
(a) the Education Minister; or
(b) the Employment Minister.
By IMMI 11/068 (SLI F2011L02011), which commenced on 1 October 2011, the Minister specified Trades Recognition Australia (“TRA”) as the assessing authority relevant to the applicant’s claimed occupation of cook. However, it appears that at all earlier times relevant to the applicant’s application, TRA had not been validly specified: Singh v Minister for Immigration & Citizenship [2012] FMCA 145 at [65], Batra v Minister for Immigration & Citizenship (2013) 212 FCR 84 at 85-86 [7]-[12]; Rafi v Minister for Immigration & Citizenship [2012] FMCA 1002 at [2], [4] and [28]. That is to say, at no relevant time prior to 1 October 2011 had TRA been validly specified as a relevant assessing authority.
Background facts
Department
As noted earlier, the applicant applied for a subclass 485 visa on 4 December 2009. In that application he nominated the position of cook and provided evidence that on 3 December 2009 he had sought from TRA an assessment of his skills. On 19 January 2010 TRA notified the applicant that his application for a skills assessment was successful on the basis that he had satisfied the necessary training requirements including 900 hours of directly related work experience.
On 15 February 2011 officers of the Minister’s department (“Department”) visited the Maharaja Indian Restaurant (“Maharaja”), the restaurant where the applicant claimed to have completed his 900 hours of directly related work experience. During that visit, the owner of the restaurant, Mr Binning, gave the following evidence:
a)he had owned the restaurant for five years and he and his wife worked there seven days a week;
b)his wife was the only person who cooked at the restaurant and one or two other people helped with the waiting and cleaning duties in the kitchen. The duties of those individuals consisted mainly of washing dishes, cleaning the kitchen, chopping vegetables and meat and cooking rice. In total, three or four staff worked at the restaurant each night, including his wife and him;
c)five or six students were completing 900 hours of work experience at the restaurant at the time of the visit;
d)when shown photographs of individuals who might have worked at the restaurant, he marked the applicant as not working there. He stated that as he worked at the restaurant every night it was not possible that there were students working there he did not know about;
e)he had not prepared any work references as he did not write in English. The students would bring the references to him and he would sign them; and
f)one of the students who had worked for him had stolen the Maharaja’s ABN and one of its business stamps. He had reported the theft to the Department.
In a response to the Department’s invitation of 10 January 2012 to comment on the suspicion that he had supplied fraudulent documentation, the applicant provided statutory declarations from both himself and Mr Binning. Mr Binning declared in his statutory declaration dated 3 February 2012 that the applicant had spoken to him in response to the Department’s letter of 10 January 2012. He declared that his wife had recognised the applicant and confirmed that the applicant had worked at the restaurant between June 2008 and August 2009. He had not immediately been able to identify employees who had worked two or more years earlier as his mind had been preoccupied with the purchase of a pizza franchise. He declared that the applicant knew how to prepare and cook all the items on the restaurant’s menu. The applicant also provided several other documents including bank statements and an undated work reference from a different restaurant, the Tandoori Mahal Indian Restaurant (“Tandoori Mahal”), and pay slips received from that restaurant in 2011 and 2012.
On 9 March 2012, the delegate refused the applicant’s visa application as she was not satisfied that he had met the requirements of cl.485.224 because she found that he had provided a bogus document in support of his application and therefore did not satisfy PIC 4020.
Tribunal
On 28 March 2012 the applicant applied to the Tribunal for review of the delegate’s decision.
On 11 July 2012, the applicant’s representatives provided a submission, attaching statutory declarations from the applicant, Mr Binning and his wife, one of the Maharaja’s former employees, Harpreet Singh, and the owner of the restaurant where the applicant was employed at the time, the Tandoori Mahal. In her statutory declaration declared on 11 July 2012, Mrs Binning stated that as the head chef she had supervised students in the “raw cooking stage” which involved preparing ingredients and sauces and semi-cooking meat. In his statutory declaration Mr Singh said that he had worked at the Maharaja as a volunteer cook from January to December 2009 and then in paid employment from October 2010 to November 2011. He declared that although he had worked at the Maharaja, during the departmental investigation Mr Binning said he had not. Attached to his statutory declarations were his payslips from the Maharaja for part of October 2010, for June 2011 and for October 2011 and a PAYG payment summary for the 2010/2011 financial year. The applicant’s representatives submitted that Mr Binning had made a mistake in not recognising the applicant at the time of the Department’s site visit because it had been difficult to recognise him from the photograph, he had been preoccupied with his acquisition of a pizza franchise and Mrs Binning knew more as she was the cook in the kitchen.
The applicant and Mr Binning appeared before the Tribunal on 13 July 2012. At the hearing, the applicant gave the following evidence:
a)he worked at the Maharaja between June 2008 and August 2009. For the subsequent eight or nine months he did not have a job as it had been hard to get one. He commenced employment at Tandoori Mahal in 2011;
b)he had usually worked at the Maharaja three days per week, however, his roster varied according to the timetable of his classes. He usually started work at 3pm;
c)his duties at the Maharaja included cutting vegetables, making meat and gravies and cleaning. He was supervised by Mrs Binning. He did raw cooking for 70% of the cooking and the final mixing and portioning was done by the chef so that the taste was the same but he sometimes did the final mixing for the staff at the end of the night. He also cleaned, marinated and roasted chicken and made fillings for pastry. He described how he made lamb korma;
d)during the week there would be five or six staff working including Mr Binning and his wife, with four or five in the kitchen and two in the dining room. There would be one person on the counter, one waiting, one at the Tandoor oven, and two cooks helping the chefs. On weekends, there would be one or two more staff members. He gave the names of three people whom he said he had worked with at the restaurant;
e)Mr Binning did not recognise him because the Department’s visit was eighteen months after he had last worked at the Maharaja and he did not interact much with him as he worked in the kitchen. He stated that even when he went to see Mr Binning about why Mr Binning had said that had not worked at the restaurant, Mr Binning did not recognise him although Mrs Binning did;
f)staff at the Maharaja did not sign a roster or otherwise record when they arrived at work;
g)at the time of the Tribunal hearing, he was working 20-24 hours a week as a part-time cook at the Tandoori Mahal. He would not have secured that job had he not gained work experience;
h)he developed his reference letter by writing down his duties and what he had learnt in the kitchen and from discussions with Mrs Binning. He did not copy his reference from anyone else and did not give his reference to anyone; and
i)he calculated that he had worked at the Maharaja for 900 hours because he had spent one year working twenty hours a week and did not include the time he was away on holidays during the summer break.
The Tribunal also heard from Mr Binning, who said:
a)he had signed about ten references which were mostly the same because the duties were the same;
b)his wife helped with the references although she did not read and write English much;
c)the applicant worked at the restaurant three days a week between 2008 and 2009;
d)he did not recognise the applicant in the photographs provided to him during the Department’s site visit because there were thirty or forty photographs which were similar and the applicant had last worked eighteen months prior to the visit; and
e)at the time of the hearing, four staff worked at the restaurant on weekdays and six staff worked on weekends, including his wife.
At the hearing the applicant also provided his 11 August 2009 work reference letter signed by Mr Binning confirming that he had worked as a cook at the Maharaja from June 2008 to the date of the reference. It stated that he had undertaken a minimum 900 hours of cooking work directly related to his trade. It also listed his tasks and duties.
On 24 July 2012, the Tribunal sent a letter to the applicant pursuant to s.359A of the Act that set out the particulars of the Department’s site visit and inconsistencies between Mr and Mrs Binning’s oral and written evidence. The letter also set out the Tribunal’s concerns that the applicant had provided a TRA assessment which had been obtained on the basis of a false or misleading statement regarding his work experience.
In response to that letter, the applicant’s representatives resubmitted their submissions of 11 July 2012 and provided a further statutory declaration from the applicant dated 20 August 2012. In that statutory declaration, the applicant made the following claims:
a)Mr and Mrs Binning’s inconsistencies about recordkeeping of hours worked were due to a lack of English, miscommunication and a lack of understanding about processes;
b)Mr and Mrs Binning had not been required to keep a log book and none of the restaurant’s former employees could identify him because they did not all work together and some might have provided bogus documents. He stated that Mr Singh had confirmed that he, the applicant, had worked at the restaurant. Although Mr Binning had also not recognised Mr Singh, Mr Singh had provided pay slips proving that he had worked at the Maharaja;
c)he organised the work reference and did not get it from friends or a template. He checked the reference with Mr and Mrs Binning and it was signed by Mr Binning. As he knew Mr Binning struggled with written English, he helped him draft the letter to ensure that it included everything. He had not included any misleading or incorrect information;
d)his current employer confirmed he had asked for a reference from Mr Binning in July 2011 and employed him on the basis of that oral reference; and
e)he knew that he had worked 900 hours because he had worked twenty hours a week for fourteen months and was rarely sick. He also worked thirty hours a week during his school break.
On 24 July 2012 the Tribunal invited the applicant to appear before it a second time for the purpose of receiving evidence and submissions from him in relation to whether there were any compassionate or compelling circumstances which justified the granting of the visa sought. On 29 August 2012, the applicant appeared before the Tribunal again and stated that there were no such circumstances. He then repeated claims he had made in his earlier submissions.
The Tribunal’s decision and reasons
On 28 September 2012, the Tribunal affirmed the delegate’s finding that the applicant did not satisfy PIC 4020 and therefore did not meet the requirements of cl.485.224 of sch.2 to the Regulations.
The Tribunal did not accept that the applicant had worked at the Maharaja for 900 hours as a cook performing cook duties as claimed in the work reference provided to TRA, to the Department and to it. In this connection, the Tribunal made the following findings:
a)it had serious concerns about Mr Binning’s credibility as it considered his evidence at its hearing about who worked at the restaurant and their duties and hours to have been vague. It also did not accept that his vague and inconsistent evidence and his inability to recall the applicant or other employees came about because he did not spend much time in the kitchen. The Tribunal noted that Mr Binning had claimed to have worked in the restaurant every day and that the applicant had claimed to have worked in the restaurant regularly for over a year. The Tribunal noted that a business stamp had been stolen from the restaurant and did not accept that, in those circumstances, Mr Binning would not have identified or recalled the applicant at the departmental investigation interview. It found that Mr Binning had been unable to provide consistent and coherent information about the applicant and his duties, which it considered would have been reasonable to expect since the applicant had worked at the restaurant for over a year. The Tribunal also had serious concerns over the credibility of Mrs Binning’s evidence as it was vague and inconsistent on whether records were kept. As a result, it placed little weight on the statutory declarations provided by Mr and Mrs Binning or on Mr Binning’s evidence at the hearing;
b)it found that the work reference letter provided by the applicant was a pro forma document that had been copied by many, including the applicant in large parts, and was signed by Mr Binning with little regard to what duties the applicant had actually performed and did not accurately record what duties, if any, he had performed. While it accepted that some phrases in the applicant’s reference letter were different from the other reference letters, the Tribunal found that the greater part of it was identical. It also noted evidence given by other employees at separate hearings who stated that their references had been copied by others;
c)it found that the description of the applicant’s duties as cook detailed in his reference letter was inconsistent with the duties listed in Mrs Binning’s statutory declaration. The Tribunal found that the duties which the applicant claimed he had performed were exaggerated and embellished and were not an accurate record of the duties he had performed, if any;
d)it noted that no documentary evidence confirmed that the applicant had worked at the restaurant in 2008 and 2009. The Tribunal did not accept that the applicant had provided a truthful account or that Mr and Mrs Binning had provided truthful accounts of their recordkeeping or the hours worked by staff at their restaurant as no records were kept. In that connection, the Tribunal also considered that Mrs Binning’s evidence in this matter and in other hearings, that she kept “log book pieces of paper”, was inconsistent with evidence presented by the applicant and other applicants; and
e)although the TRA assessment had not been revoked, that was not evidence that the work reference letter was not false or misleading.
The Tribunal did not accept that the applicant undertook all the duties claimed in his work reference from the Maharaja and had serious doubts that he worked there as a volunteer cook at all. In this regard, the Tribunal made the following findings:
a)it found that the inconsistencies in Mr Binning’s evidence came about because he had not told the truth and did not know who had worked at the restaurant. It did not accept that those inconsistences were due to a lack of English, lack of understanding, miscommunication or confusion;
b)it noted that Mr Binning did not keep records and that although doing so was not required at the time, the lack of them meant that there was no documentary evidence verifying that the applicant worked at the restaurant or worked for the hours claimed;
c)it did not accept Mr Binning’s and the applicant’s explanation as to why Mr Binning did not recognise the applicant given the seriousness of the situation, the fact that the restaurant’s stamp had been stolen and the detail in which the Department had conducted its investigation into the restaurant; and
d)it also noted that the applicant was not identified as an employee at the hearings of the other applicants who claimed work experience at the Maharaja. The Tribunal accepted the applicant’s submission that those applicants might have submitted bogus documents or not recalled him and that that was corroborative evidence that he had worked at the restaurant but considered that it was not evidence that he worked there as a cook for 900 hours.
Given its previous findings, and because it did not accept that the applicant worked at the Maharaja or that he had worked there for at least 900 hours performing the duties listed in his reference, the Tribunal found that the work reference was a misleading statement. It found that the skills assessment from TRA was obtained because of a false or misleading statement, namely the work reference, and that the TRA assessment was consequently a bogus document for the purposes of s.97 of the Act. Further, it found that the applicant had provided the reference letter to TRA, to the Department and to it and had provided the TRA skills assessment to the Department. Therefore, it was not satisfied that there was no evidence before it that the applicant had given, or had caused to be given, to TRA or the Minister a bogus document in relation to the application for the visa. Accordingly, the applicant did not satisfy PIC 4020(1).
The Tribunal also found that there were no compelling or compassionate circumstances to justify the waiver of the requirements of PIC 4020(1) and in any event noted that the applicant had made no claim of that sort.
Proceedings in this Court
In his further amended application, the applicant alleged:
1.The Tribunal erred in law in finding that the Applicant did not meet the public interest criterion (PIC) 4020(1) of the Regulations thus did not satisfy cl.485.224 of the Regulations.
Particulars
(a)The Tribunal failed to consider whether Trades Recognition Australia was validly approved and specified (reg.2.26B(1) and (1A)) as the relevant assessing authority for the occupation of Cook, relevant to the Applicant’s visa application, at the time of its decision by legislative instrument IMMI12/068, which it was not.
(b)The Tribunal erred in finding that cl.485.221 was an operative provision in relation to the Applicant’s visa application.
(c)The Tribunal erred in its failure to consider whether Trades Recognition Australia was a relevant assessing authority at the time when the applicant gave or caused to be given to Trades Recognition Australia information.
(d)The Tribunal erred in construing that information given or caused to be given by the Applicant to Trades Recognition Australia was information given to a relevant assessing authority for the purposes of determining whether the applicant met PIC 4020(1).
(e)The Tribunal misconstrued or misapplied the definition of “information that is false or misleading in a material particular” as defined in PIC 4020(5). The Tribunal erred in concluding that the “employment experience” information provided by the Applicant to Trades recognition Australia was relevant to clause 485.224 of the Regulations.
2.The decision of the Second Respondent was affected by jurisdictional error because the Second Respondent in affirming the decision of the First Respondent’s delegate made on 9 March 2012, did not take into account or properly consider the individual circumstances of the Applicant giving rise to an apprehension of bias.
Particulars
(a)The Second Respondent failed on three occasions to refer correctly to the date of the work experience letter provided by the applicant to Trade Recognition Australia;
(b)The Second Respondent incorrectly cited 5 September 2009 as the date of the work experience letter, which date was in fact the date of the work experience letter provided by Mr Mr [sic] Guranditta Singh Bajwa, the applicant in proceeding SYG2373 of 2012 in this Honourable Court;
(c)The Second Respondent incorrectly cited 19 January 2010 as the date of the work experience letter, which date was in fact the date of the Trade Recognition Australia assessment;
(d)The Second Respondent incorrectly cited 26 February 2009 as the date of the work experience letter, which date was in fact the date of the work experience letter provided by Mr Sukhinder Pal Singh Nanre, the applicant in proceeding SYG2375 of 2012 in this Honourable Court;
(e)The Second Respondent failed to consider or to address concerns raised by the applicant’s adviser about photographic evidence allegedly used to try to identify the applicant.
3.The decision of the Second Respondent was affected by jurisdictional error because the Second Respondent, in making credibility findings against the Applicant, purportedly on the basis of evidence provided by the Applicant’s former employer, failed to consider or to address concerns raised by the Applicant’s adviser relating to photographic evidence allegedly used by the former employer to try to identify the Applicant.
Ground 1
Submissions
The applicant submitted that TRA had not been a valid assessing authority at the time of his visa application or when it provided his skills assessment on 19 January 2010. His case was that, in the circumstances, TRA could not satisfy or even engage the operation of those criteria for the grant of a subclass 485 visa which required him, at the time of the application, to have applied to a relevant assessing authority for a skills assessment or which required, at the time of decision, that a relevant assessing authority have assessed his vocational skills. Because of this, he submitted, no document provided to TRA could be a bogus document within the meaning of s.97 of the Act and its assessment of his skills was not a valid assessment for the purposes of the Act and the Regulations.
In relation to the latter point, the applicant submitted that even though the TRA assessment had been provided to the Minister, it had not been provided “in relation to the application for the visa” and so did not engage PIC 4020 because, not being a valid assessment, it had no relevance to the application. He argued that a document which the Minister could not rely on when deciding the visa application could not be a document provided “in relation to” that application because it had no relevant or appropriate association with the application: Young, Re Macryannis (2011) 124 ALD 28 at 34 [24]-[25].
The Minister submitted that the applicant’s visa application made it obvious that information concerning his TRA skills assessment had been part of his visa application.He submitted that decisions subsequent to Singh’s case had made it clear that, when applying PIC 4020, the Tribunal was entitled to have regard to whether an applicant had in fact submitted a bogus document in the form of a bogus skills assessment, even in circumstances where TRA was not validly appointed at the time of the assessment. The Minister also submitted that as a time of decision criterion, cl.485.224 was applicable to the applicant when the Tribunal made its decision on 28 September 2012 because by then TRA had been specified in IMMI 11/068 as a relevant assessing authority for applications made before 1 July 2010.
Consideration
The applicant’s submission that the reference letter could not be a bogus document within the meaning of s.97 of the Act ignored the fact that the Tribunal made no finding that the reference was a bogus document. What it found was that the reference letter’s allegation that the applicant had worked as a cook for more than 900 hours was a false or misleading statement which caused the TRA assessment to be a bogus document. I note in this connection that the Tribunal’s finding at para.83 of its reasons, namely that it was not satisfied that there was no evidence before it that the applicant had given or caused to be given to TRA or the Minister a bogus document in relation to his application for a visa, was not a finding that the reference letter was a bogus document or that a bogus document had been provided to TRA.
The finding that the TRA skills assessment was a bogus document was one open to the Tribunal notwithstanding that that assessment was not a valid assessment for the purposes of cl.485.214 or cl.485.221. That the assessment was of no legal effect for its specific purposes was immaterial to whether or not it was a bogus document: Batra at 95 [60]. Public Interest Criterion 4020 is concerned with why an impugned document, or information, has been provided to the entities to which it refers, not with the purpose to which such material might be put. It refers to the situation where:
… the applicant has given, or caused to be given, … 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.
Although it could have been drawn more clearly, it is apparent that PIC 4020 is concerned with honesty in the application process, rather than with the legal efficacy of documents which may be based on a bogus document or on false or misleading information: Batra at 95 [58].
Consequently, whether or not TRA had become a relevant assessing authority by the time the Tribunal made its decision is not of any particular significance. The relevant question was whether a bogus document had been provided to the Minister’s department (and hence to the Minister) which was the material finding of the Tribunal, not the standing of the author of the document. Further, should I be wrong in my understanding of para.83 of the Tribunal’s reasons and they are properly understood to imply that the reference letter was a bogus document, whatever error might be manifested by or associated with such reasoning is of no significance as the finding that a bogus document had been given to the Minister provided an independent basis for the Tribunal’s decision.
Ground 2
Submissions
The applicant submitted that the Tribunal had not turned its mind to the individual circumstances of his case and had adopted a generic approach which was inflexible and mechanical. In that connection he referred to the fact that the Tribunal member who decided his case had also decided two other similar cases in which the applicants, Mr Nanre and Mr Bajwa, had also been employed at the Maharaja and had originally not been recalled by Mr Binning, only to be remembered by him later. He submitted that:
a)paras.71 to 75 of the Tribunal’s decision had distinct similarities, and in some cases identical language and “identical bias”, to paragraphs from its reasons for decision in Mr Nanre and Mr Bajwa’s cases;
b)the Tribunal had failed to consider or address the concern which his representatives had raised in their submissions of 11 July 2012, namely that the photograph of him shown to Mr Binning had been out-dated and its likeness to him had been limited. The applicant submitted that the Tribunal had failed to consider the difficulties associated with the Department’s use of a photo-board which had included his photograph with photographs of several other men, had failed to analyse whether he looked like the photograph and had failed to analyse whether there was any scope for confusion. He argued that this behaviour indicated that the Tribunal had not turned its mind to his particular facts but had decided his application on the basis of a generic view of applications such as his;
c)the Tribunal had correctly specified the date of his reference letter from Mr Binning on only one of four occasions, at para.29 of its decision. At para.30 the Tribunal referred to the date of Mr Bajwa’s reference letter, at para.70 the Tribunal wrongly stated that the date of the reference letter was 19 January 2010, which was in fact the date of the TRA assessment letter, and at para.82 the Tribunal cited the date of Mr Nanre’s reference letter. The applicant submitted that these were not random errors and that it was apparent that the Tribunal had not correctly turned its mind to his particular facts; and
d)the evidence suggested that the Tribunal had reached a concluded view on the integrity of Mr and Mrs Binning and a global view of their credibility. He submitted that in those circumstances, and in circumstances where the Tribunal had failed to consider the photographic evidence properly, a reasonable lay observer might consider that the Tribunal had prejudged his case.
The Minister submitted that:
a)Mr Nanre and Mr Bajwa had advanced claims similar to those of the applicant because their circumstances were similar and all three cases turned on Mr Binning’s credibility. He submitted that the similarities in the Tribunal’s decisions in the three cases arose naturally from the similarities in the facts and the claims involved;
b)the Tribunal had considered and addressed (at paras.28, 46, 71 and 75) the applicant’s representatives’ explanation as to why Mr Binning might not have been able to identify the applicant. He submitted that the Tribunal had found Mr Binning’s evidence was not credible for reasons independent of issues concerning the identification of the applicant’s photograph and had not accepted his explanation for failing to identify the applicant’s photograph; and
c)the Tribunal’s typographical errors in relation to the date of the applicant’s alleged work reference letter did not demonstrate jurisdictional error. He submitted that they were at most factual errors which could not have made a difference to the Tribunal’s decision given that it correctly summarised the contents of the applicant’s alleged work reference letter. The Minister submitted that, without more, the Tribunal’s apparent confusion over the date of the applicant’s work reference letter could not establish that the Tribunal misunderstood any of the facts essential to the applicant’s claims.He submitted that the applicant had not identified any substantial, clearly articulated argument relying upon established facts which the Tribunal had not addressed: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1.
Consideration
There is no doubt that the Tribunal’s reasons for decision in the applicant’s case bore considerable similarities to the reasons for its decisions in Messrs Nanre and Bajwa’s cases. However, as the applicant’s arguments recognised, where cases are similar, similarities in reasons for decision are not demonstrative of error unless they betoken a failure to consider each case on its merits or a closed mind: SZRBA v Minister for Immigration & Border Protection [2014] FCAFC 81; Minister for Immigration & Citizenship v SZQHH (2012) 200 FCR 223.
I am not persuaded that either situation applied in this case. The similarities which the reasons for decision in this case bore to the reasons for decision in Messrs Nanre and Bajwa’s cases reflected the similarities in the evidence before the Tribunal in those cases. Indeed some evidence was common to all of them. Further, the steps followed by the Tribunal and the course which each of the three reviews took were sufficiently similar that, in each case, the structure of the Tribunal’s reasons and the accounts of its procedural steps were, as set out in its reasons, similar in each case. That is unremarkable.
For the applicant to make out his allegation of apprehended bias it was necessary for him to demonstrate that a fair minded lay observer who was properly informed as to the nature of the proceeding, the matters in issue and the conduct said to give rise to an apprehension of bias might reasonably apprehend the possibility that the Reviewer was not bringing an impartial and unprejudiced mind to the resolution of the question he was required to decide: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425. However, use of the same words in different decisions to describe the same thing does not, without more, give rise to a reasonable apprehension that the Tribunal did not bring a fair and impartial mind to the decision in question: SZQHH at 235-236 [38]-[39].
Factual errors
The fact that, in the applicant’s decision, the Tribunal cited details which were incorrect or belonged in one or other of the other two decisions is insufficient to evidence a failure to consider his case on its merits. A simple error of detail which is of no significance to the Tribunal’s reasoning, as occurred in para.70 of its decision record when it confused the date of the reference letter with the date of the TRA assessment, is an error of that sort. So too is the Tribunal’s mistake in para.30 of its reasons where it cited the date of Mr Bajwa’s reference letter instead of the date of the applicant’s reference. The mistake in para.82 of the Tribunal’s reasons, where it cited the date of Mr Nanre’s reference letter instead of the date of the applicant’s, appears to reflect the fact that paras.79-86 of the applicant’s decision record were direct copies of paras.84-92 of Mr Nanre’s decision record which in turn also appeared in very similar form at the end of Mr Bajwa’s decision record. However, these were conclusory paragraphs equally applicable to each case and reflecting reasoning expressed earlier in the relevant decision record. I conclude that the error in question was no more than a mistake caused by inattentive drafting and was not indicative of a lack of attention to the substantive issues and facts raised by the applicant.
I am also of the view that the applicant’s focus on these three small matters tended to distract attention from the remainder of the Tribunal’s decision which, despite its similarities with the decisions in Messrs Nanre and Bajwa’s cases on matters where they had common features, was plainly a set of reasons which addressed the claims and evidence raised in the applicant’s application for review. Examples of this proper approach were found in other passages which reflected the cases’ common features but where the details in the applicant’s decision record referred to the facts of his case rather than to those of the other two applicants.
For the same reasons, the simple factual errors identified by the applicant would not give rise to a reasonable apprehension of bias on the part of the Tribunal.
Copying from other decisions
Another focus of the applicant’s allegation concerned paras.71-75 of the Tribunal’s reasons for decision. Significantly, the applicant did not suggest that paras.71-75 misstated the evidence available to the Tribunal in this matter or that the equivalent passages in the other two cases misstated the evidence available to the Tribunal in those matters. The applicant’s complaint was that the Tribunal used the same words to describe the same things.
Because a decision-maker can be expected to apply the law and policies in a consistent way, the mere fact that the Tribunal expressed in more than one decision record the same view on the same or similar subjects does not, of itself, support a conclusion that independent consideration was not given to those subjects. It simply reflects a consistent approach to the same material. In those circumstances, use of the same words to express the same conclusion is convenient, understandable and unremarkable.
Paragraph 71 is summarised above at [23(a)] and is essentially the same as paragraphs in the decisions in Messrs Nanre and Bajwa’s cases. The evidence of and concerning Mr and Mrs Binning had aspects which were common to all matters, such as their interaction with the Department and its investigation of purported workers at their restaurant. To the extent that other aspects of their accounts were individual to the different cases, that circumstance was of no relevant significance because the Tribunal found the couple to be vague, inconsistent and implausible in their accounts generally. The deficiencies in the evidence of Mr and Mrs Binning were common to all three matters and so it is unsurprising that the Tribunal used a form of words in para.71 which applied just as well to all three cases.
Paragraph 72 was, contrary to the applicant’s allegation, different in significant respects from passages in the other two decisions which dealt with similar matters.
Again, although para.73 was similar to passages from the other two decisions, it was sufficiently different from them to evidence an independent consideration of the applicant’s review.
Paragraph 74 was very similar to passages in the other two decision records. In each case the relevant paragraph dealt with the fact that there was no documentary support for Mr and Mrs Binning’s evidence and that their evidence was inconsistent. Again, no error arises from the same or similar words being used to describe the same thing.
Passages in para.75 were also similar to passages in the other two decisions dealing with the same material. However, para.75 as a whole was sufficiently different from its equivalents in the other two decisions to indicate that the applicant’s claims were given individual consideration.
Finally, because the Tribunal’s use in the applicant’s case of passages which it also used in the other two cases was clearly discriminating, its use of them in the applicant’s case would not lead an observer reasonably to apprehend the possibility that its mind was not open to persuasion.
Failure to consider submission concerning the photograph shown to Mr Binning
The applicant submitted that the Tribunal failed to consider the difficulties associated with the use of the photo-board and failed to analyse whether he looked like the photograph of him on the board and whether there was any scope for confusion. However, at para.28 of its reasons the Tribunal specifically referred to that part of the applicant’s representatives’ submission to the Tribunal dated 11 July 2012 which dealt with Mr Binning’s inability to identify him from his photograph on the photo-board and at para.75 of its reasons it also specifically stated that it had considered those submissions before going on to discuss Mr Binning’s failure to identify the applicant when shown his photograph.
The applicant’s representatives did not submit to the Tribunal that it should analyse whether he looked like the photograph and whether there was any scope for confusion and the Tribunal had no independent duty to do so. There is no basis to conclude that the Tribunal’s consideration of the submission in question was deficient and no error is demonstrated by the fact that the Tribunal did not do something it was not required to do.
Ground 3
Submissions
The applicant submitted that in circumstances where the Tribunal had made no reference to the difficulties posed by the photographic evidence and where it appeared to not have known the true facts of his circumstances, it was difficult to accept that the Tribunal had given proper, genuine and realistic consideration to his evidence. He submitted that the Tribunal had been aware that Mr Binning’s initial evidence, which he later retracted but which the Tribunal accepted, had been based on the photo-board. He submitted that the Tribunal’s failure to refer to the photo-board demonstrated that the Tribunal had not turned its mind to the reliability of the evidence.
The Minister submitted that the requirement that the Tribunal give proper, genuine and realistic consideration to the evidence could not found a jurisdictional error simply because the Tribunal had made an allegedly wrong finding of fact or given allegedly insufficient weight to some evidence: Minister for Immigration & Citizenship v MZYHS (2011) 119 ALD 534 at 543-546 [36]-[43] He submitted that the applicant’s submissions on the weight the Tribunal should have given to Mr Binning’s evidence also did not establish jurisdictional error.
Consideration
The Tribunal’s obligation to give proper, genuine and realistic consideration to matters is an obligation to give substantive rather than no or merely formal consideration to the matters raised by an applicant. For the reasons given in relation to the second ground of the amended application I find that the Tribunal did give substantive consideration to the submissions which the applicant’s representatives made in relation to the photograph of him shown to Mr Binning. In any event, in substance the applicant’s argument was that the Tribunal should have come to a different conclusion as to why Mr Binning failed to identify him. That was an invitation to undertake impermissible merits review.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 9 December 2014
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