SHRIVASTAVA v Minister for Immigration
[2015] FCCA 483
•10 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SHRIVASTAVA v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 483 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed at its hearing to invite the applicant to “respond to” adverse information notified pursuant to s.359AA of the Migration Act 1958 (“Act”), that the Tribunal failed to advise the applicant that he could seek additional time to respond to adverse information notified pursuant to s.359AA of the Act, that the Tribunal was biased, that the Tribunal failed to make an enquiry requested of it. WORDS & PHRASES – “Comment on” – “respond to”. |
| Legislation: Migration Act 1958, ss.97, 359AA, 359A, 474 Migration Regulations 1994, cls.572.224 of sch.2, 4020 of sch.4 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Kaur v Minister for Immigration & Citizenship [2012] FMCA 438 |
| Applicant: | PARITOSH SHRIVASTAVA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | MIGRATION REVIEW TRIBUNAL |
| File Number: | SYG 2783 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 18 February 2015 |
| Date of Last Submission: | 18 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 10 March 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Mr N. Dobbie of Dobbie & Devine Immigration Lawyers Pty Ltd |
| Counsel for the First Respondent: | Mr M.J Smith |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
A writ of certiorari issue bringing the second respondent’s decision of 14 October 2013 into this Court to be quashed.
A writ of mandamus issue directing the second respondent to re-determine according to law the applicant’s application made to it on 19 March 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2783 of 2013
| PARITOSH SHRIVASTAVA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| MIGRATION REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of India, applied for a Student (Temporary) (Class TU) subclass 572 visa on 27 December 2012. On 7 March 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”) on the basis that he did not satisfy public interest criterion cl.4020 (“PIC 4020”) of sch.4 to the Migration Regulations 1994 (“Regulations”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He 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 cannot rehear the applicant’s application for a visa. Its 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 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.
Relevant legislation
The criteria for the grant of a subclass 572 visa are set out in pt.572 of sch.2 to the Regulations. One of the criteria which the applicant had to satisfy at the time a decision was made on his application was cl.572.224(a) which required him to satisfy PIC 4020.
PIC 4020 relevantly provides:
(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
…
(4)The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that:
(a)compelling circumstances that affect the interests of Australia; or
(b)compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;
justify the granting of the visa.
(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.
Section 97 of the Act defines “bogus document” as:
… 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.
Background facts
Visa application
As already noted, the applicant applied for a subclass 572 visa on 27 December 2012. In support of his application the applicant provided copies of two letters dated 7 January 2013 purportedly issued by the chief manager of the Gokuldham branch of the State Bank of India which stated that the applicant’s sister and his brother-in-law held accounts with the bank. The letter in relation to the applicant’s sister referred to her as “Mrs”.
Following a telephone request for verification made by the Minister’s department (“Department”) on 29 January 2013, the Gokuldham branch of the State Bank of India advised that the 7 January 2013 letters were fake, had not been issued by the branch and that the branch did not have anyone who held the designation of “chief manager”. On 4 February 2013 the delegate wrote to the applicant seeking his comments on or response to that information. In response the applicant provided:
a)an email purportedly sent by the Gokuldham branch to the “Australian High Commission Visa Office New Delhi” on 25 February 2013. The email confirmed that the bank had issued the letters regarding the applicant’s sister and brother-in-law’s bank accounts but referred to them as having been issued on 7 January 2012. The email also stated that the bank had already confirmed by fax with the Australian High Commission in New Delhi that the letters were genuine; and
b)an email sent to the delegate by his brother-in-law attaching two further bank letters dated 13 February 2013 stating the balances in the applicant’s sister and brother-in-law’s accounts. The letters were signed by the chief manager of the Gokuldham branch and the letter concerning the applicant’s sister referred to her as “Miss”.
On 7 March 2013 the delegate refused the applicant’s visa application on the basis that he had provided fraudulent documentation in support of his application and therefore did not satisfy PIC 4020.
Tribunal proceeding
On 5 August 2013 the Tribunal wrote to the applicant seeking his comments on or response to the information that the documents he had provided from Gokuldham branch of the State Bank of India were not genuine.
In his response the applicant provided:
a)further copies of the 7 January 2013 letters with notations that they were genuine and an additional signature of the assistant general manager of the branch; and
b)a letter dated 19 August 2013 from the assistant general manager of the Gokuldham branch stating that the 7 January 2013 letters were genuine and that although one of them referred to the applicant’s sister as “Mrs” instead of “Miss”, it had been issued in relation to the same person. The letter also stated that the 13 February 2013 letters provided by the applicant’s brother-in-law and the 25 February 2013 email were genuine.
The applicant appeared before the Tribunal on 9 October 2013 and provided a further letter dated 8 October 2013, purportedly signed by the chief manager of the Gokuldham branch. The letter stated that although the 25 February 2013 email had mistakenly referred to the bank’s first letters as having been issued on 7 January 2012 instead of 7 January 2013, all the documents provided by the bank were genuine.
At the Tribunal hearing the applicant said that he had never provided fraudulent documents. He said that there had been a miscommunication and that the bank had made some mistakes. The applicant said that he had travelled to Australia to study and that although he had taken breaks because of his circumstances, he still wanted to study and planned to undertake a Bachelor of Accounting.
Following the Tribunal hearing the applicant provided another letter from the bank dated 9 October 2013 stating that the bank did have a chief manager position.
The Tribunal’s decision and reasons
The Tribunal affirmed the delegate’s decision not to grant the applicant a visa. Based on the Gokuldham branch’s reply to the Department’s request for verification of the 7 January 2013 letters, the Tribunal was not satisfied that those letters had been issued by the branch. It found that the further letters dated 13 February 2013 and purportedly issued by the chief manager of the Gokuldham branch were also not genuine given that the branch had stated that it did not employ anyone with that designation. The Tribunal noted that the applicant had provided further letters and an email from the bank to support his claim that the 7 January 2013 letters were genuine but, given the bank’s response to the Department’s enquiry, it did not accept that those further letters and the email were reliable. It also did not accept that the email from the applicant’s brother-in-law was credible. The Tribunal therefore found that on the information before it there was probative evidence that the applicant had provided bank balances which purported to have been, but were not, issued in respect of his sister and brother-in-law. It found that the documents were bogus documents within the meaning of s.97(a) and that those bogus documents had been provided to the Department and to it. The Tribunal concluded that the applicant did not meet the requirements of PIC 4020.
The Tribunal went on to consider whether there were compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen which justified it waiving the requirements of PIC 4020. It noted that the applicant had said in that regard that he had travelled to Australia to study and planned to continue his studies but found that he had not provided evidence of any compassionate or compelling circumstances which justified the granting of the visa. The Tribunal was therefore not satisfied that circumstances existed which justified waiving the requirements of PIC 4020(1) or (2).
Proceedings in this Court
In his application commencing these proceedings the applicant alleged:
1.The Second Respondent failed to comply with s359A of the Act.
Particulars
(i)The Tribunal failed to comply with s359A of the Migration Act 1958 (“the Act”) by failing to give to the Applicant clear particulars of the following adverse information, that the Tribunal considered would be the reason, or a part of the reason, for affirming the delegate’s decision; and failed to ensure, as far as is reasonably practicable, that the Applicant understood why it was relevant to the review, and the consequences of it being relied on in affirming the delegate’s decision; and failed to invite the Applicant to comment or respond to it:
(a) Information that the Gokuldham Branch of the State Bank of India did not have anyone with the designation of Chief Manager.
2.There is apprehension of bias.
Particulars
(i)The decision is infected with jurisdictional error because there is an apprehension of bias.
(a) The Tribunal affirmed the delegate’s decision, finding that the Applicant did not satisfy clause 572.224 of the Migration Regulations 1994, as it found that the Applicant had provided bank balance documents that were bogus documents.
(b) That finding was based on information that the delegate received and relied on when refusing the visa application.
(c) The Applicant gave a letter to the Tribunal from the State Bank of India that brought into doubt the accuracy of the information relied on by the delegate and confirmed the genuineness of the bank balance documents in question.
(d) Despite this, the Tribunal found the letter not to be genuine solely on the basis of the information that the delegate had received and on which the delegate based its findings, despite that being information the accuracy of which the letter directly challenged.
(e) The posited fair-minded observer would reasonably apprehend that the Tribunal had predetermined the application and that conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.
3.The Tribunal Failed to Make a Relevant Enquiry.
Particulars
(i)The Tribunal failed to enquire of the State Bank of India whether the Gokuldham Branch of the State Bank of India had anyone with the designation of Chief Manager and whether the bank balance documents were genuine.
(a)The Applicant gave a letter to the Tribunal from the Assistant General Manager of the State Bank of India, Gokuldham Branch, which confirmed that the bank balance documents were genuine. The Tribunal was obligated, in the particular circumstances of the review, to enquire as to the genuineness of the documents and the existence of the position of Chief Manager.
Ground 1
Section 359A of the Act requires the Tribunal to give to applicants information which would be the reason or part of the reason for affirming the decision under review and s.359AA permits that information to be given orally at a Tribunal hearing. The latter section provides that if the Tribunal takes that course it must also:
(b)…
(i) …
(ii) orally invite the applicant to comment on or respond to the information;
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; …
The applicant submitted that the Tribunal had not complied with s.359AA(b)(ii) or (iii) in relation to information that the Gokuldham branch of the State Bank of India did not have a “chief manager”. Referring to the following passage from the transcript of his Tribunal hearing, the applicant argued that although the Tribunal had asked him to comment on the information about the “chief manager” it had not asked him to respond to it and had not advised him that he might seek additional time to make any comment or response:
Q26:All right. Well, I might just put that additional information to you pursuant to 4-2-4-3-5-9-A-A and you can comment. I, I did write to you, as I said I did write to you with the information that the department said they had talked to that branch and they’ve said that your documents were not true, were fake and were not issued by their branch. But the other thing that they did actually say was that they do not have anyone with a chief manager title in their, in that branch. Now, this is relevant because it may indicate to me that these documents which are all, have all been purportedly written by the chief manager or sorry, not by the chief manager, they’re not true. So that, that may mean that I, I would find that there is evidence that suggests that the documents aren’t true. Would you like to comment on what I’ve said now or ---
A:Yeah, I … what you are said but ---
Q26:--- would you like a little break to think about what I said or would you like to comment in writing? (p.7)
Failure to invite “response”
The applicant referred to Kaur v Minister for Immigration & Citizenship [2012] FMCA 438 where Nicholls FM said that an invitation to respond is broader than an invitation to comment although on its own the absence of the words “respond to” from the Tribunal’s statements at the hearing need not be of any particular significance, the issue being the nature of the invitation which accompanied the Tribunal’s notification of adverse information to the applicant.
Section 359AA was introduced to provide a means by which the Tribunal could, at its hearing, orally notify an applicant of adverse information. The situation under s.359AA may usefully be contrasted with the situation under s.359A. Before the insertion of s.359AA, if the Tribunal notified an applicant of adverse information pursuant to s.359A, it was required by that section to invite the applicant to comment on the adverse information. Section 359A did not require the Tribunal to invite the applicant to “respond to” the information. The words “or respond to” were inserted into s.359A at the same time as s.359AA was inserted into the Act. It appears, the relevant explanatory memorandum shedding no light on the issue, that the Parliament amended s.359A to reflect s.359AA so that the terms of the equivalent parts of their texts would be identical notwithstanding that the sections operated in different environments.
Although the words “comment on” and “respond to” mean much the same thing, their differences can be material. For instance, in the context of s.359A Jagot J said in Minister for Immigration & Citizenship v Saba Brothers Tiling Pty Ltd (2011) 194 FCR 11:
It is true that s.359C(2)(b), read with s.359A(1)(c), requires a response to the information in the invitation. But beyond that the Migration Act imposes no minimum requirement of content for a response or a comment. Accordingly, on the face of the provisions, any reply or answer directed to the information itself will constitute a response. (at 18 [31])
Under s.359AA the situation is somewhat different. This is because, at a Tribunal hearing, anything said and any gesture expressed by an applicant to the Tribunal in reply to a notification of adverse information pursuant to that section would amount to a response. In fact, anything other than complete silence and physical immobility could be a response. Because inviting a content-free response to adverse information serves no purpose, I conclude that s.359AA, unlike s.359A, is concerned solely with responses which are substantive in nature and that s.359AA requires the Tribunal, upon notification of adverse information at its hearing, to afford an applicant an opportunity, by the medium of an invitation to respond, to make a response of that sort.
Further, because “response” is a wider concept than “comment” (Saba Bros at 18 [30]), an applicant is not restricted under s.359AA merely to offering commentary on adverse information. He or she is entitled to put more substantial material before the Tribunal, perhaps evidence in rebuttal of the adverse information which the Tribunal has notified, although the Tribunal may not grant additional time to gather evidence which an applicant does not already have in his or her possession.
It can therefore be seen that the obligation imposed by s.359AA to invite an applicant to “respond to” adverse information is a substantive procedural fairness obligation. Such obligations must be observed when the appropriate circumstances obtain, as they did in this case: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294. Because, as the transcript reveals, the Tribunal failed to invite the applicant to make a response to the information about the “chief manager”, inviting him only to make a comment, it failed to observe a strict requirement of the Act with the consequence that its review was affected by jurisdictional error.
Failure to offer additional time to respond
The second element of the first allegation was that the Tribunal had not told the applicant that he could seek additional time to comment on or respond to the information about the “chief manager”. In this regard, he referred to Flick J’s statement in SZNKO v Minister for Immigration & Citizenship (2010) 184 FCR 505 at 514 [31] that a provision such as s.359AA(b)(iii) “imposes a requirement that an applicant be positively advised that he may seek additional time in which to respond” and that that “is not achieved by a statement which merely implicitly conveys to an applicant that he may seek and be given ‘additional time’.” The applicant also referred to SZTGV v Minister for Immigration & Border Protection [2015] FCAFC 3 where, in relation to a provision analogous to s.359AA, it was said that:
... asking the appellant’s representative whether she wished to “make a submission today“ or “rely on your submission that’s dated 14 June“ or “did you want time to put something in writing“ did not satisfy the requirement that the Tribunal advise the appellant that he may seek additional time to comment on or respond to the information … (at [56])
That was so because the questions asked did not involve the Tribunal in advising the applicant of anything.
What the Tribunal relevantly did in this case was to ask the applicant:
a)if he wanted to comment on the adverse information straight away;
b)whether he would like a “little break” to think about the adverse information; and
c)whether he would like to comment in writing on the adverse information.
The second of the Tribunal’s questions suggested the availability of a small amount of additional time to formulate a comment at the hearing while the third suggested the ability to make post-hearing written submissions. Although the availability of additional time was implicit in those questions, the section required more than that. It required the Tribunal to advise the applicant that he could seek extra time to provide comments or a response. It did not do that. Additionally, what the Tribunal said also implied that the applicant was entitled to additional time, which was not the case. Whether he would be given additional time was a matter for the Tribunal to decide and so the Tribunal’s questions implicitly misrepresented the situation to the applicant.
The Tribunal failed in discharging the imperative duty imposed on it by s.359AA(b)(iii) with the consequence that its decision was affected by a second error going to jurisdiction.
Ground 2
The second ground of the application alleged that the relevant observer would have apprehended the possibility that the Tribunal was not bringing an impartial mind to the determination of the review: Johnson v Johnson (2000) 201 CLR 488; Re Refugee Review Tribunal: Ex parte H (2001) 179 ALR 425. He submitted:
The Applicant gave a letter and documents to the Tribunal from the State Bank of India that brought into doubt the accuracy of the information relied on by the delegate and confirmed the genuineness of the financial letters in question …
Despite this, the Tribunal found the financial letters not to be genuine solely on the basis of the information that the delegate had received by telephone and on which the delegate based its [sic] findings.
The fact that the Tribunal appeared determined to reject the later documents submitted by the applicant without any evidence to support its implicit determination that they were not genuine in one or other respect is troubling. The Tribunal does not seem to have given any thought to the possibility that the information obtained from the State Bank of India by telephone some time earlier might have been incorrect or incomplete and to have rejected the later documents simply on the basis of that early communication and without other evidence suggesting that the subsequent documents might not have been genuine points to the Tribunal’s mind having been closed on that subject from an early point.
However, it is not necessary to reach a conclusion on that point because the allegation was of apprehended bias, not actual bias. An allegation of apprehended bias cannot be proved by reliance only on the decision-maker’s reasons for decision. As was said in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427:
… an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment. (reference omitted) (at 446-447 [67] per Gummow ACJ, Hayne, Crennan and Bell JJ)
The evidence does not support a conclusion that a fair minded lay observer 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 Tribunal was not bringing an impartial and unprejudiced mind to the resolution of the question it was required to decide. Consequently, the second ground of the application is not made out.
Ground 3
The principal argument advanced by the applicant in the third ground of his application was that:
a)the Tribunal should have, but did not, contact the Gokuldham branch of the State Bank of India to check whether anyone there had the title of “chief manager”; and
b)that failure had a sufficient connection to the outcome of the review to amount to a failure to review and thus jurisdictional error.
The applicant also submitted that the Tribunal’s implicit decision to not make that enquiry, following his suggestion that it do so, represented a miscarriage of discretion such that its ultimate decision on the review was affected by jurisdictional error.
Failure to enquire
In Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 it was said:
... The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. … (reference omitted) (at 1129 [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)
In relation to their Honours’ latter statement, a failure to enquire may amount to jurisdictional error if it is sufficiently unreasonable: SZIAI at 1129 [26], Minister for Immigration & Citizenship v Le (2007) 164 FCR 151 at 172-173 [60] and Khant v Minister for Immigration & Citizenship (2009) 112 ALD 241 at 255 [67].
The applicant submitted that there had been an obvious enquiry to be made concerning the genuineness of the documents referred to above at [8] and [11] and that the information which might have been gleaned from such enquiry could have affected the outcome of the review.
I presume from one enquiry having been made early in the piece that a further enquiry of the State Bank of India would have been easy enough to undertake. It may well have determined the genuineness of the documents in question but there is no persuasive evidence of what the results of such an enquiry would have been. On this question I attach no weight to the documents produced by the applicant to the Tribunal as no attempt to prove or test them was undertaken by the parties. The applicant’s argument is essentially speculative. As a consequence, there is no basis to conclude that the enquiry postulated by the applicant would have revealed a fact critical to the review.
In the absence of evidence of that sort there is also no basis to conclude that the failure to enquire was so unreasonable that the Tribunal’s decision was affected by jurisdictional error: SZIAI at 1129 [26].
Miscarriage of discretion
At page 9 of the transcript of the Tribunal hearing, the applicant is recorded as having said:
… And if you still find that um, I have not provided a non genuine like, I have not provided non genuine documents ah, you might like ah, if you want to make sure that these are genuine you can like, ah, ask the bank. If you prefer asking the bank so they will be the, they will be the last person to tell that these documents are genuine …
In addresses the Minister accepted that the applicant had asked the Tribunal to contact the bank.
In Minister for Immigration & Border Protection v Singh (2014) 308 ALR 280 the Full Court of the Federal Court considered the decision of the High Court in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332. The Full Court observed that the concept of legal unreasonableness is employed in two different contexts: it can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process or it can be “outcome focused, without necessarily identifying another underlying jurisdictional error” (at 289 [44]). Their Honours recorded at 289 [44] that the plurality judgment in Li had described a finding of unreasonableness in the latter context as an inference drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”.
In Singh the Full Court of the Federal Court said:
In circumstances where no reasons for the exercise of power, or for a decision, are produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law. (at 289 [45])
The Tribunal gave no reasons for not having made the enquiry of the State Bank of India suggested to it by the applicant. Consequently, the Court must focus on the Tribunal’s decision to not make further enquiry of the State Bank of India and assess for itself the justification for and intelligibility of that decision, at all times keeping in mind the Full Court’s caution concerning the Court’s proper role.
The documents referred to above at [8] and [11] were adduced by the applicant with a view to challenging the correctness of the information obtained as a result of the Department’s enquiry of 29 January 2013. However, without any particular evidence tending to prove that those later documents were false or any general evidence which indicated that they might be suspect for other reasons, the Tribunal appears to have been unwilling to consider the possibility that they could have been genuine.
The Tribunal did not explain why the applicant’s documents did not even raise a question about the correctness of the information obtained as a result of the Department’s enquiry. The genuineness of the applicant’s documents was an issue on which the success or failure of his review turned and, as a critical issue, deserved to be treated by the Tribunal with appropriate seriousness. However, it seems that the information obtained as a result of the Department’s enquiry convinced the Tribunal beyond all doubt that there was no position of “chief manager” at the Gokuldham branch of the State Bank of India and that documents which said differently were not credible. Such a conclusion seems arbitrary, especially when the further documents submitted by the applicant are taken into account.
I perceive no evident and intelligible justification for the Tribunal’s decision to not make the enquiry suggested by the applicant. I conclude that in deciding not to make the enquiry suggested by the applicant, the Tribunal’s discretion miscarried.
However, that finding does not decide the issue. A legally unreasonable exercise of power may overlap with an alleged denial of procedural fairness because the result of that exercise of power may affect the fairness of the decision-making process: Singh at 291 [50]. Consequently, if the Tribunal errs in declining to make a requested enquiry in circumstances where the enquiry meets the SZIAI criteria quoted above at [36] then it could be concluded that the decision to not enquire affected the fairness of the decision-making process. In this case, however, for the reasons given earlier, the suggested enquiry did not meet the SZIAI criteria. Consequently, the Tribunal’s miscarriage of discretion concerning the enquiry sought of it by the applicant does not lead to its decision being affected by jurisdictional error.
Conclusion
The Tribunal’s decision to affirm the delegate’s decision was affected by jurisdictional error.
As a result, the Tribunal’s decision will be set aside and the matter returned to it to be determined according to law.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 10 March 2015
2