Shrestha v Minister for Home Affairs
[2019] FCCA 1782
•26 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHRESTHA & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 1782 |
| Catchwords: MIGRATION – Judicial review – Administrative Appeals Tribunal – whether applicant failed to satisfy PIC 4020 because evidence that applicant gave bogus document – where adverse credibility finding about key witness was not open – application allowed. |
| Legislation: Migration Act 1958 (Cth) Migration Regulations 1994 (Cth) Federal Court Rules 2011 (Cth) |
| Cases cited: SZYBR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 |
| First Applicant: | PRABEG SHRESTHA |
| Second Applicant: | ALINA SHRESTHA |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | DNG 12 of 2018 |
| Judgment of: | Judge Young |
| Hearing date: | 12 February 2019 |
| Date of Last Submission: | 12 February 2019 |
| Delivered at: | Darwin |
| Delivered on: | 26 June 2019 |
REPRESENTATION
| Counsel for the First Applicant: | Ms Nguyen |
| Solicitors for the First Applicant: | Ward Keller |
| Counsel for the Second Applicant: | Ms Nguyen |
| Solicitors for the Second Applicant: | Ward Keller |
| Counsel for the First Respondent: | Ms Clark |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | Ms Clark |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 13 March 2018.
A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 28 February 2017 according to law.
That the First Respondent pay the Applicant’s costs in the sum of $2,986.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DARWIN |
DNG 12 of 2018
| PRABEG SHRESTHA |
First Applicant
| ALINA SHRESTHA |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRAIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 13 March 2018 affirming a decision of the Minister's delegate made on 28 February 2017 to refuse the applicants a Skilled (Provisional)(Class VC) visa.
The applicants are husband and wife but it appears to be common ground that the wife’s application is dependent on the success or otherwise of her husband’s application. References to the “applicant” below are references to the male applicant, Mr Prabeg Shrestha.
The application was refused because the Tribunal was not satisfied that the applicant met the requirements of cl. 487.228 of Schedule 2 of the Migration Regulations which required the applicant to satisfy Public Interest Criterion (“PIC”) 4020. PIC 4020 relevantly requires that there be no evidence that the applicant has given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority or Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application.
The Tribunal did not accept that the applicant’s claimed employment history in Nepal was true. Specifically, the Tribunal did not accept that the applicant had, as he claimed, worked in Nepal as a motor mechanic at a business called “Auto Goods” prior to his arrival in Australia in 2008.
The applicant first arrived in Australia in 2008. He remained on various temporary visas. He studied for certificates and diplomas in Automotive Technology and Mechanical Technology. In 2012 he applied for a skilled migration visa, listing his occupation as “Motor Mechanic General”. According to the applicant, and which was not challenged by the Minister, that application was refused by a delegate on the basis that the applicant did not satisfy a points test. The applicant said he successfully sought a review of that decision and, on 23 November 2016, the Tribunal (“the first Tribunal”) made a decision remitting the matter to the delegate for reconsideration.
During the reconsideration the delegate received information from a telephone interview or interviews with an employee and/or owner of Auto Goods that led the delegate to the conclusion that there was evidence that the applicant had provided a bogus document and so did not satisfy PIC 4020. The application was refused. The applicant sought a review by the Tribunal which was unsuccessful.
The Tribunal’s reasons for its decision of 13 March 2018 rejecting the application identify a number of separate but related grounds for disbelieving the applicant’s claims to have been employed by Auto Goods.
The applicant completed a bachelor’s degree in Business in Nepal between January 2005 and January 2008. He said he also worked full-time as an assistant auto mechanic at Auto Goods from 2003 to 2008. The applicant said that, in addition, he worked part-time as a finance officer for a rehabilitation centre from September 2002 to September 2004 and for another organisation from September 2006 to April 2008.
The Tribunal noted that the first Tribunal had implied it doubted the applicant’s claim to have worked for Auto Goods while he was working for another organisation. The Tribunal raised a similar concern with the applicant and put to him that he had also claimed to be full-time student for a significant part of the time he said he was working for Auto Goods. The applicant answered that he studied only four hours a day and his work as a finance officer for the rehabilitation centre was only occasional.
The Tribunal also spoke to the applicant’s wife, Alina. She said that she met the applicant in 2008 and they married two months later and then came to Australia. She said they met at university but she was not sure what the applicant studied. She was studying something different. The Tribunal considered her evidence was vague and lacking in detail.
During the hearing on 28 February 2018 the Tribunal telephoned Mr Pushpa Lal Shrestha (“Mr Pushpa Shrestha”) who claimed to be the owner of Auto Goods. Mr Pushpa Shrestha told the Tribunal that the applicant’s father was from the same area as him and had asked him to give the applicant a job. Mr Pushpa Shrestha said he employed the applicant from 2003 and he worked full-time. The Tribunal’s decision record notes that Mr Pushpa Shrestha was asked if he employed an accountant to do his taxation documents. He said he did not but he employed an “auditor” to do the business taxation. The Tribunal then raised the issue of whether the applicant paid tax. The decision record contains the following passage at [35]:
He said that [sic] applicant was paid a salary and tax was then paid. The Tribunal then stated that the applicant says he did not pay any tax as he earnt below a certain amount. The witness then said that he might have paid a little tax. He then repeated the applicant’s evidence that he was paid below the amount that was necessary to pay tax.
The Tribunal said that there were “substantial inconsistencies given in the evidence by Mr Shrestha who claims to be his employer”. It said the letter the applicant provided to the Tribunal and which he claimed was from the accountant for Auto Goods was not from the same accountant or firm that Mr Pushpa Shrestha said was his auditor. The name of the auditor given by Mr Pushpa Shrestha is not stated in the decision record but in a transcript of the interview between the Tribunal and Mr Pushpa Shrestha annexed to an affidavit of the applicant’s solicitor the name of the firm given by Mr Pushpa Shrestha is described as “Easy Account” and the name of the principal was said to be “Ghanshyam Bhattarai”.
The letter provided by the applicant and referred to by the Tribunal appears to have been a letter dated 9 July 2015 from Rajan Adhikari & Associates Chartered Accountants which provided a letterhead address in Chitwan, Nepal. The letter said that Auto Goods was a client of the firm, that according to the records of Auto Goods the applicant had worked full-time as an auto mechanic from 7 August 2003 to 13 September 2008 and that, as he earned below the income tax threshold, he was not required to file any tax returns.
In a post hearing submission the applicant provided a letter dated 28 February 2018 from a Ghanshyam Bhattarai, who described himself as a “tax counsellor”, under a letterhead “Easy Accounting Service”. The letter said:
We do audit and prepare account for Auto Goods and submit to Rajan Adhikari and Associates who are chartered accountant for their checking, verification and certification before the account are submitted to Inland Revenue Office by us.
He also provided a letter dated 4 March 2018 under the letterhead “Rajan Adhikari and Associates Chartered Accountants” which said:
It is [sic] to certify that being Chartered Accountants, our firm Rajan Adhikari and Associates has been checking and certifying the accounts/financials pertaining to Auto Goods after they are audited and presented to us by Mr Ghanshyam Bhattariai of Easy Accounting Services.
The applicant also provided a translation of a document, apparently from the Inland Revenue Department of Nepal, which said as follows:
To Whom It May Concern
With reference to the above-mentioned subject, as Mr Prabeg Shrestha, son of Mr Ram Lal Shrestha, who worked with Auto Goods, Bharatpur-1, Chitwan, a taxpayer with PAN No. 300153321 registered in this office until Bhadra 2065 B.S. (Aug – Sept 2008), submitted an application on 2074/11/14 B.S. (Feb 26, 2018) requesting for the provision of tax clearance certificate to him stating that he had registered no business in the fiscal year 2073/074 B.S. (2016-2017 A.D.) and that he owes no dues in tax, it is hereby certified that the records of this office reveal that no business was registered in the applicant’s name and he does not owe any dues in tax.
The Tribunal said that it found the tax office letter of no assistance, noting that it “reads like a reference”, implying that the letter appeared suspicious or non-genuine. The Tribunal also noted that the letter was inconsistent with what it said was Mr Pushpa Shrestha’s evidence that the applicant “paid some tax … then when queried by the Tribunal changing his evidence”.
The Tribunal noted that there was general country information from the Department of Foreign Affairs and Trade to the effect that there is a black market for false documents in Nepal.
The Tribunal also referred to enquiries made by a departmental officer in Nepal of an employee of Auto Goods, “Sanu”. This person appears to be the same person referred to by Mr Pushpa Shrestha in the transcript of the Tribunal hearing as “Sonu”. Mr Pushpa Shrestha said he was responsible for looking after accounts “in the shop”. Sanu appeared to be the manager of the shop. The Tribunal noted that Sanu had given the departmental officer inconsistent information about the applicant’s working conditions, pay and other staff. The precise inconsistencies were not identified. A letter dated 21 February 2017 signed by Sonu Shrestha (who was not stated to be a relative of either the applicant or Mr Pushpa Shrestha) identified, and attempted to explain, some of the answers given by him to the departmental officer and, it may be inferred, inconsistent answers given by the applicant. These relate to whether the applicant was employed five or six days a week at Auto Goods and whether his monthly salary was 12,000 or 7,500 rupees (Court Book 378).
The Tribunal noted that when the applicant was questioned about these apparent inconsistencies the applicant asserted that the person spoken to by the departmental officer was “simply a receptionist”. It noted that the applicant said he subsequently telephoned Sanu (or Sonu) who said that he had been “unable to remember things and that was why there was a mistake” (apparently a reference to the discussion with the departmental officer). He said that “they” (presumably a reference to the employer) could not remember what he was paid.
The Tribunal noted that the applicant explained the inconsistencies in the information given by Mr Sonu Shrestha by saying that he was “just a receptionist” but “changed his evidence” by later agreeing that he was a person who looked after the money. In argument the applicant pointed out that in 2013 he had provided an organisation chart for Auto Goods that described Mr Sonu Shrestha as the “Receptionist Cashier” at the firm.
The Tribunal also noted that in his interview with the delegate the applicant was unable to name staff members or the head mechanic at Auto Goods. It said he was unable to answer simple questions about when he was paid and how much. It noted that in response to concerns raised by the delegate the applicant provided “another version” (it is not clear what the first version was) in writing from Sanu which matched his, the applicant’s, evidence. This would appear to be a reference to the letter from Sonu Shrestha dated 21 February 2017.
The applicant told the Tribunal that his father was a friend of the owner of Auto Goods, Mr Pushpa Shrestha, and this helped him get the job. He said that he was not related to Mr Pushpa Shrestha or Sanu Shrestha but they came from the same area. The Tribunal noted that during the hearing Mr Pushpa Shrestha said that he “called the applicant’s father brother”.
The Tribunal’s decision record noted that pursuant to section 359A it put concerns about the discrepancy between the accountant identified by Mr Pushpa Shrestha, Easy Account, and the auditors/accountants identified by the applicant. The applicant was given an opportunity to respond after the hearing. The applicant provided the following documents:
· a translation of the letter from the Inland Revenue Department of Nepal;
· a letter from “Easy Accounting Service”;
· a letter from “Rajan Adhikari & Associates Chartered Accountants”; and
· a statement from Mr Pushpa Shrestha.
The first three documents have already been mentioned. The statement from Mr Pushpa Shrestha is included in the court book at CB 396. The statement included the following paragraph:
About the role of Mr Ganshyam Bhattarai from Easy Accounting Service and Rajan Adhikari and Associates Chartered Accountants in our business, I submit that the former does the audit of accounts and the latter check and certify the accounts before submission to the department while Sonu Shrestha does daily sale purchase accounts.
The Tribunal noted that the document did not explain why Mr Pushpa Shrestha could not name the accountants, Rajan Adhikari and Associates, who had been identified by the applicant and in earlier documents as the firm’s accountants and who he now identified as one of the two firms of accountants working for his business.
The Tribunal also said that the documents did not
… explain in a persuasive manner why Sanu who has been identified as the person who does the accounts by the owner, could not answer basic questions about the applicant’s pay or hours of work.
It should be noted that the Tribunal did not identify the “basic questions” to which it referred. It is not clear whether it meant the inconsistency about whether the applicant worked five or six days a week or whether he was paid 7,500 rupees or 12,000 rupees a month referred to in paragraph 19 above. It is perhaps relevant that Sonu Shrestha, if he was interviewed about the applicant’s employment at Auto Goods by a departmental officer in 2013 (the actual year is unclear) was being asked about matters which were said to have occurred at the latest in 2008, about five years before. Mr Pushpa Shrestha was being asked about matters which were said to have occurred some 10 years before.
The Tribunal said it also conducted a “general web search” under the site for chartered accountants and auditors in Chitwan, Nepal. It said that “neither name on the documents provided appeared in that list in an official site”. Presumably, this is intended to convey that neither the name Easy Accounting Service nor Rajan Adhikari and Associates appeared in a web search. During the hearing the applicant sought to tender an affidavit annexing what was said to be the result of his own web search which showed the name Rajan Adhikari and Associates appearing on a website listing Nepalese accountants. Leaving aside the fact that the evidence was, at best, hearsay and raised a factual dispute, I was not satisfied that the evidence was relevant to any question of jurisdictional error and refused to admit it.
The Tribunal considered the evidence from Sonu was inconsistent and that Mr Pushpa Shrestha had failed to identify Rajan Adhikari and Associates as his accountants during the interview. The Tribunal also noted that in his visa application the applicant said that he was studying full-time for a bachelor degree, working as a finance officer in other organisations and claiming to work full-time, with over-time, in his nominated occupation as a motor mechanic at Auto Goods. When queried about this the applicant said that he only went to university for a few hours and was able to work full-time at Auto Goods and even do over-time work. He said that the work as a finance officer was only ever part-time. The Tribunal noted that the applicant’s visa application did not say his work as a finance officer was part-time, although it might be noted that the relevant box in the application form does not require an applicant to state whether employment is full-time or part-time (CB 17).
The Tribunal found that Mr Pushpa Shrestha’s evidence contained “numerous inconsistencies and unpersuasive responses”. The Tribunal said that it formed the opinion that Mr Pushpa Shrestha was supporting the applicant’s application for a visa as he considered “the applicant’s father his brother”.
The Tribunal also noted that the applicant had claimed to have been paid a wage or salary below the relevant tax threshold, paid no tax and had not received payslips. In those circumstances the Tribunal found it implausible that the firm Rajan Adhikari and Associates in its letter dated 9 July 2015 (CB 377) should state that, based on the records of Auto Goode, it could certify that the applicant had been employed from 7 August 2003 to 13 September 2008, in full-time employment, for 38 hours a week and be paid 7,500 rupees per month as base salary.
The Tribunal disbelieved the applicant and Mr Pushpa Shrestha and, having regard to what it found was inconsistency and implausibility in their evidence, was not satisfied that the applicant had ever worked for Auto Goods. It found the applicant’s work references were bogus and he had provided information that was false and misleading. It found that he did not meet PIC 4020 and that its requirement should not be waived. The application was refused.
Grounds of review
The amended grounds of review and particulars are for the most part discursive, argumentative and take issue with the merits of the Tribunal’s factual conclusions. Mostly they do not use the conventional language of jurisdictional error. They are poorly drafted and confusing. I do not propose to reproduce the grounds and particulars but will summarise them as best I can.
Ground one alleges that the Tribunal’s decision was “unreasonable, and/or did not come to the matter with an open mind”. What was meant by “open mind” was not explained. Whether it was intended to refer to apprehended bias or prejudgment is unclear. Particulars a, b, c and d, in summary, assert, referring to paragraph [13] of the decision, that the Tribunal was wrong to find the document from the Inland Revenue Department was “inconsistent with his claims of not having paid tax”. This was not the finding made by the Tribunal. Its criticism of this document was that it appeared suspicious and non-genuine.
Particulars e to h complain about the Tribunal’s failure to accept the applicant’s claims that he worked full-time as a mechanic, studied full-time for a bachelor degree and worked occasionally as a finance officer. The particular stated “it is not entirely implausible to be able to work full time and study full time”. It was alleged that it was “unreasonable” for the Tribunal to apply the DFAT country information about fraudulent documents to “all documents or documents generally” and it “gave insufficient weight to the [applicant’s] explanations”. The claim in particular i, that the Tribunal proceeded in ignorance of how familial terms were used in Nepal, was not pressed.
In my view this ground simply argues with factual conclusions of the Tribunal which, in my view, were open to it on the evidence.
Ground two alleges that the “conclusions drawn by the tribunal were unsound as they were not founded on a proper construction of the evidence before it”. The particulars go on to make a generalised claim that there was “insufficient probative of evidence available to the tribunal for the tribunal to find that the applicant had not been truthful” and that it “could not have been satisfied on the balance of probabilities on the basis of the evidence before it to find that the applicant had not been truthful”. In my view this amounts to nothing more than generalised and argumentative submission. It is not a proper ground of judicial review.
Ground three alleges that the “tribunal failed to afford procedural fairness to the applicant”. Particulars a and b allege that the Tribunal failed to give the applicant an opportunity to comment on its view that the initial evidence from Mr Pushpa Shrestha (see paragraph 11 above) that the applicant paid tax was inconsistent with the applicant’s claim that he paid no tax. Particular c alleges that the Tribunal failed to give the applicant “sufficient opportunity” to comment on Mr Pushpa Shrestha’s inability to identify the accountant or one of the accountants employed by his business. Particular d makes a similar allegation in relation to the applicant’s inability to name the head mechanic or other staff members at Auto Goods. The Tribunal is not required to offer the applicant an opportunity to comment on the steps in its reasoning process or to comment on its conclusions: SZYBR v Minister for Immigration and Citizenship [2007] HCA 26, 81 ALJR 1190, 235 ALR 609. None of these allegations have merit.
Particular e alleges that the Tribunal put to the applicant that the first Tribunal had found that the applicant had not worked as a mechanic at Auto Goods. It was alleged that, rather, the first Tribunal had put that the applicant had not worked “in the nominated occupation or a skilled occupation” (presumably as a motor mechanic) “for at least 36 to 48 months prior to his visa application”. This misrepresents the first Tribunal’s reasons. It is clear that, in addition to its concern about whether the applicant had fulfilled the technical visa requirements, it doubted whether the applicant had actually been employed as a mechanic as he claimed (CB 293). There is no substance in this particular.
Particulars f and g complain that the Tribunal’s assertion that the first Tribunal found that the applicant “did not have the claimed overseas experience” was a material error and that the Tribunal did not engage in a “fresh” merits review. Again this misrepresents the first Tribunal’s findings. As noted, the first Tribunal did not accept that the applicant was employed in a “skilled occupation” in Nepal because he was not qualified at the time. Nevertheless, it found for other reasons that the applicant satisfied the appropriate points test. There is no substance to this complaint.
Ground four alleges that the Tribunal “erred in its application of the requirements under section 359A of the Migration Act, when putting matters to the Applicant for his comment, in that the tribunal failed to comply with the requirements under section 379A”.
The particulars of this ground complained that the Tribunal had put various matters to the applicant in the hearing at paragraphs 24, 37 and 51 of the decision record, including the fact that he had worked for another organisation at a time he claimed to be working for Auto Goods and the failure of Mr Pushpa Shrestha to name the “auditor” that the applicant said was the Auto Goods “auditor”. The Tribunal said in the decision record that these matters were put to the applicant pursuant to section 359A of the Act. It was asserted by the applicant that insofar as these matters concerned documents they were required to have been served on the applicant by one of the means described in section 379A. I accept the respondent’s submission that the applicant is mistaken in this assertion because the matters put by the Tribunal were put to the applicant orally pursuant to section 359AA. In that case subsection 359A(3) provides an exception to the requirement. In any case, the Tribunal provided an opportunity to the applicant to make post-hearing submissions which was taken up by the applicant. There is no merit in this ground.
None of the grounds in the amended application succeed.
During the hearing the applicant sought leave to amend its application to raise additional grounds of jurisdictional error. Orders were made for the filing of a further amended application and for further written submissions.
Ground five, the first additional ground, in the further amended application alleges that the Tribunal committed jurisdictional error “in finding, at [55] of its Decision Record, that Mr Pushpa Lal Shrestha had changed his evidence, this being a finding that was not open to the Tribunal …”. The applicant relied on a transcript of part of the hearing before the Tribunal where the Tribunal member spoke to Mr Pushpa Shrestha.
The finding of the Tribunal at paragraph [55] should be read together with part of the preceding paragraph:
[54] … This letter [from the Inland Revenue Department in Nepal] says [the applicant] owes no tax (sic) it does not address the inconsistencies of the applicant stating he earned less than the taxable amount and paid no tax and his employer saying he paid some tax at hearing then when queried by the Tribunal changing his evidence.
[55] The owner of the business said that the auditor looked after matters such as tax paid by the applicant, (sic) when the Tribunal put to the owner that the applicant said he paid no tax he changed his evidence to say he was not sure if he paid tax.
The respondent agreed that the transcript of the interpreted conversation between the Tribunal member and Mr Pushpa Shrestha was accurate. The relevant passage is as follows (omitting references to interpretation):
Member: How was he paid?
Interpreter: We used to pay him salary and sometimes he used to work more or less so according to that scenario, we used to pay him.
Member: And did… Was any tax paid?
Interpreter: Yes we used to calculate tax in the tax office and used to pay.
Member: So he paid tax did he?
Interpreter: I don’t know, Member, but he might have paid a little bit.
Member: It’s unusual that an employer wouldn’t know that.
Interpreter: It’s like that, Member. For first 1 lakh, one-hundred and twenty five thousand Rupees, they don’t have to pay any tax. And for the shop who is earning two-hundred thousand rupees Rupees don’t have to pay tax. Currently we are paying 5,000 Rupees tax.
Member: Alright, is there anything else you want to say?
Witness (sic): He did his job in an honest way, satisfactory way, and he was one of the good workers. And after working here he said he was going overseas to study and I hope he is going well in his studies.
Member: Okay, there is nothing further. Thank you very much.
Witness: Thank you.
A number of observations can be made about this transcript. In answer to the Tribunal’s ambiguous question “Was any tax paid?” Mr Pushpa Shrestha appears to have interpreted that as a question about whether the business paid tax. He later observed that the business was currently paying 5, 000 rupees in tax. When he was asked if the applicant paid tax Mr Pushpa Shrestha’s answer was that “I don’t know, Member, but he might have paid a little bit”. That answer is perhaps unsurprising as it concerned events said to have occurred 10 or more years before.
Most significantly, perhaps, the transcript does not record the Tribunal putting to Mr Pushpa Shrestha, as it said it did, that the applicant said he did not pay tax. Further, there is no indication that Mr Pushpa Shrestha changed his evidence, whether in response to the contrary proposition put by the Tribunal or at all. At hearing counsel for the Minister conceded that the transcript did not support the finding that Mr Pushpa Shrestha changed his evidence.
In subsequent written submissions signed by the solicitor for the Minister, but not counsel who appeared at the hearing before me, the Minister resiled from that position. The written submissions asserted that the finding that Mr Pushpa Shrestha changed his evidence was open because “At the Tribunal hearing, the Owner stated that the applicant paid tax. The Owner then said the applicant may have paid a little tax and then said he paid below the tax threshold”. In my view, this submission is not supported by a fair reading of the transcript and I reject it. In my view, the most that can be fairly made of Mr Pushpa Shrestha’s evidence on this point is that he said he did not know. The rest appears to have been lost in translation.
In my view, the finding that Mr Pushpa Shrestha changed his evidence, whether in response to a position put by the Tribunal or otherwise, was not open.
The Minister submitted that even if there was an error of fact it was not jurisdictional error because it was only one of a number of considerations taken into account by the Tribunal. Its decision was not premised on this finding but rather relied on a “number of inconsistencies and considerations”.
I am satisfied that the Tribunal has mistakenly interpreted Mr Pushpa Shrestha’s evidence on this point and, further, that mistaken interpretation was not open on the material before the Tribunal. The real question is what flows from that. The question for determination by the Tribunal was whether or not there was evidence that the applicant had provided bogus documents in breach of PIC 4020. The documents which the Tribunal concluded were bogus were records relating to the applicant's employment at Auto Goods. The Tribunal concluded that the applicant was not in fact employed by Auto Goods at all. As the Minister submits, this conclusion was reached on a number of separate bases including an interview by a departmental officer of Sonu/Sanu who gave the departmental officer information about the number of days the applicant worked and his wage which was apparently inconsistent with information from the applicant himself, Mr Pushpa Shrestha’s failure to identify Rajan Adhikari and Associates as one of the accountants employed by his firm, the apparent implausibility of the applicant’s claim to have been employed full-time while studying full-time and an air of suspicion about some of the documents put forward by the applicant.
However, these were apparent inconsistencies and implausibility - there was no direct evidence of untruthfulness or that the documents were bogus.
The evidence of Mr Pushpa Shrestha was of a different character. His evidence was straightforward. He said the applicant had been employed by him at Auto Goods. Asked by the Tribunal if the applicant paid tax he said he did not know (this was in relation to the applicant’s employment said to have been some 10 or more years before). When questioned further he said whether or not the applicant paid tax depended on the tax threshold.
A conclusion that Mr Pushpa Shrestha was an untruthful witness led inexorably to a conclusion that the applicant had not been employed as he claimed, and the documents were necessarily bogus. On the other hand, if Mr Pushpa Shrestha was a truthful witness it followed that the applicant had been employed by him and the documents, despite some concerns about them, were probably genuine.
Mr Pushpa Shrestha was therefore a central witness and an assessment of his credibility was key to an assessment of the central issue of whether or not there was evidence the documents were bogus. A characterisation of the witness as untruthful on the basis of a significant misunderstanding of his evidence, or a characterisation that was not open on the evidence, necessarily raises doubts about whether the Tribunal has discharged its statutory function of evaluating the applicant's claims. Its erroneous conclusion in relation to a central and the key issue is, in my view, a grave error and amounts to jurisdictional error: Hossein v Minister for Immigration and Border Protection (2018) 92 ALJR 780, HCA 34, [25].
Ground six, the second additional ground, in the further amended application alleges that the Tribunal committed jurisdictional error in making the finding at paragraph 50 of the decision record that the applicant “at hearing changed his evidence from the person who took the call [Sonu] being just the receptionist to agreeing that this person looked after all the money”. It was asserted that the Tribunal had failed to consider the organisational chart for Auto Goods (CB 222) provided by the applicant which described Sonu as “Receptionist Cashier”. It was asserted that it was not open to the Tribunal to find that the applicant had changed his evidence. No transcript of this part of the hearing was provided and, while I accept that the applicant had described Sonu in this way at an earlier point, the change was to agreeing that “this person looked after all the money” which, in the Tribunal’s view, was a change intended to align the applicant’s evidence with that of Mr Pushpa Shrestha. It may be that this suggests, if not a change in evidence, then a change in emphasis in the evidence. I am not satisfied that the Tribunal’s finding was not open. This ground fails.
Ground seven, the third additional ground, in the further amended application alleges that the Tribunal “denied the applicant procedural fairness pursuant to section 359A of the Migration Act by failing to give the applicant clear particulars of the fact … that it had ‘conducted a general web search under the site for chartered accountants and auditors in Chitwan Nepal’ and that ‘neither name on the documents provided appeared in that list in an official site’”.
This is a reference to paragraph 53 of the decision record where the Tribunal notes “the Tribunal conducted a general web search under the site for chartered Accountants (sic) and auditors in Chitwan Nepal (sic) neither name on the documents provided appeared in that list in an official site”.
As noted I disallowed proposed evidence from the applicant that he had conducted a web search and found the name of Rajan Adkhikari and Associates listed on an official web site for accountants in Nepal. Leaving aside questions of admissibility of this evidence and its reliability I was not satisfied it was relevant to the question of jurisdictional error. This, as the ground of review recognises, depends on whether the statutory form of procedural fairness prescribed by the Act was afforded to the applicant, not whether or not the result of the Tribunal’s web search was correct.
It was not disputed by the Minister that the applicant had not been given notice of the Tribunal’s web search before its decision to reject his application. The requirement relied on by the applicant under section 359A is:
(1) … the Tribunal must:
(a) give to the applicant, in a way the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review; …
The Minister made three points in response to the applicant’s complaint. First, he said the obligation relates only to information the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review and cited in support SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1196, [15] and Minister for Immigration v SZLFX (2009) 238 CLR 507, [22] – [23]. Both decisions concerned section 424A of the Act, a provision analogous to section 359A. In SZBYR the High Court considered whether inconsistencies constituted information for the purpose of section 424A. The majority said at [18]:
… [I]f the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the applicant’s evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting ‘information’ within the meaning of para (a) of section 424A(1)… However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.
SZLFX concerned a case where an applicant for a refugee visa said that he practised Falun Gong with a group led by a Mr Li. An employee of the Tribunal had telephoned a member of the Falun Gong group who had not heard of Mr Li and said the group did “not have leaders”. The employee made a file note of the conversation but there was no evidence that the Tribunal had considered it. The High Court held that the Tribunal had found against the applicant because of internal inconsistencies in his evidence rather than the file note.
The second point made by the Minister was that the result of the web search was not the reason why the Tribunal rejected the application but rather because the applicant provided a bogus document or documents. It was said that the search was nothing more than an additional factor supporting the Tribunal’s finding made on other bases. He relied on SZHFX v Minister for Immigration and Citizenship [2008] FCA 726. In that case an applicant for a refugee visa asserted that she feared harm from a person called Jahangir, a well-known terrorist and criminal in Bangladesh. The Tribunal referred to “independent reports” as supporting the view that Jahangir was “cunning and ruthless” rather than “amateurish” as described by the applicant. The applicant submitted that she was entitled to particulars of the “independent reports” pursuant to section 424A(1) of the Act. Weinberg J rejected that submission because the relevant information described as “independent reports” substantially came from the applicant’s own material and therefore did not trigger section 424A(1). Further, he held that the information was not part of the reasons for rejecting the applicant’s claims.
Finally, the Minister relied on SZVJY v Minister for Immigration and Border Protection [2016] FCA 618. In that case a citizen of Bangladesh claim to fear persecution there because of his homosexuality. In support of his claims he said that he regularly attended a gay bar in Oxford Street, Sydney called “The Toolshed”. The Tribunal conducted an internet search and consulted the Sydney telephone book and concluded there was not a gay bar of that name. The information was adverse to the applicant. The applicant asserted the result of the Tribunal’s enquiries was “information” within the terms of section 424A(1) and he was entitled to be given particulars of that information.
North J accepted that submission. He distinguished SZBYR and SZLFX because the fact of the existence or otherwise of such a gay bar was not simply an element of the Tribunal’s thinking process. However, he held that the information about the venue fell within the exception in section 424A(3)(a), information that is “not specifically about the applicant …”. The equivalent provision in Part 5 of the Act is section 359A(4)(a) which provides as follows:
(4) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; …
In my view the facts of this case are similar to those of SZVJY, rather than SZYBR, SZHFX or SZLFX, in that the subject matter is not internal inconsistencies of an applicant’s evidence or the thought processes of the Tribunal. It is about a state of affairs in the external world, that is, the nonexistence of a firm of accountants who have vouched that the applicant was employed as claimed. This is significant and might be expected to be part of the reason for affirming the decision under review.
I am also satisfied that the information does not come within the exception in subsection (4)(a). While in one sense the information that the Tribunal found, that is, the absence of a supposed firm of accountants from an official list - suggesting that the firm did not exist, was not specifically about the applicant the necessary corollary was that the information provided by the accountants specifically about the applicant was false.
I uphold this ground of review.
The Minister sought his costs thrown away as a result of the late amendment of the application. He points out, correctly, that the successful amendments did not arise out of any new factual matter and no explanation has been offered about why the successful grounds were not included in the original or the first amended application. The Minister points out that consent orders were made on 16 May 2018 that the applicant file an amended application and any affidavits on which he relied by 11 July 2018. The matter was adjourned part-heard on 12 December 2018. On 31 January 2019 the applicant filed and served an affidavit annexing part of the transcript of the Tribunal hearing. No explanation was provided to the Minister at the time as to the relevance of the affidavit. On 12 February 2019 the applicant was given leave to rely on two paragraphs of that affidavit. During the hearing on that day the applicant sought to raise new grounds of review which had not been foreshadowed to the first respondent. Orders were made that the applicant file a further amended application and for the parties to make further written submissions.
If costs were to be calculated on a chronological, item by item basis I would not award the applicant any costs prior to 12 February 2019 because the first respondent did not have notice of the ultimately successful case against him until that date. I would also make a costs order in favour of the first respondent for its costs thrown away by the amendments after 12 February 2019. However, having regard to the object of the Federal Circuit Court Rules to assist the just, efficient and economical resolution of proceedings, to use streamlined processes and to avoid undue delay, expense and technicality I propose to make a single costs order which reflects the court’s view of the applicant’s conduct described above. Schedule 1, Part 3, item 3 of the FCC Rules provides for a single lump sum in migration proceedings. I propose to make a costs order in favour of the applicant of 40% of the lump sum of $7,467. That figure is $2,986.80.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Young
Associate:
Date: 26 June 2019
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