Singh v MIBP

[2014] FCCA 510

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 510

Catchwords:
MIGRATION – Review of decision by Migration Review Tribunal – whether Migration Review Tribunal’s decision affected by jurisdictional error – whether a document of ten photographs, including one of the applicant, was properly the subject of a Certificate issued by the Department of Immigration and Border Protection pursuant to s.375A of the Migration Act1958 (Cth), thereby preventing its disclosure – whether the applicant was denied procedural fairness by not being given a proper opportunity to give evidence in relation to the document the subject of a certificate issued pursuant to s.375A of the Migration Act1958(Cth) – whether the Migration Review Tribunal complied with s.360 of the Migration Act 1958 (Cth) in giving the applicant an opportunity to give evidence and present arguments relating to the issues in the review – whether the Migration Review Tribunal review was conducted in accordance with s.357A of the Migration Act 1958 (Cth) – no denial of procedural fairness – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.31, 65, 97, 338, 357A, 359A, 359AA, 360, 375A, 474
Migration Regulations 1994 (Cth) regs.2.01, Schedule 2, Schedule 4.

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Davis v Minister for Immigration, Multicultural Affairs and Citizenship [2004] FCA 686
Burton v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1455
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Applicant: SATNAM SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 242 of 2013

Judgment of: Judge Emmett

Hearing date: 19 February 2014

Date of Last Submission: 19 February 2014

Delivered at: Sydney

Delivered on: 18 March 2014

REPRESENTATION

Solicitors for the Applicant: Mr Michael Jones 
(Parish Patience Immigration Lawyers)

Counsel for the Respondents: Mr Martin Smith

Solicitors for the Respondents: Sparke Helmore

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 242 of 2013

SATNAM SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Migration Review Tribunal dated 14 January 2013 and handed down on 14 January 2013 (“the MRT”).

2. The applicant is a citizen of India.

3. This issue in this case is whether the MRT denied the applicant procedural fairness and breached ss.357A(1) and 360(1) of the Act by failing to show to the applicant a photograph referred to at the hearing and allowing the applicant an opportunity to give evidence and present arguments relating to the issues in review.

4. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the MRT’s review and decision.

Background

1. On 25 December 2009, the applicant lodged an application for a Skilled Graduate (Temporary)(Class VC, subclass 485) visa with the (then) Department of Immigration and Citizenship (“the Department”).

2. On 16 December 2011, the Delegate refused the applicant’s application for a visa.

3. On 29 December 2011, the applicant lodged an application for review of the Delegate’s decision by the MRT.

4. On 14 January 2013, the MRT affirmed the decision of the Delegate not to grant a visa.

5. On 11 February 2013, the applicant filed an application in this Court seeking judicial review of the MRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Skilled Graduate (Temporary) (Class VC, subclass 485) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Under s.338 of the Act, a decision to refuse to grant a visa is a decision which may be reviewed by the second respondent.

3. Relevantly, the requirement for a skills assessment to be undertaken for the grant of a Skilled Graduate (Temporary) (Class VC, subclass 485) visa are set out in cl.485.224 of Schedule 2 to the Regulations as follows:

   “485.224  

   (1)  The skills of the applicant for the applicant's nominated skilled occupation have been assessed by a relevant assessing authority as suitable for that occupation.

   (2)  If the applicant's skills were assessed on the basis of a qualification obtained in Australia while the applicant held a student visa, the qualification was obtained as a result of studying a registered course.”

4. Clause 485.216 of Schedule 2 to the Regulations requires:

   “(1)  The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4005, 4010, 4020 and 4021.”

   (emphasis added)

5. Public Interest Criteria 4020 (“PIC 4020”) is found in Schedule 4 to the Regulations and provides as follows:

   “4020(1)  There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to:

   (a)  the application for the visa; or

   (b)  a visa that the applicant held in the period of 12 months before the application was made.

   …

   (3)  To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant.

   (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.

   Note: Regulation 1.03 defines bogus document as having the same meaning as in section 97 of the Act”

6. “Bogus document” is defined in s.97 of the Act as follows:

   “bogus document” in relation to a person, means a document that the Minister reasonably suspects is a document that:

   (a)  purports to have been, but was not, issued in respect of the person; or

   (b)  is counterfeit or has been altered by a person who does not have authority to do so; or

   (c)  was obtained because of a false or misleading statement, whether or not made knowingly.”

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 5 of Part 5 of the Act (s.357A of the Act). Division 5 Part 5 of the Act includes ss.359A and 360, which provide that:

   “359A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   360  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

8. Section 359AA of the Act permits the MRT to give orally to an applicant clear particulars of any information that the MRT considers would be the reason or part of the reason for affirming the decision under review. The MRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The MRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

9. Relevantly, s.375A of the Act makes provision for the Minister to certify that a document or information, the disclosure of which would be contrary to the public interest, must only be disclosed to the relevant tribunal. Section 375A of the Act is in the following terms:

   “(1)  This section applies to a document or information if the Minister:

   (a)  has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and

   (b)  has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

   (2)  If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:

   (a)  the Secretary must notify the Tribunal in writing that this section applies to the document or information; and

   (b)  the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.”

10. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The Delegate’s decision

1. On 21 September 2011, the Delegate wrote to the applicant inviting him to comment upon information which indicated that he may not satisfy PIC 4020. In particular, the Delegate referred to that information as follows:

   “• DIAC investigators have analysed the outcome of investigations conducted into operations of Indian Fantasy Restaurant.

   • Information obtained as a results [sic] of these investigations indicate that fraudulent documentation was created and used to apply for and obtain a skills assessment from the relevant assessing authority.

   In work experience documentation provided by Satnam Singh, claims are made that work experience was conducted at the above business.”

2. On 10 October 2011, the applicant’s migration agent wrote to the Delegate requesting further and better particulars. On 25 October 2011, the applicant’s migration agent wrote to the Department indicating that a response to the letter of 10 October 2011 had not yet been received.

3. On 28 November 2011, the applicant’s migration agent provided comment in response to the Delegate’s invitation of 21 September 2011, attaching the statutory declaration of the applicant’s employer, Mr Avtar Singh Chatha (“the Employer”).

4. On 16 December 2011, the Delegate refused the applicant’s application for a visa. The Delegate was not satisfied on the basis of the evidence before him that the applicant was employed as claimed. The Delegate further indicated that there was evidence that the applicant had given, or caused to be given, a bogus document or information that was false or misleading in a material particular in relation to the application, and that the applicant therefore failed to meet PIC 4020(1)(a).

The MRT’s review and decision

1. On 29 December 2011, the applicant lodged an application for review of the Delegate’s decision by the MRT.  Enclosed with the application for review, the applicant included a copy of a letter, dated 29 December 2011, complaining of the failure of the Department to respond to the earlier request, made on 10 October 2011, for the provision of various information prior to making the decision to refuse the applicant’s visa.

2. On 3 July 2012, the MRT wrote to the applicant identifying information that may form part of the reason for affirming the decision under review, explaining its relevance and inviting the applicant to comment upon it (“the s.359A Letter”).

3. On 13 July 2012, the applicant wrote to the MRT requesting access to written material held by the MRT.

4. On 18 July 2013, the MRT responded to that request and informed the applicant that certain documents were excluded from release because they are subject to a certificate issued by the Department under s.375A of the Act where the disclosure would be contrary to the public interest (“the s.375A Certificate”). The letter otherwise enclosed materials that were not subject to the s.375A Certificate.

5. On 30 July 2012, the applicant responded to the s.359A Letter. The applicant provided to the MRT a number of statutory declarations in support of the applicant’s claimed employment and requested that if the MRT was unable to make a positive decision on the papers that the matter be set down for a hearing.

6. On 30 October 2012, the MRT wrote to the applicant informing him that the MRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 19 November 2012 to give oral evidence and present arguments.

7. On 19 November 2012, the applicant attended the MRT hearing with his representative and gave evidence.

8. On 10 December 2012, the applicant made a post-hearing submission and provided further documents to the MRT.

9. The MRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources, including those provided by the applicant.

10. The MRT noted that in his application, the applicant nominated his occupation as being a cook. When applying for a skills assessment by the Trades Recognition Australia (“the TRA”), the applicant was required to provide evidence of both formal training requirements and the completion of 900 hours of directly related work experience. To this end, the applicant provided a statement that he had worked at Indian Fantasy Restaurant in Newtown, Sydney, from 1 February 2008, accompanied by a reference letter from the Employer which stated that the applicant had worked at Indian Fantasy Restaurant from 1 February 2008 as a chef’s assistant and had completed over 900 hours of work experience in this role.

11. The MRT found that the reference letter from the Employer was given by the applicant to the TRA for the purpose of obtaining an assessment that his skills were suitable to satisfy the requirement in cl.485.221(1).

12. The MRT referred to evidence before it in the form of a report of the investigation conducted on 30 May 2011 by officers of the Department, which included a single page of photographs depicting head shots of ten people. The investigation involved an interview with the Employer and showing him the ten photographs contained in the document the subject of the s.375A Certificate. The MRT voiced serious concern that the Employer did not recognise the applicant’s photograph and did not indicate either “yes” or “no” when questioned whether the person whose image he was shown had completed 900 hours of work experience at the restaurant.

13. The MRT had regard to the Employer’s statutory declaration, dated 22 July 2012, provided by the applicant to the MRT. The Employer’s statutory declaration stated that he was unable to confirm the applicant’s employment when asked by officers of the Department because “when [the applicant] worked he was working part time volunteer as chef assistant in year 2008-2009. Being an owner I was not visiting restaurant every day so when I was asked [the applicant] wasn’t at the top of my head.” However, the MRT found that statement to be inconsistent with other evidence before it provided by the applicant.

14. The MRT did not accept that the applicant would not have been recognised by the Employer because he was the owner of the restaurant and not always present at the restaurant, if the applicant had worked for over 900 hours under the Employer’s supervision as claimed, even if only on occasions.

15. The applicant also submitted that the Employer may not have recognised his photograph because the applicant had changed his appearance. The applicant stated that he was clean shaven while working at the restaurant, and when told that the photograph depicted him as being clean shaven, contended that he was clean shaven at some times while working and other times was not. The applicant also made reference to altering the length of his hair, wearing a turban at various times and having gained some weight as possible reasons for the Employer not recognising his picture.

16. The MRT did not accept that the applicant’s facial hair or his claimed weight gain satisfactorily explained why the applicant was not recognised by the Employer. The MRT took into account the two year period between when the applicant claimed to have finished his work experience at the restaurant and the investigation by the Department. However, the MRT found that, given the applicant claimed to have completed 900 hours of work at the restaurant under the supervision of the Employer, it would have expected the Employer to remember the applicant’s likeness, if not his name.

17. The MRT formed the view that the evidence of the applicant and the Employer was questionable, as their evidence appeared to have changed throughout the review in what the MRT considered to be an attempt to deal with any problems as they arose. The MRT was also of the opinion that the evidence presented was not sufficient to explain why the Employer did not recognise the applicant’s photograph.

18. The MRT then considered the other evidence before it. It noted that of the statutory declarations before it, four were made by people who had not seen the applicant work at the restaurant and none of the declarations stated that the applicant worked at the restaurant for 900 hours. The MRT found that aside from the applicant’s own claims to have worked 900 hours at the restaurant and the Employer’s statutory declaration to that effect, there was little evidence and no contemporaneous material to corroborate the information given by the Employer to the TRA.

19. In this regard, the MRT was highly concerned that the Employer’s name was misspelt in the reference letter provided to the TRA. The explanation given at hearing for this was that the applicant had drafted the letter and that the Employer had simply signed it. The MRT was troubled as to whether the Employer had actually verified the contents of the letter, given that he had failed to notice the incorrect spelling of his own name. In the circumstances, the MRT found the reference letter was not reliable as evidence of the 900 hours claimed work experience. The MRT also considered the various statutory declarations provided by the applicant, but in the circumstances found them to be generally unreliable and placed little weight upon them.

20. Having regard to the lack of records of the applicant’s claimed work experience, the lack of acceptable corroborative material and the evidence before it, the MRT did not accept the applicant’s claim to have completed 900 hours of work experience as a chef assistant at Indian Fantasy Restaurant.

1. On the information before it, the MRT found that the Employer’s reference letter submitted by the applicant to the TRA contained false or misleading information, as the information that the applicant had completed 900 hours of work experience was false or misleading at the time it was given to the TRA.

2. The MRT found that the information in that letter was critical to obtaining the relevant skills assessment and was thus relevant to cl.485.221 of Schedule 4 to the Regulations. The MRT therefore found that there was evidence before it that the applicant had given, or caused to be given to a relevant assessing authority, information that was false or misleading in a material particular in relation to the application for a visa.

3. Accordingly, the MRT found that the applicant did not satisfy PIC 4020(1)(a).

4. The MRT then considered whether to waive the requirements of PIC 4020(1) pursuant to PIC 4020(4). However, the MRT was not satisfied that there were compelling circumstances that affected the interests of Australia or compassionate or compelling circumstances that affect the interests of an Australian citizen, permanent resident, or eligible New Zealand citizen to justify the grant of the visa.

5. The MRT therefore determined not to waive the requirements of PIC 4020(1).

6. The MRT concluded that the applicant did not satisfy PIC 4020 for the purposes of cl.485.224(a) of Schedule 2 to the Regulations. As the requirement for a skills assessment and the need to meet PIC 4020 also applied to Subclass 487 visas, the MRT found that the applicant would not satisfy PIC 4020 for the purposes of cl.487.228 of Schedule 4 to the Regulations for the same reasons.

7. Accordingly, the MRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Mr. Michael Jones, solicitor.

2. The applicant confirmed that he relied on the ground contained in his application filed on 11 February 2013 as follows:

   “1. The Tribunal denied the applicant procedural fairness, and acted in breach of sub-ss 357A(3) and 360(1).

   Particulars

   The Tribunal’s determination was based largely on the identification of a particular individual from a photograph. Although it had a copy of that photograph and referred to it at the hearing, it did not show the photograph to the Applicant. In applying the natural justice hearing rule in a manner that was fair and just, and in giving the Applicant an opportunity to give evidence and present arguments relating to the issues in the review, procedural fairness required the Tribunal to show the photograph to the Applicant.”

3. In the first respondent’s Outline of Submissions, the first respondent raised as a complete answer the effect of the s.375A Certificate. The first respondent contended that the s.375A Certificate prevented disclosure of the document containing the applicant’s photograph. The s.375A Certificate, dated 3 February 2012, is in the following terms:

   “I certify that, in accordance with s 375A of the Migration Act 1958, the disclosure, otherwise than to the Migration Review Tribunal of any matter or information contained in folios (99 – 105) of file number (BCC2009/522318) would be contrary to the public interest because:

   (a) folio 99-105 contains the personal information relating to individuals other than the review applicant.

   As s 375A applies to the documents/information identified above, the MRT must do all things necessary that the document or information is not disclosed to any person other than to a member of the MRT as constituted for the purposes of this particular review, pursuant to s375A(2)(b) of the Migration Act 1958.”

4. The applicant’s solicitor, Mr Michael Jones, submitted that the s.375A Certificate specifically excluded the personal information in the documents about the applicant as being contrary to the public interest.

5. However, the terms of the s.375A Certificate make clear that the MRT must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the MRT. Whilst it may well have been possible for the MRT to have blacked out the photographs of other persons contained in the document that had the applicant’s photograph, the document was otherwise caught by the s.375A Certificate.

6. The existence of a s.375A certificate has been found to override the obligation to provide the particulars of “adverse information” imposed by s.359A of the Act. In Davis v Minister for Immigration, Multicultural Affairs and Citizenship [2004] FCA 686 Dowsett J stated at [20]-[21]:

   “[20] Section 375A authorizes the Minister to certify that material should not be disclosed, other than to the Tribunal, upon the ground that such disclosure would be contrary to the public interest for any reason other than one of the reasons set out in s 375. In the event of such a certificate being issued, the Tribunal is obliged to do everything necessary to ensure that neither the documents containing the information, nor the information is disclosed to any person other than a member of the Tribunal constituted for the purposes of the review in question. The Tribunal has no discretion in the matter. Such material may, in some cases, also fall within par (b) or (c) of the definition of non-disclosable information" and therefore be exempted by par 359A(4)(d) from the operation of s 359A, depending upon the Minister’s reason for issuing the certificate. However the Minister may conceivably act upon a basis which does not fall within those paragraphs. In that case, par 359A(4)(c) would not exempt the material from the operation of s 359A.

   [21] It is curious that material which is the subject of a certificate under s 375A is not expressly excluded from the operation of s 359A. Nonetheless, the obligation to maintain secrecy imposed upon the Tribunal by s 375A is so specific that the obligation imposed by s 359A must give way to it. This would, in my opinion, be so, even in the absence of s 357A. However that section puts the matter beyond doubt. The obligation conferred upon the Tribunal by s 362A must similarly yield to that imposed by s 375A.”  (emphasis added)

7. Further, in Burton v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1455, Wilcox J noted that Dowsett J did not consider whether there was a distinction between the provision of “particulars of any information” that the Tribunal considers to be “a reason, or a part of the reason, for affirming a delegate’s decision” and the information itself. Wilcox J stated at [40]:

   “There is a real distinction. I think it is analogous to the distinction, familiar to all litigators, between particulars of a claim and the evidence that supports the claim. The command of s 375A (2)(b) is that the Tribunal ‘do all things necessary to ensure that the document or information is not disclosed’ otherwise than to the relevant Tribunal member. Provision of particulars about information need not reveal the information itself, and certainly need not involve access to any particular document. Take the example mentioned in argument. Suppose the Department has received a letter from a person who deposes to having seen a visa holder pay $5,000 to the relevant nominator on their wedding day. A valid s 375A certificate would prevent the Tribunal allowing the visa holder to have access to that letter, or providing detailed information about it, as would otherwise be the former visa holder’s right under s 362A. However, it seems to me s 375A would not prevent the Tribunal informing the former visa holder, by way of particulars of the information that could constitute a reason, that it was alleged that he or she had paid $5,000 to the nominator on that day. Such particulars would not reveal either the source or the detail of the information conveyed to the Department; they would allow the former visa holder to understand the nature of the case he or she needed to meet.” (emphasis added)

8. The substance of the adverse information, being the failure of the Employer to identify the applicant when shown the document containing the ten headshot photographs which included the applicant. That information was put to the applicant in writing in the s.359 Letter and explored with the applicant at the hearing.

9. The MRT described for the applicant that in the document subject to the s.375A Certificate, the applicant appeared unshaven. Whilst it may well have been possible for the applicant to request that a copy be made of that part of the document the subject of the s.375A Certificate, no such request was made by the applicant or his migration agent.

10. At the hearing, the applicant gave to the MRT other photographs of himself, including with a turban which he said he did not wear at the restaurant. As stated above, the MRT did not accept that the applicant’s facial hair or his claimed weight gain explained the reason why he was not recognised by the Employer in the photograph of the ten headshots. The MRT found that the Employer would have recognised the applicant if the applicant had, in fact, worked for him at the restaurant for at least 900 hours. The MRT did not accept the applicant’s explanation that he was not recognised simply because the Employer had a number of other volunteers whilst he owned the restaurant. Further, the MRT took into account that the investigation undertaken approximately 2 years after the applicant claimed to have finished work experience at the restaurant. However, the MRT found that the Employer, at least, would have at least remembered the likeness of the applicant, if not his name, if the applicant had completed more than 900 hours of work experience in 2008 and 2009, where the applicant claimed he was supervised directly by the Employer.

11. The MRT found the evidence of the applicant and the Employer to be “questionable” and that it appeared to have changed slightly throughout the review in an attempt to deal with problems in the evidence as they arose. The MRT stated that it had “serious concerns about the applicant’s claimed work experience.” The MRT also stated that it considered the other statutory declarations provided by the applicant in support of his claimed work experience and the evidence of the applicant’s witnesses in determining whether information that is false and misleading in a material particular in relation to a visa application was given to the TRA. The MRT then dealt with this evidence in some particularity and identified various concerns it had about that evidence.

12. The MRT noted that there were no other records of the applicant’s claimed work experience. Because of the concerns it had expressed, the MRT did not find the material provided by the applicant to be corroborative of the applicant’s claims to have worked 900 hours of work experience at the restaurant. The MRT placed more weight on the outcome of the Department’s investigation in which the applicant was not recognised by the Employer, because the investigation was undertaken unannounced and the Employer did not have forewarning to prepare for it.

13. In the light of its findings, the MRT found that the Employer’s reference letter submitted by the applicant contained false or misleading information, because the information contained in the Employer’s reference letter that the applicant had worked over 900 hours of work experience as a chef’s assistant was false or misleading at the time it was given to the TRA.

14. The MRT noted that, following the hearing, the applicant’s representative raised “serious concerns about the manner in which the investigations were carried out”. However, no concerns were outlined. In those circumstances, the MRT did not accept that the unidentified, unparticularised concerns were a reason why it should not rely on the outcome of the Department’s investigation. As stated above, the MRT preferred the evidence from the investigation to that subsequently provided by the applicant. It was entitled to do so for the reasons it gave.

15. In the circumstances, the MRT did not accept the applicant’s assertion to have completed 900 hours of work experience as a chef’s assistant at the restaurant.

16. Ultimately, the MRT was satisfied that the TRA relied on the Employer’s reference letter to issue the applicant with a successful skills assessment and found that the information in the letter was critical to obtaining a skills assessment and was therefore relevant to cl.485.221 of Schedule 2 to the Regulations. The MRT found that there was evidence before it that the applicant had given, or caused to be given, to a relevant assessing authority information that is false or misleading in a material particular in relation to his visa application.

17. Those findings were open to the MRT on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the MRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J at [20]).

18. Accordingly, the MRT found that, for the reasons given, the applicant did not satisfy PIC 4020(1)(a).

19. Further, pursuant to PIC 4020(4), the MRT considered whether it should waive the requirements of PIC 4020(1) and concluded for reasons given that it should not.

20. Those further findings and conclusions of the MRT based upon its earlier findings of fact arising from claims made by the applicant were also open to it on the evidence and material before it and for the reasons it gave.

21. The document containing the applicant’s photograph was a document that was caught by the s.375A Certificate. In the circumstances, there was no error on the part of the MRT in failing to give the document itself to the applicant for comment.

22. The information which was part of the reason for the MRT affirming the decision under review, namely, the failure of the Employer to recognise the applicant from the photograph containing the ten headshots, was given to the applicant and explored with him at the hearing. The MRT also put to the applicant the inconsistency that it found to exist in the level of supervision that the Employer stated he gave and the applicant’s evidence. As stated above, the MRT’s concerns in relation to the Employer’s statement that he did not recognise the applicant from the photograph during the Department investigation were clearly given to the applicant in the s.359A Letter and at the hearing.

23. The MRT’s concerns arising from inconsistencies that it found to exist, were not information that the MRT was required to give to the applicant. It is well established that the MRT’s disbelief of an applicant’s evidence arising from inconsistencies is not “information” for the purposes of s.359A of the Act. “Information” also does not include the MRT’s subjective appraisals, thought processes and determinations, defects, gaps, or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

24. I do not accept that the applicant was denied an opportunity to give evidence that the photograph upon which the MRT relied was not of him. As stated above, there was every opportunity for the applicant or his migration agent to ask to see the photograph of the applicant only. No such request was made. In such circumstances, there was no obligation on the MRT to create a further document containing a photograph only of the applicant.

25. Whilst there was an exchange between the MRT Member and the applicant in which the applicant raised the possibility that the Department’s photograph of him was the wrong photograph, the applicant’s concern was directed to whether or not the MRT Member had himself seen the photograph that the Department had shown to the Employer. The MRT acknowledged that the photograph shown by the Department did not look exactly the same as the photograph provided by the applicant at hearing. However, the only reason was because the applicant was slightly turned to the side in one of the photographs.

26. There is not the faintest suggestion in the transcript of the discussions between the MRT Member and the applicant that the MRT at any time had a concern that the photograph in the document, the subject of the s.375A Certificate, was not of the applicant. Whilst the MRT did not make a specific finding to that effect, in my view the proper inference to be drawn from the evidence before the Court is that such a finding was subsumed in the MRT’s findings of greater generality. Those findings are that there was evidence that the Employer did not recognise a photograph of the applicant; that the applicant was not employed for at least 900 hours; and, that the applicant had given or caused to be given to a relevant assessing authority information that was false or misleading in a material particular in relation to a visa application (see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47], per French, Sackville and Hely JJ). The prospect of those findings was clearly foreshadowed to the applicant in the s.359A Letter.

27. As stated above, the MRT plainly invited the applicant on a number of occasions to give evidence and present arguments on the issue of the failure of the Employer to recognise the applicant in the document of photographs, the subject of the s.375A Certificate, and shown to the Employer by the Department. Although the applicant did not request to see the photograph, the MRT invited the applicant to comment on the MRT’s description of the photograph. The MRT also put to the applicant that whether he was clean shaven or not in the photograph, was not relevant, given his evidence that sometimes he was clean shaven at work and sometimes not.

28. In the circumstances, I am satisfied that the invitation given to the applicant pursuant to s.360(1) of the Act was meaningful, in the sense that the applicant was provided with a real chance to present his case (see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [61] per Hayne, Kiefel and Bell JJ). Further, the MRT conducted a fair hearing in accordance with its obligations pursuant to ss.357A(3) of the Act and did not deny the applicant procedural fairness.

29. Accordingly, none of the applicant’s complaints about the decision of the MRT establish jurisdictional error on the part of the MRT. 

30. At the conclusion of the hearing the applicant’s solicitor, Mr Jones, sought leave to amend the grounds of the application to include a ground in the following terms:

    “If the MRT believed that the s.375A Certificate prevented it from showing the photograph to the applicant then it was incorrect to hold that belief.”

31. No further submissions were made by Mr Jones in support of the proposed new ground. The first respondent objected to leave being given to the applicant on the basis that the proposed new ground had no, or no reasonable, prospects of success because it is irrelevant whether or not the MRT held that belief. I agree with the submissions of the first respondent. Accordingly, leave was refused to the applicant to amend the application, filed on 11 February 2013, to rely on the proposed new ground.

Conclusion

1. A fair reading of the MRT’s decision record makes clear that the MRT understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The MRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The document of ten photographs, including one of the applicant, was the subject of the s.375A Certificate and therefore was unable to be given to the applicant. There was no denial of procedural fairness in the failure of the MRT to give the applicant a document that was subject of a s.375A Certificate in circumstances where full particulars of the relevance of the information in relation to the photograph were given to the applicant. The relevant information was that the photograph of the applicant was not recognised as the applicant by the Employer.

1. The MRT made findings based on the evidence and material before it. Those findings of fact were open to the MRT on the evidence and material before it and for the reasons it gave. A fair reading of the MRT’s decision record makes clear that the MRT reached conclusions based on the findings made by it and to which it applied the correct law.

2. In the circumstances, the MRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The MRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  18 March 2014