Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 2146

FEDERAL CIRCUIT COURT OF AUSTRALIA

Sharma v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2146

File number(s):	SYG 1924 of 2017
Judgment of:	JUDGE STREET
Date of judgment:	17 June 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal – cancellation of a Subclass 175 Skilled Independent Visa – where the Department provided notice of cancellation – where inconsistencies were identified in a s 359A of the Migration Act 1958 (Cth) letter – whether the Tribunal failed to comply with s 359A – whether the Tribunal failed to have a genuine intellectual engagement with the applicant’s submissions – whether the adverse findings were open to the Tribunal – no jurisdictional error – application dismissed
Legislation:	Migration Act1958 (Cth) ss 101(b), 103, 107, 109, 359A, 476
Number of paragraphs:	35
Date of hearing:	17 June 2021
Place:	Sydney
Solicitor for the applicant:	In person
Solicitor for the respondent:	Mr S Valliappan, Minter Ellison

ORDERS

SYG 1924 of 2017

BETWEEN:

SUSHIL KUMAR SHARMA

First Applicant

RINKU SHARMA

Second Applicant

SHAKSHAM SHARMA (and another named in the Schedule)

Third Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	17 JUNE 2021

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The first and second applicants pay the first respondent’s costs fixed in the amount of $5,600.00.

REASONS FOR JUDGMENT

JUDGE STREET:

1. This is an application for a constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 25 May 2017, affirming the decision of a delegate of the first respondent (“the delegate”) to cancel the first applicant’s Subclass 175 Skilled Independent Visa (“the Visa”).

2. The second applicant is the first applicant’s spouse, and the third and fourth applicants are children in respect of whom a litigation guardian order was made on 13 July 2017. 

3. The applicants are citizens of Nepal and applied for the Visa on 30 June 2009.

4. In support of the application for the Visa, the first applicant provided information in respect of his alleged employment as a cook. That included information that the first applicant had been employed full time at a particular restaurant from 2003 to 2009. 

5. On 12 August 2016, the first applicant was sent a notice of intention to cancel the Visa on the basis of providing information that was incorrect or misleading. That notice expressly referred to the first applicant’s information provided in support of the Visa application, that he had been employed as a cook at the Momotarou Restaurant from 1 February 2003 to 29 June 2009. The first applicant also provided a reference from Mr Puran Chaudhary, the owner of the Momotarou Restaurant, dated 7 March 2009, alleging that he worked full time as a cook for the period 1 February 2007 to 7 March 2009.

6. The notice also pointed out that there was information that the first applicant had been employed as a permanent deputy sales manager at Asian Pharmaceuticals from 5 March 2005 to 10 March 2010.

7. The delegate found that there had been a valid notice issued, and that the grounds for cancellation had been made out. On 8 September 2016, the delegate cancelled the first applicant’s Visa.

   DECISION BY THE TRIBUNAL

8. The first applicant applied for a review to the Tribunal, and was invited to attend a hearing on 17 February 2017. The first applicant appeared on that date before the Tribunal to give evidence and present arguments.

9. Following the hearing, the first applicant was sent a letter pursuant to s 359A of the Act, dated 16 March 2017. That letter provided clear particulars identifying the inconsistency in respect of Mr Chaudhary’s alleged evidence about the applicant’s full time employment and other evidence before the Tribunal.

10. The first applicant requested an extension of time to respond to that information, and was given an extension of time to respond to that information by 18 April 2017. The applicant did provide further responses by that date, which the Tribunal took into account.

11. In its reasons, the Tribunal identified the background to the application for review. The Tribunal identified the statutory provisions in respect of the power of cancellation under s 109 of the Act, and the notice under s 107 of the Act. The Tribunal found that there was non-compliance as specified in the notice under s 107 of the Act. 

12. Given the provision by the first applicant of the information from the restaurant owner Mr Chaudhary, purporting to allege he was a full time cook from 1 February 2003 to 7 March 2009, the Tribunal identified the evidence that was adduced in relation to the issue of the non-compliance with a s 107 notice, and identified the evidence given by Mr Chaudhary and why the Tribunal found it to be unreliable.

13. The Tribunal found the first applicant did not comply with s 101(b) of the Act, as described in the notice, in respect of the provision of the misleading information as to the first applicant’s full time employment at the particular restaurant. The Tribunal identified the evidence as to the applicant having worked as a medical sales officer from 2006 to 2012 with Asia Pharmaceuticals. 

14. The Tribunal also referred to the evidence given by Mrs Sharma. The Tribunal took into account the employment of the first applicant with Asian Pharmaceuticals, and its inconsistency with the first applicant’s claims as to his employment as a cook with the Momotarou Restaurant. The Tribunal referred to the different information that had been provided about the first applicant’s alleged work at that restaurant. The Tribunal made express reference to Mr Chaudhary’s oral and affidavit evidence, purporting to allege that the first applicant worked full time as a cook from 2003 to 2014. 

15. The Tribunal referred to the s 359A letter, sent to the first applicant after the hearing in respect of the adverse information. The Tribunal preferred the information provided by others than that of Mr Chaudhary as to the applicant’s employment, and found Mr Chaudhary to be an unreliable witness, having changed his evidence.

16. The Tribunal also referred to the inconsistency of the evidence that had been advanced, suggesting that the first applicant did not work as a cook for the Momotarou Restaurant as claimed. The Tribunal referred to the submissions advanced on behalf of the first applicant; that there was an alleged minor inconsistency in relation to shift times. The Tribunal made reference to the evidence of Mr Chaudhary as to the shift times that was inconsistent with the first applicant’s claims, and those advanced by Mrs Sharma.

17. The Tribunal was not satisfied that the first applicant had adequately explained the inconsistencies as to shift times and did not accept that these were trivial or minor inconsistencies. The Tribunal found that the inconsistencies from Mrs Sharma arose because the facts asserted were not true. The Tribunal referred to the documentary evidence, and found that the first applicant did not work in a position as a cook at all for the Momotarou Restaurant from February 2003 to June 2009. 

18. The Tribunal found that the first applicant gave incorrect answers on the Visa application form in relation to his employment, as set out in the notice. The Tribunal found that there was a non-compliance, in contravention of s 101(b) of the Act, in the way described in the s 107 notice. The Tribunal also found that there was a non-compliance under s 103 of the Act, in the way described in the notice in respect of the false document provided by Mr Chaudhary, dated 7 March 2009.

19. The Tribunal then turned to the issue of whether or not the Visa should be cancelled. The Tribunal referred to the evidence that had been advanced and found that, in all the circumstances, the Visa should be cancelled. Consequently, the Tribunal affirmed the decision of the delegate under review. 

    BEFORE THE COURT

20. These proceedings were commenced on 20 June 2017. 

21. On 13 July 2017, a Registrar made orders giving the applicants an opportunity to file an amended application, affidavit evidence and submissions. No such documents were filed.  These proceedings were apparently then transferred into the National Migration docket, and were not transferred to this Court until May 2021. 

22. At the commencement of the hearing, the Court explained to the applicants the nature of the hearing, and the first applicant confirmed that he understood the explanation given by the Court. 

23. The first applicant asserted that the Tribunal had not referred to Mr Chaudhary’s evidence. That assertion is incorrect. It is clear from the Tribunal’s reasons that it had a genuine intellectual engagement with the applicant’s claims in evidence. Nothing said by the first applicant identified any jurisdictional error. 

    THE GROUNDS

24. The ground in the application are as follows:

    Ground 1

    1.The Tribunal made jurisdictional error in that it did not provide "clear particulars" as required under section 359 A of the Migration Act.

    Particulars

    The Tribunal in para 22 of its order states that “The department written record of the conversation however was, in the Tribunal’s view, detailed and comprehensive. They included details of telephone number called, the time called, the case officer’s introduction and purpose of the call, who the case officer spoke to, the questions asked by the case officer and the response received which the Tribunal is satisfied were recorded verbatim. The Tribunal considers that the evidence obtained by the officer is accurate and reliable and gives weight to it in its considerations”.

    In a matter related to disclosure under Sec 424A (similar to 359A) Flick J in SZNKO Vs Minister of Immigration & Citizenship & Anor (2010) 184 FCR 505; [2010] FCA 297 at [23] states to the effect that information “cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must also be disclosed must necessarily depend upon the facts and circumstances of each individual case”. It was pointed out that his Honour suggested that s.424A required the disclosure "of so much as to ensure that the opportunity to 'comment ... or respond. ..' is meaningful" (at [23]) and it is submitted that in this case s.359A required disclosure of all the material relating to the evidence relied by the department like the details of telephone number called, the time called, the case introduction, purpose of the call, who the case officer spoke to, the questions asked and the response. As considerable weight has been placed on this evidence full particulars are required to be furnished. The Tribunal just provided a gist of what it considered relevant. The applicant’s representative was asked by the Tribunal on 27^th March 2017 to delete all copies of the Department file that was in his and the applicant’s possession. The new version was provided to the representative only on 9^th May 2017. The time frame to comment/reply on 359A adverse information was set initially as 31^st March 2017 and subsequently when an extension was requested it was set as 18^th April 2017. Hence it is submitted that till the last date fixed for reply to comment on the adverse information, no clear and sufficient particulars regarding the context in which the information arose were made available to the applicant so that he can effectively refute the allegations.

    Ground 2

    2.The Tribunal failed to provide adequate opportunity and adopt a fair procedure for the applicant to refute the adverse information provided under Sec 359A.

    Particulars

    The applicant’s representative was asked to delete all copies of the Department file on 27^th March 2017 (para 8 of the order). The initial deadline to reply to 359A information was set as 31^st March 2017. The applicant’s representative requested for additional time till 21^st April 2017 on the assumption that the new file containing the departmental records will be provided before that date. However the Tribunal extended the date for reply only up to 18^th April 2017 and till that date no copy of the department file was provided. The new copy of the department file was provided only on 9^th May 2017 (para 12 of the order). It is submitted that compelling the applicant to respond even before the material relied by the Tribunal is made available to the applicant amounts to denial of fair procedure and no adequate opportunity was provided to respond to the adverse information.

    Ground 3

    3.The Tribunal made jurisdictional error in that it was unreasonable in making adverse credibility findings recklessly without a sound basis by not considering all the information on record available at the time of review before it.

    Particulars

    In para 62 the Tribunal states that “The Tribunal considers that the evidence obtained by the officer is accurate and reliable and gives weight to it in its considerations”. This includes the evidence of Mr Chaudhary. The Tribunal further in para 80 provides a finding that the experience certificate issued is not a bogus document. In para 70 Mr Chaudhary evidence on oath before the Tribunal was considered as unreliable but the same person’s statement (not on aoth /not subject to examination 1) before an immigration officer was considered “accurate and reliable”. This reveals that the Tribunal has adopted a questionable basis in discrediting the evidence before it.

    GROUND 1

25. In relation to Ground 1, the s 359A letter, in accordance with the requirements of the Act, provided clear particulars so that the first applicant could meaningfully respond. In the circumstances of this case, the Tribunal was not required to provide documentary material to the applicant in addition to the s 359A letter. The s 359A letter identified the adverse information, and complied with the statutory requirements to give the applicant a proper opportunity to respond to the same.

26. The first applicant requested, and was granted, an extension of time to provide information in reply to the s 359A letter. The Tribunal expressly took into account the information that was provided after that date and prior to the decision of the Tribunal. The Court does not accept that there was any non-compliance with the requirements of s 359A of the Act.

27. No jurisdictional error as alleged in Ground 1 is made out. 

    GROUND 2

28. For the reasons already given, there is no substance in the contention that the first applicant was not given a fair opportunity to respond to the s 359A letter. The applicant had in the s359A letter all the information that was required by the statutory provisions and was in a position to meaningfully respond.

29. The first applicant was given an extension of time, and the information provided by the first applicant after that date was taken into account. This was an adequate and reasonable further opportunity for the applicant to respond. There was no unfair procedure adopted.

30. No jurisdictional error is made out by Ground 2. 

    GROUND 3

31. In relation to Ground 3, the adverse findings by the Tribunal in respect of the evidence of Mr Chaudhary were clearly open to it, for the reasons given by the Tribunal. The first applicant’s disagreement with the adverse findings does not identify any jurisdictional error. The inconsistency between the assertions advanced by Mr Chaudhary as to the full time employment, as well as the shift times, was obvious and a logical, rational and reasonable basis for the adverse credibility findings 

32. The adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification. This is because of the inconsistencies to which the Court has referred which were not minor or trifling. The Tribunal’s reasons reflect a genuine intellectual engagement with the whole of the claims in evidence in respect of the credibility issue concerning Mr Chaudhary. 

33. Further, insofar as this Ground takes issue with the exercise of the discretion by the Tribunal in the cancellation, the first applicant had maintained that the misleading or false record was correct. The outcome in these circumstances is clearly one to which a reasonable decision maker could come. The record of a conversation by the officer with Mr Chaudhary that the applicant was not a regular cook accepted by the Tribunal in paragraph 62 identifies conflicting evidence by Mr Chaudhary that was a rational and logical basis for the adverse credit finding. The applicant misunderstands the findings in paragraph 80 as to the provision of a bogus document by the false or misleading reference dated 7 March 2009. The adverse finding as to non-compliance with s103 in the way described in the notice was rational and logical. For the reasons already given the adverse credibility finding as to Mr Chaudhary’s evidence in paragraph 70 was open on the material before the Tribunal and legally reasonable. The Tribunal’s reasons in relation to the cancellation reflect the consideration of the whole of the claims and evidence. There is no information that has been identified that the Tribunal did not consider.

34. No jurisdictional error as alleged in Ground 3 is made out.

35. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 17 June 2021 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Dated:       22 September 2021

SCHEDULE OF PARTIES

SYG 1924 of 2017
Applicants
Fourth Applicant:	MUSKAN SHARMA