Singh v Minister for Home Affairs
[2019] FCCA 2737
•27 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & ORS v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 2737 |
| Catchwords: MIGRATION – Student (Temporary) (Class TU) (Subclass 572) visa – decision of the Administrative Appeals Tribunal – whether Tribunal was required to put information to the applicants – whether the Tribunal denied the applicants procedural fairness – jurisdictional error established – writs issued. |
| Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s.2A Migration Act 1958 (Cth), ss.359A, 368D, 422B, 424A, 476 Migration Regulations 1994 (Cth), cl.572.223 of sch.2 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 Bala v Minister for Immigration & Border Protection [2019] FCA 600 Craig v State of South Australia (1995) 184 CLR 163 |
| First Applicant: | SATWINDER SINGH |
| Second Applicant: | RANJANA RANJANA |
| Third Applicant: | RUHANI CHANDER |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 162 of 2018 |
| Judgment of: | Judge Kendall |
| Hearing dates: | 24 May and 16 August 2019 |
| Date of Last Submission: | 16 August 2019 |
| Delivered at: | Perth |
| Delivered on: | 27 September 2019 |
REPRESENTATION
| First Applicant: | In person (and on behalf of the second applicant and third applicant) |
| Counsel for the First Respondent: | Ms S J Oliver |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
A writ of certiorari issue quashing the decision of the second respondent dated 27 February 2018.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicants’ application for review of the decision of a delegate of the first respondent dated 9 November 2015 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 162 of 2018
| SATWINDER SINGH |
First Applicant
| RANJANA RANJANA |
Second Applicant
| RUHANI CHANDER |
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The first applicant, a citizen of India, arrived in Australia on 20 January 2010 as the holder of a Student (Temporary) (Class TU) (Subclass 572) visa.
The first applicant then applied for a further Student (Temporary) (Class TU) (Subclass 572) visa (the “visa”) on 21 September 2015.
The second and third applicants are the first applicant’s wife and child. They were included in the application for the visa as members of the first applicant’s family.
A Ministerial delegate refused to grant the visa on 9 November 2015. The delegate found that the first applicant was not a genuine applicant for temporary entry and stay as a student in Australia and, as such, did not meet cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).
On 16 November 2015, the applicants applied to the Administrative Appeals Tribunal (the “Tribunal”) for a review of the delegate’s decision.
On 27 February 2018, the Tribunal affirmed the delegate’s decision to refuse the first applicant’s application for the visa. In effect, the Tribunal determined that, having considered the applicants’ circumstances, immigration history, and other matters that it considered relevant, the Tribunal was not satisfied that the first applicant intended genuinely to stay in Australia temporarily as per cl.572.223(1)(a) of the Regulations.
By application filed in this Court on 27 March 2018, the applicants now seek judicial review of the Tribunal’s decision dated 27 February 2018.
This proceeding is brought pursuant to s.476(1) of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show jurisdictional error on the part of the Tribunal.
The Tribunal’s Decision
The Tribunal began by outlining the history of this matter, as follows:
2.The primary applicant (the applicant) first arrived in Australia on 20 January 2010 on a TU subclass 572 Student visa valid until 15 March 2012 and was granted a subsequent TU572 Student visa, which expired on 26 September 2015. On 21 September 2015 the applicant applied to the Department of Immigration for another TU572 to undertake a Diploma of Marketing (7 September 2015 to 20 March 2016) and Advanced Diploma of Marketing (11 April 2016 to 9 April 2017). The delegate decided to refuse to grant the visas on 9 November 2015.
3.At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 –574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).
4.According to the decision record, a copy of which the applicant provided to the Tribunal for the purposes of the review, the delegate refused to grant the visas because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because she was not satisfied that the applicant genuinely intended a temporary stay in Australia. Among other things, the delegate was concerned about the value of his proposed courses to the applicant’s future in light of his slow course progression; the fact that since arriving in Australia as a student in 2010 he had exclusively pursued courses at the Vocational Education and Training level in different fields; and had spent an inordinate time onshore. She concluded that the applicant’s previous education and immigration history was indicative of someone utilising the Student visa program to maintain ongoing residence in Australia.
5.The applicants applied to the Tribunal for a review of this decision on 16 November 2015. They were represented in relation to the review by their registered migration agent.
6.On 25 October 2017, the applicant’s migration agent provided to the Tribunal a submission in support of his claims, including a current Confirmation of Enrolment (COE) for a Diploma of Human Resources Management (10/10/2017 to 30/09/2018) created on 10/10/2017; certificates of completion and academic transcripts for Diploma of Marketing, Advanced Diploma in Business, Diploma of Nursing, Diploma of Dental Technology and a letter from Technical College of Western Australia (TCWA) dated 10 October 2017 confirming that the applicant was a full time fee paying international student and had successfully completed all the units in Advanced Diploma of Marketing; documents relating to his Nursing registration; published material regarding health care in India and employment opportunities for nurses; a letter from the applicant’s employer confirming his employment as a carer from August 2011 to June 2016; and a statement addressing the Genuine Temporary Entrant criterion.
7.The applicant appeared before the Tribunal by videoconference between Perth and Sydney on 31 October 2017 to give evidence and present arguments.
8.At hearing the applicant’s agent provided a letter explaining gaps in his enrolment in 2012 and 2017. With regard to the gap in 2017, the letter stated that, after completing his Advanced Diploma of Marketing in April 2017, the applicant tried to meet the English language requirement to enter Edith Cowan University, which he achieved in August 2017. As he was ‘not able to immediately arrange a Confirmation of Enrolment, but mindful of visa conditions decided to enrol in the Diploma of Human Resource Management (HRM) to maintain an ongoing Certificate of Enrolment and college attendance’.
9.On 6 November 2017, the applicant’s migration agent provided a post-hearing submission, clarifying a number of issues, including that the Certificate III courses in Aged Care and Community Care which the applicant completed were online entry level qualifications associated with the aged care industry, not registered courses with COEs. Also provided were copies of supporting documents, including a letter from the TCWA dated 3 November 2017 regarding the applicant’s enrolment in the Advanced Diploma of Marketing and a new COE for that course (30/11/2016 to 26/02/2017) and email correspondence relating to the applicant’s past enrolment in the Diploma of Nursing.
The Tribunal then outlined the relevant legislative provisions, as follows:
11.Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.
12.The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:
(1) The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
(b) …
13.In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:
•the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;
•the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;
•if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and
•any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.
14.The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.
The Tribunal then outlined the evidence before it, as follows:
15.At the hearing, the Tribunal discussed with the applicant the reasons his Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that the primary purpose of a Student visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant his circumstances in India and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.
16.The applicant told the Tribunal that he came to Australia in January 2010 after completing a degree in pharmacy in India to study a Diploma of Laboratory Technology, but changed courses to study a Diploma of Dental Technology and then Enrolled Nursing. He wanted to study for a Bachelor of Nursing but had to continue with Diploma courses in line with his subclass 572 Student visa. He said he had also completed an Advanced Diploma of Business, a Diploma of Marketing and, most recently, an Advanced Diploma of Marketing in April 2017, although he did not provide a certificate of completion. Instead, the applicant submitted a letter from TCWA dated 10 October 2017 which stated that he had completed all the units in the course.
17.Concerned about various inconsistencies in the abovementioned letter, including details of the logo and letterhead, the Tribunal wrote to the TCWA on 1 November 2017 seeking to verify if it had issued the letter to the applicant. In spite of follow-up telephone calls and undertakings by TCWA that they would respond to the Tribunal, no response has been received. The Tribunal’s concern about the documents submitted by the applicant in relation to his Advanced Diploma of Marketing was compounded by another letter from TCWA dated 3 November 2017, submitted to the Tribunal by the applicant’s migration agent on 6 November 2017. This letter appeared to contain further and different inconsistencies in its letterhead. As the Tribunal has been unable to verify the documents submitted, it gives them no weight and assesses them not to be genuine. Under these circumstances, and noting that the applicant did not provide a certificate of completion for the Advanced Diploma of Marketing at TCWA, the Tribunal does not accept that he completed the course, as claimed.
18.Based on the COEs submitted by the applicant, the next course in which he enrolled was a Diploma of HRM on 10 October 2017. The applicant claimed that, in the intervening six months since completing his Advanced Diploma of Marketing in April 2017, which the Tribunal does not accept he did, he tried to perfect his English in order to apply to Edith Cowan University for a Bachelor of Nursing, which he told the Tribunal he was unable to do because of his Visa risk assessment. As discussed with the applicant, in the Tribunal’s view, he only applied for the Diploma of HRM course after receiving his hearing invitation because needed to be enrolled, a point borne out in the agent’s explanation of gaps in enrolment at paragraph.
19.As discussed with the applicant, the Tribunal is concerned that he has now been in Australia for 8 years, in which time he has completed a relatively small number of registered courses, all of them in the Vocational Education and Training sector. The applicant is now proposing that, on completion of his Diploma of HRM, he wishes to undertake a Bachelor of Nursing degree. This would extend his time in Australia for another 2-3 years and raises further doubt as to the temporary nature of his stay in Australia as a student.
20.The applicant told the Tribunal that, on completion of his studies he intends to open an aged care home somewhere in his home area of Bangar in the Punjab, claiming that there were huge opportunities in this sector in India as the need was there, but there were no aged care facilities. However, the applicant provided no details as to the business operation he envisaged or its feasibility. He stated that he might start with ‘home to home’ care, with the financial support of his family, but later said he needed proper skills and resources and a good partnership with an Australia organisation. He admitted that he did not have a concrete financial or business plan for his venture.
21.In a discussion of his circumstances in Australia and India, the applicant told the Tribunal that he had worked in aged care and was presently a part-time taxi driver; that his wife and six year old daughter were his only family in Australia and they had no property here. By contrast, his parents, brother and family were in India and they all had shares in the family shop in India. While the Tribunal accepts that the applicant and his wife have family ties in India, it is not convinced that in themselves they provide sufficient incentive for them to return home, especially given the length of time they have lived in Australia as a family unit. Significantly too, the applicant has, by his own evidence, had consistent employment during most of his time in Australia.
On the basis of the above, and having considered the first applicant’s circumstances, immigration history, and other matters it considered relevant, the Tribunal determined that it was not satisfied that the first applicant intended genuinely to stay in Australia temporarily. Accordingly, he did not meet cl.572.223(1)(a). The Tribunal found that the first applicant did not meet an essential requirement of cl.572.223. Further, it was noted that, with the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement and, for the reasons it had provided, the first applicant did not meet the requirements of these subclasses. Further, in respect of Subclass 580 (Student Guardian) visa, the Tribunal found that there was no material before it that suggested that the first applicant met the prescribed criteria for that subclass.
The delegate’s decision under review was, accordingly, affirmed. As the first applicant did not meet the primary criteria and the second and third applicants had applied solely as the spouse and child of the first applicant, it followed that the second and third applicants did not meet the secondary criteria.
Proceedings before this Court
This matter was heard over two days: 24 May 2019 and 16 August 2019.
The Court had before it a Court Book (“CB”) numbering 160 pages and two sets of written submissions from the Minister: the first dated 2 May 2019 and the second dated 10 July 2019.
The applicants raised seven grounds of review in their application. Those grounds, without amendment, provide as follows:
1. My visa application was refused on the grounds that I do not meet the “Genuine Temporary Intent” clause of the visa requirements.
2. The delegate of the Minister as well as Hon. Tribunal member did not take into consideration the fact that I have completed all the courses that I have enrolled myself in.
3. Hon. Member did not give me any opportunity to provide any additional documents and other form of evidence since they refused to grant any more time and gave oral judgement at the end of the hearing.
4. If I am not granted the visa, I shall not be able to complete my education and shall not be able to make a good career. I have always been a good student and never breached any of my visa conditions.
5. I am not aware about what transpired between the Department and my Cricos Educational Provider about the authenticity of the certificate and the logo etc. In any case I cannot be held responsible for any document I have provided to the Department since I only FORWARDED the documents that I received from the concerned organisations.
6. I feel that I have been treated as a scapegoat in the matter and was blamed and “ACCUSED” for no fault of mine.
7. To sum up, I request the Hon. Justice of the Federal Court to decide my case taking into consideration all the circumstances in the matter and grant me justice.
The judicial review application was accompanied by an affidavit sworn 13 March 2018. That affidavit states:
That the Hon. Tribunal did not give me an opportunity to provide any further evidence to prove my genuine temporary intent. The Hon. Tribunal also did not take into consideration that I have studied and completed my Advanced Diploma on grounds that the logo of the Educational Institution is incorrect, which is not just.
I therefore feel that I was deprived of natural justice since the Hon. Tribunal did not consider my case of being a genuine student and allow me to complete my education.
The tribunal also did not consider the fact that my career shall be ruined if I have to go back to my country without completing my education in Australia.
By orders of this Court dated 25 May 2018, the applicants were afforded an opportunity to file an amended application, any supporting affidavits and an outline of submissions prior to the hearing. The first applicant filed a further affidavit affirmed on 13 July 2018.
The first applicant’s second affidavit, without amendment, provides as follows:
I, Satwinder Singh … make oath and say / affirm:
1. That the Hon. Tribunal did not give me an opportunity to provide any further evidence to prove my genuine temporary intent. The Hon. Tribunal also did not take into consideration that I have studied and completed my Advanced Diploma on grounds that the logo of the Educational Institution is incorrect, which is not just. I have enclosed all the certificates of my completion of education for your kind reference.
2. I therefore feel that I was deprived of natural justice since the Hon. Tribunal did not consider my case of being a genuine student and allow me to complete my education. I have enclosed my enrolment letter from WAIFS for advanced diploma of community sector management. This course is very essential for me for my career. which shall be ruined if I have to go back to my country without completing my education in Australia.
3. The only reason for my slow progress in my education was the closure of the educational institution; however, besides that I have completed all my courses and therefore I claim to be a genuine student. My only intention to stay in Australia is to complete my education and then go back to my home country and start my own business. Kindly also consider the fact that the future of wife and child also depends on my career. I therefore urge your Hon. Court to kindly grant me an opportunity of natural justice and grant me the necessary visa.
The first applicant did not annex the materials he refers to in paragraph 1 and 2 of the second affidavit. They were, however, forwarded to the Registry as correspondence.
The applicants appeared unassisted before this Court. The first applicant spoke on behalf of his family.
Noting the comments of the Federal Court in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7], the Court gave the first applicant an opportunity to elaborate/particularise the grounds of review and outline any concerns he might have with the Tribunal’s decision.
The Court first explained to the first applicant that it could only address the issue of jurisdictional error. It was noted that the possible categories of jurisdictional error are not exhaustive and may sometimes overlap. It was explained that for migration decisions of this sort, they most commonly include the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]-[17]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicants the visa they seek. Rather, the role of the Court is limited to determining if the Tribunal made a material error in arriving at the decision it had on the basis of the materials and evidence that were before it: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this backdrop, the first applicant stated, in effect, that he believed the Tribunal made the decision it did because the Technical College of Western Australia (the “College”) did not respond to the Tribunal and that “that was not his fault”. He was not asked by the Tribunal to contact the College and enquire why they were not responding. Further, at no time during the Tribunal hearing did the Tribunal raise with him the fact that the College had been contacted or that it had concerns about the authenticity of the correspondence received from the College.
These oral submissions are relevant to ground 5 and will be discussed further below.
In light of what the first applicant stated in the hearing on 28 May 2019, and following an exchange with the Minister’s Counsel, the first applicant was given an opportunity to provide a transcript of the Tribunal hearing. He did so on 21 June 2019. The applicants also had an opportunity to file further written submissions but did not do so. The Minister filed further submissions on 10 July 2019. The Court will discuss these written submissions below in relation to ground 5.
Consideration
Ground 1
1.My visa application was refused on the grounds that I do not meet the “Genuine Temporary Intent” clause of the visa requirements.
Ground 1 is simply a statement of fact. It does not disclose error and will not be analysed further.
Ground 2
2.The delegate of the Minister as well as Hon. Tribunal member did not take into consideration the fact that I have completed all the courses that I have enrolled myself in.
Insofar as this complaint relates to the delegate’s decision, it is well established that this Court has no jurisdiction to review the delegate’s decision. The Court is confined to reviewing the Tribunal’s decision for jurisdictional error: s.476 of the Act.
It is true that the Tribunal did not accept that the first applicant had completed the Advanced Diploma of Marketing. Its reasons for doing so were discussed in its decision at [17]. The Court will return to this in more detail when discussing Ground 5.
Suffice to observe that, in respect of ground 2 generally, it is clear that the Tribunal did consider whether the first applicant had completed all of the courses he had enrolled in. That it did not find that the first applicant had completed all these courses is, however, a different matter.
The Tribunal clearly considered the evidence and materials, including the confirmation of enrolments, certificates of completion and academic transcripts and, seemingly, accepted that the first applicant had completed all of those courses, but for one. The Court notes that:
a)at [6] the Tribunal noted that it had been provided with certificates of completion and academic transcripts for a number of courses;
b)at [16] the Tribunal discussed the first applicant’s evidence of his course enrolments and completions; and
c)at [19] the Tribunal acknowledged that the first applicant had “completed” a number of courses. It also noted this was a “relatively small number” of courses to complete in the 8 year period, but nonetheless accepted the courses had been “completed”.
As has been indicated, the Tribunal did consider if the first applicant had completed the courses he had enrolled in and it was satisfied he had done so in all but one instance (discussed below).
Ground 2 must, accordingly, fail.
Ground 3
3. Hon. Member did not give me any opportunity to provide any additional documents and other form of evidence since they refused to grant any more time and gave oral judgement at the end of the hearing.
Although not entirely clear, the Court assumes that ground 3 is an allegation that the first applicant was denied procedural fairness because he was not given an opportunity to provide further evidence and because the Tribunal gave an oral decision.
In relation to the claim that the applicants were unable to provide additional documents, the Court notes:
a)on 24 October 2017, the applicants’ representative provided a number of documents including:
i)a current Overseas Student Confirmation of Enrolment;
ii)a letter confirming the first applicant was currently enrolled as a full time, full fee paying International student;
iii)documents evidencing past studies in Australia;
iv)explanation of gaps associated with enrolment; and
v)a Genuine Temporary Entrant Statement;
b)on 31 October 2017 a further statement was provided that explained gaps in the first applicant’s study and providing evidence of an English competency test;
c)on 6 November 2017 further documents were provided to the Tribunal including as follows:
i)two certificates of completion for two courses;
ii)a letter from the College dated 3 November 2017; and
iii)a Confirmation of Enrolment for the Advanced Diploma of Marketing; and
d)on 6 November 2017 the applicants’ representative requested a copy of the audio transcript and on 7 November 2017 the Tribunal provided the audio recording of the hearing that occurred on 31 October 2017.
Putting aside what is said below in relation ground 5, the applicants appear to be misguided in relation to ground 3.
First, the Tribunal did not give an oral judgment at the end of the hearing. The Tribunal hearing occurred on 31 October 2017. The Tribunal’s decision was made on 27 February 2018. Even if the Tribunal did give oral reasons (which it evidently did not do) the Tribunal is empowered under s.368D of the Act to do so and doing so does not indicate bias or an absence of procedural fairness: SZANH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1280.
Second, the applicants’ representative provided further evidence and documents after the hearing and the Tribunal explicitly referred to this at [9]. Clearly, there was an opportunity to provide additional documents and other evidence. The Court notes that the Tribunal’s decision was not made until 27 February 2018.
Third, there is nothing before this Court to suggest the Tribunal refused to grant more time for the applicants to provide further documents.
In the absence of a request for further time it cannot be argued that it was unreasonable for the Tribunal not to have done so given the relevant statutory context here (see s.2A of the Administrative Appeals Tribunal Act 1975 (Cth)).
Ground 3, accordingly, fails.
Ground 4
4. If I am not granted the visa, I shall not be able to complete my education and shall not be able to make a good career. I have always been a good student and never breached any of my visa conditions
While sympathetic to the concerns raised here, no jurisdictional error is highlighted.
It is not the Court’s role to determine or consider what will happen if the applicants are not granted the visa.
The Court has no reason to doubt that the first applicant is a good student and has not breached his visa conditions. Nonetheless, this is irrelevant to the matters the Court is required to consider on judicial review.
Ground 4, accordingly, also fails.
Ground 5
5. I am not aware about what transpired between the Department and my Cricos Educational Provider about the authenticity of the certificate and the logo etc. In any case I cannot be held responsible for any document I have provided to the Department since I only FORWARDED the documents that I received from the concerned organisations.
It was clear after hearing the first applicant’s submissions in relation to ground 5 that his concerns relate broadly to whether he was afforded procedural fairness. In this context, the concerns relate to what was stated at [17] of the Tribunal’s decision – i.e., that there were inconsistencies in the documents in relation to the appearance of the letterhead etc., such that the documents were not genuine. It was noted that the Tribunal did not ask the first applicant to comment about the genuineness of the documents or indicate that it had concerns about the genuineness of documents generally.
The Court drew the parties’ attention to the decision of French J (as he then was) in WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 (“WAJR”).
Counsel for the Minister filed extensive written submissions about whether WAJR applied to the facts of this case.
Given the significance of the decision in WAJR to the facts of this case, WAJR warrants detailed analysis here.
In WAJR, the appellant had appeared before the Refugee Review Tribunal for review of a decision of a Ministerial delegate that refused him a protection visa. The Tribunal ultimately affirmed the delegate’s decision not to grant a protection visa and that decision was, in turn, upheld by a judge of the then Federal Magistrates Court. The matter was then appealed to the Federal Court.
In WAJR (as relevant to this matter), in the course of examination by the Tribunal the appellant said he had a letter which would support his claims for protection.
The Tribunal made adverse findings in respect of the appellant’s credibility. Specifically, it said:
52.Notwithstanding the written claims made by the applicant and in the records of several interviews, the applicant’s evidence at the hearing was so generalised and vague, that I am unable to accept that it was credible or of any veracity. The applicant was unable or unwilling to articulate any specific detail of his claims at the hearing, to describe what his activities were with the UNP or the what, when, where, why or how the incidents which he claimed to have happened did happen. In light of this evidence, I am unable to accept that the applicant suffered persecution by reason of his political opinion in Sri Lanka or that he has a real chance of suffering persecution by reason of his political opinion if he was to return to Sri Lanka.’
The Tribunal also expressed ‘grave doubts’ that the appellant was who he claimed to be.
In relation to documents produced by the appellant in support of his claims, the Tribunal expressed ‘grave doubts’ about their veracity and credibility.
For the most part these documents were purportedly from party allies and politicians which merely reiterated the appellant’s claims in general terms and in much the same words and terms. The Tribunal said:
58. In light of his vague and generalised evidence, and his complete lack of any specific details, I am unable to accept that the applicant is, or ever was, a son of a UNP politician, a member of the UNP, had any association with the UNP or was a chairman of a UNP youth association. I am of the view that the applicant has fabricated his claims of such an association to provide for himself the profile of a refugee.’
Before French J, the applicant’s amended grounds relevantly provided:
Ground 2
The Learned Primary Federal Magistrate erred in holding that the Tribunal did not commit a jurisdictional error in rejecting the genuineness of letters put before the Tribunal by the appellant
Whereas the Learned Primary Federal Magistrate ought to have held that the Tribunal failed to accord the appellant procedural fairness, in that:
(a)the matters which caused the Tribunal to reject the genuineness of letters put before the Tribunal by the appellant were not raised with the appellant by the Tribunal so that he might be heard on those matters;
(b)the matters on which the Tribunal rejected the letters may have been capable of explanation if those matters had been put to the appellant.’
His Honour outlined the relevant statutory framework as follows:
21.Section 420 of the Migration Act provides:
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.’
22.Section 422B of the Act, which appears at the commencement of Division 4 of Part 7 relating to the ‘Conduct of Reviews’ by the Tribunal, provides:
(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 416, 437 and 438 of Division 7A, in so far as they relate to this Division, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.’
23.Section 424A, which appears in Division 4, provides:
‘(1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, 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; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The information and invitation must be given to the applicant:
(a) except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person.
(3)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; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.’
24.Section 425 provides:
(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.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3)If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.’
It is noted that while His Honour was referring to statutory provisions in pt.7 of the Act, the same provisions are found in pt.5 of the Act. It is the provisions in pt.5 of the Act that apply to this case. The principles referred to in WAJR apply here.
In relation to ground 2, His Honour noted (at [47]) that the Tribunal, in its reasons for decision, referred to documents produced by the appellant in support of his claims. The Tribunal said:
I have grave doubts about their veracity and credibility. For the most part, these letters, purportedly from party allies and politicians, merely reiterate the applicant’s claims in general terms and in much the same words and terms. Most of the letters are typed in the same font and typeface, notwithstanding that they purport to by different authors and to be remote in time and space. (sic) In light of this evidence, I am unable to accept that they are credible or have any veracity. Consequently I am unable to accept the genuineness of these documents and accordingly put no weight on them.
Before His Honour, Counsel for the appellant submitted that at no stage did the Tribunal put to the appellant any basis upon which it might reject the authenticity of the letter. Moreover, it was argued, the assertion that most of the letters were typed in the same font and type-face was not sustainable when the letters are inspected.
His Honour noted that the question raised by ground 2 was whether there was a failure of such procedural fairness as was required in the circumstances.
His Honour began by finding (at [49]) that s.424A of the Act did not apply to this case, holding that the formation of a view about the evidence by the Tribunal is not ‘information’ of the kind contemplated in that section: “were it otherwise, it could be argued that the section would require the Tribunal to advise an applicant of its adverse conclusions generally in advance of its decision for the purpose of inviting comment upon them.”
His Honour then noted that, having so found in relation to s.424A, there are two issues to be considered. The first was whether the failure to invite comment on the Tribunal’s conclusions in respect of the letters would amount to a failure of procedural fairness absent s.422B. The second was whether s.422B so confines the application of procedural fairness that it is not available to support the complaint made by this appellant.
As to the first question, His Honour noted that there had been two recent decisions of the Full Court of the Federal Court in which issues of procedural fairness involving Tribunal findings about tendered documents arose: WACO v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCAFC 171 and WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 (“WAEJ”).
His Honour referenced these cases as follows:
52.In WACO an Iranian national claimed to have a well-founded fear of persecution if returned to Iran because of his involvement with a reformist cleric, Shirazi. After the hearing before the Tribunal the applicant’s advisers had provided translated copies of two letters which, if genuine, corroborated the claim of involvement with Shirazi. One purported to be a letter from Shirazi himself to the applicant’s father thanking him for raising a son who sacrificed himself to preserve the true meaning of the Koran. The other was from a third party testifying to his relationship with Shirazi. The Tribunal found the applicant not to be a credible witness. It was not prepared to accept either of the letters tendered to it as genuine. It found that they had been prepared in order to bolster the applicant’s claims. At no time had the Tribunal given any indication to the applicant that it doubted their genuineness, nor did it invite him to comment on that issue.
53.The Full Court held that the letters were ‘central to the [applicant’s] claim in so far as they were tendered as evidence of his relationship with the Ayatollah Shirazi’ – at [39]. Their Honours held that the question whether the letters were genuine did not directly depend upon the evidence of the applicant. A finding that they were forgeries could turn upon the applicant’s credit in so far as it was a finding that the letters had been concocted to advance the applicant’s case. If this were so, fairness would require that before a finding of forgery were made the person so accused should be given the opportunity of answering it. Their Honours said:
‘A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations.’
Where the finding of fact did not turn upon the credibility of the applicant and there was nothing on the face of the documents themselves to alert the decision-maker that they were forgeries, it was likewise inherently unfair that the decision-maker conclude that they were not genuine without affording the person affected by that conclusion the opportunity of dealing with it. Their Honours said at [55]:
‘Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have relisted the matter and have arranged for the [applicant] to be apprised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary.’
Their Honours held that the applicant had succeeded in showing that the purported decision of the Tribunal was affected by jurisdictional error in that it had not afforded natural justice to the applicant by failing to give him the opportunity to answer the suggestion that the letters tendered by him after the hearing were not genuine.
54.WAEJ also concerned an Iranian national. He claimed to have been a member of a branch of the Marz-e-Porgohar, also known as the Movement for Freedom, and that the group had been involved in student demonstrations in July 1999. His job in the group had been to distribute literature. He claimed to have been arrested and detained for interrogation by plain clothes officers of the security organisation, Ettela ‘at. Although subsequently released on bail on reporting conditions he was to be summoned to appear in court. He fled Iran allegedly to avoid that event.
55. One of the matters complained of in the Full Court was that there had been a breach of the rules of natural justice in the failure of the Refugee Review Tribunal to give the appellant the opportunity to deal with concerns held by the Tribunal but not disclosed to him regarding the genuineness of a document submitted by the appellant to the Tribunal in support of his application. This document was an email purportedly from a Mr Farahanipour as Executive Director of Marz-e-Porgohar, forwarded at the request of parties assisting the appellant. The email stated that following the student uprising of 1999 many political activists such as the appellant and the author of the email were imprisoned and even after being released had been under constant surveillance and threat of government agents. The Tribunal made the comment that after having regard to the unsatisfactory nature of the appellant’s evidence and the ‘timing of the document’ it was not satisfied as to its genuineness. The Full Court said (at [52]):
‘On its face the foregoing was a statement by the RRT the document was not authentic. This was not a case where dishonesty on the part of the appellant had been demonstrated thereby providing support for the further conclusion that the appellant had arranged for the preparation, and tender of, a non-authentic, or forged document which the RRT could disregard. There was no finding by the RRT that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis.’
Their Honours went on to say that if in truth the RRT did not believe that the document was authentic it should have advised the appellant and his solicitor accordingly and allowed the appellant, through his solicitor, to make any inquiries that were necessary to enable the appellant to produce further material to the Tribunal or to satisfy the Tribunal in respect of the document.
Applying the principles that arise from those two cases, French J then assessed those principles in in light of the case before him:
56.It may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents. But where as here, there is a clear implication in the Tribunal’s reasoning by reference to the appearance of the documents, that they were concocted for the purposes of the application, then on the authorities I have referred to, procedural fairness would require an opportunity be given to the appellant to comment. I took a similar approach in WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912.
57.The question that follows is whether s 422B precludes the application of procedural fairness in this context. Section 422B provides that Division 4 of Part 7 is ‘taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’. The ‘natural justice hearing rule’ is not defined. It is not necessary for present purposes to attempt an exhaustive definition. It can be said, for present purposes, to reflect those aspects of the requirements of procedural fairness that relate to the presentation of an applicant’s claims to the Tribunal. Division 4 therefore may be taken to be exhaustive of those aspects of the requirements of procedural fairness ‘in relation to the matters it deals with’. This latter phrase imports a somewhat more specific limitation upon the scope of procedural fairness than might have been achieved by a global reference to the conduct of reviews by the Tribunal. The ‘matters’ Division 4 deals with are therefore to be identified by reference to its particular provisions and not by reference to its general subject matter, ie the conduct of reviews by the Tribunal. Section 424A, the closest relevant provision, which relates to the opportunity to comment on adverse information, does not deal with the matter raised in this case. Nor does any other provision with the possible exception of s 425.
58.Section 425 requires the Tribunal to invite an applicant to give evidence and to present arguments relating to the issues arising in relation to the decision under review. On one view, the genuineness of the appellant’s documentary evidence was an issue raised by the Tribunal itself and of which the appellant was given no prior notice nor an opportunity to comment before the Tribunal made its decision. If that characterisation be correct, then the Tribunal’s failure to invite the appellant to make submissions on whether the letters relied upon were genuine, or forgeries, or concoctions, was a failure to comply with s 425. A failure to conduct a hearing of the kind contemplated by s 425 in my opinion would amount to a failure to comply with the obligation imposed by that section upon the Tribunal to invite an applicant to participate in such a hearing. That obligation is so central to the conduct of the Tribunal process that it necessarily conditions the power to make an adverse decision on review. A failure to comply with s 425 will therefore amount to jurisdictional error and be amenable to the issue of constitutional or prerogative writs on the principles set out in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.
59.If it be the case that s 425 has no application to the issue raised in this appeal – that is the question whether the Tribunal was obliged to invite comment on an adverse conclusion not implicitly or explicitly an issue in the hearing, then s 425 does not deal with that matter and the requirements of procedural fairness are not excluded in respect of it by s 422B. This may appear to apply a narrow construction to s 422B. However that construction takes as its point of departure the ordinary meaning of the words used in the section and their evident purpose. That purpose is that, so far as Division 4 deals with matters of procedural fairness relating to the conduct of an application for review, its prescriptions are to be treated as exhaustive in relation to those matters. In so construing s 422B, I have also borne in mind the principle that:
‘...when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.’
Annetts v McCann (1990) 170 CLR 596 at 598
Section 422B contains words of limitation which indicate that it is not intended to confine the requirements of procedural fairness in respect of Tribunal hearings by limiting their application to the matters dealt with in the provisions of Division 4 in the way that they are dealt with there. It follows that if s 425 does not apply in this case, there was a breach of procedural fairness on the part of the Tribunal which amounts to jurisdictional error.
Applying WAJR to the facts of this case, it is noted that in relation to the two letters provided by the applicant, the Tribunal concluded:
16. The applicant told the Tribunal that he came to Australia in January 2010 after completing a degree in pharmacy in India to study a Diploma of Laboratory Technology, but changed courses to study a Diploma of Dental Technology and then Enrolled Nursing. He wanted to study for a Bachelor of Nursing but had to continue with Diploma courses in line with his subclass 572 Student visa. He said he had also completed an Advanced Diploma of Business, a Diploma of Marketing and, most recently, an Advanced Diploma of Marketing in April 2017, although he did not provide a certificate of completion. Instead, the applicant submitted a letter from TCWA dated 10 October 2017 which stated that he had completed all the units in the course.
17.Concerned about various inconsistencies in the abovementioned letter, including details of the logo and letterhead, the Tribunal wrote to the TCWA on 1 November 2017 seeking to verify if it had issued the letter to the applicant. In spite of followup telephone calls and undertakings by TCWA that they would respond to the Tribunal, no response has been received. The Tribunal’s concern about the documents submitted by the applicant in relation to his Advanced Diploma of Marketing was compounded by another letter from TCWA dated 3 November 2017, submitted to the Tribunal by the applicant’s migration agent on 6 November 2017. This letter appeared to contain further and different inconsistencies in its letterhead. As the Tribunal has been unable to verify the documents submitted, it gives them no weight and assesses them not to be genuine. Under these circumstances, and noting that the applicant did not provide a certificate of completion for the Advanced Diploma of Marketing at TCWA, the Tribunal does not accept that he completed the course, as claimed.
In determining whether the Tribunal breached the terms of s.359A of the Act (which, in WAJR, was s.424A), the Court notes submissions from the Minister as follows.
27The First Applicant submitted the following evidence to establish he had completed the following courses:
Date/s
Course
Institution
Evidence Produced
30/07/2010 to
02/07/2012
Diploma of Dental Technology
Kingston Training & Employment
Diploma – CB 21 Transcript – CB 23
19/08/2011
Certificate III in Aged Care
Flex Training Services
Certificate – CB 141
19/08/2011
Certificate III in Home and Community Care
Flex Training Services
Certificate – CB 142
2013 to 30/06/2014
Diploma of Nursing
Education and Training International
Diploma – CB 14 Transcript – CB 15
28/07/2014 to
12/07/2015
Advanced Diploma of Business
TCWA
Diploma – CB 18 Transcript – CB 19
07/09/2015 to
22/03/2016
Diploma of Marketing
TCWA
Enrolment – CB 26 Receipt – CB 52-53 Diploma – CB 97 Transcript – CB 99
11/04/2016 to
26/02/2017
Advanced Diploma of Marketing
TCWA
Enrolment – CB 27 Enrolment – CB 144 Letter – CB 96 Letter – CB 143
28The First Applicant also put before the Tribunal proof of his enrolment in a Diploma of Human Resources Management through TCWA (course dates 10 October 2017 to 30 September 2018) (see CB 95).
29As can be seen from the above table, the completion of the Advanced Diploma of Marketing through TCWA was relevant to the visa application, because otherwise the First Applicant would have had a significant, unexplained gap in his studies, which would be inconsistent with him being a genuine applicant for temporary entry and stay as a student.
30The Advanced Diploma of Marketing differs from all other courses in relation to the evidence the First Applicant provided to prove he had obtained that qualification. In relation to all other completed courses, the First Applicant was able to provide a certificate of completion. In all but two cases, he also provided a transcript of his academic results. Significantly, in relation to two courses completed through TCWA, the First Applicant provided the Tribunal with certificates of completion as well as academic transcripts (see CB 18-19 and 97-99).
31The only documents provided by the First Applicant to confirm he had completed the Advanced Diploma of Marketing from TCWA were the first and second TCWA letters (CB 96 and 143).
32The first TCWA letter is dated 10 October 2017 (CB 96). There are differences in the logo/letterhead for this letter compared to other documents issued by TCWA – most significantly, in addition to the logo, the letterhead includes the typed words “Technical college of Western Australia” and address details in the top right-hand corner of the document. The address in the top right-hand corner is typed, “113, Wharf Street”, whereas other TCWA documents (including the address at the bottom of the document at CB 96) say “113 Wharf Street”. In relation to the words, “Technical college of Western Australia”, the First Respondent observes that on every other document purportedly provided by TCWA, the word college is capitalised.
33There was clearly a basis for the Tribunal to have had concerns about the genuineness of the first TCWA document. There was also a basis for concern about the genuineness of the second TCWA letter (dated 3 November 2017), given the failure by the First Applicant to produce a certificate of completion and/or an academic transcript. In the circumstances, the First Respondent submits that the findings of the Tribunal (at CB 159, [16]-[17]) as to the genuineness of the first and second TCWA letters and as to whether the First Applicant had completed the Advanced Diploma of Marketing at TCWA were open to it on the evidence before it.
34In relation to the attempts to verify the two letters, the Tribunal said (at CB 159, [17]):
…As the Tribunal has been unable to verify the documents submitted, it gives them no weight and assesses them not to be genuine. Under these circumstances, and noting that the applicant did not provide a certificate of completion for the Advanced Diploma of Marketing at TCWA, the Tribunal does not accept that he completed the course, as claimed.
35As the first and second TCWA letters were provided by the First Applicant, the Tribunal was not required to comply with section 359A(1) of the Act in relation to these documents (section 359A(4)). In any event, deficiencies or inconsistencies in an applicant’s evidence, and the Tribunal’s deliberations in relation to same, is not “information” which attracts the operation of section 359A of the Act (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [18]; and Kaur v Minister for Immigration and Border Protection [2016] FCA 132 at [43]-[44]).
36Further, in the First Respondent’s submission, the failure of TCWA to reply to the Tribunal’s queries was not “information” for the purposes of section 359A of the Act. In any event, the failure to respond was not “information” which formed part of the reason for affirming the decision. Rather the reason for affirming the decision was the disbelief of the First Applicant’s evidence based on inconsistencies in the documents he provided, together with the absence of evidence in the form of a certificate of completion for the Advanced Diploma in Marketing (CB 159, [16]-[17]).
The Court notes here on the finding in WAJR at [49] that:
…s 424A of the Act does not apply to this case. The formation of a view about the evidence by the Tribunal is not ‘information’ of the kind contemplated in that section. Were it otherwise, it could be argued that the section would require the Tribunal to advise an applicant of its adverse conclusions generally in advance of its decision for the purpose of inviting comment upon them.
The principles articulated in WAJR apply here.
The Court agrees with the Minister that the Tribunal did not need to put its concerns as to the legitimacy of the documents to the applicants. Concerns do not constitute “information”.
Further, as to the letters themselves, the letters from the College were materials and information that the first applicant gave for the purpose of the review. They thus fall under s.359A(4)(b) and are not required to be put to the first applicant.
As to whether the Tribunal’s decision to make enquiries to verify the documents constitutes “information”, the Court observes:
a)it does not appear that the Tribunal drew an adverse inference, per se, from the failure of the College to respond. Rather, the Tribunal was unable to be satisfied, without verification, that the first applicant had in fact completed the Advanced Diploma in Marketing; and
b)it was not the failure to respond that was the reason for affirming the decision. Rather, inconsistencies in the form of the documents raised doubts and the absence of a certificate of completion (which had been provided in respect of the other courses) caused the Tribunal not to accept that the first applicant had completed the Advanced Diploma of Marketing.
The Tribunal acted in accordance with the obligations of s.359A. No jurisdictional error arises in this context.
In relation to whether the Tribunal failed to comply with its procedural fairness obligations in relation to the College letters, the Court again turns its attention to the decision in WAJR and notes the Minister’s submissions as follows:
Provision of TCWA letters to the Tribunal
2As noted in our earlier submissions, on 24 October 2017, the First Applicant provided a number of documents to the Tribunal (CB 95-108), which relevantly included a letter dated 10 October 2017 purporting to be from Technical College of Western Australia (“TCWA”) confirming the first applicant had completed an Advanced Diploma of Marketing (CB 96) (hereinafter referred to as “the first TCWA letter”).
4At the hearing on 31 October 2017, the Tribunal Member raised with the First Applicant that she had not received a certificate of completion for the Advanced Diploma of Marketing course. The following exchange appears at transcript page 3:
Member: I’ve seen the documents that you provided to us. I don’t seem to have a completion certificate for the advance diploma of marketing.
Applicant: Yes, the college give me the completion letter, so they are busy with some circumstances over there so they can provide me. If you want me to I can submit that as soon as possible.
Member: And I’m just curious why, amongst all the papers that you’ve submitted, you didn’t supply that one.
Applicant: Yes, because of you know, the department changed these courses so the college doing some paperwork, these courses, so – but I can provide if you want. [Emphasis added]
5On 6 November 2017, the First Applicant provided further documents to the Tribunal, including (relevantly) a second letter from TCWA confirming the First Applicant had finished an Advanced Diploma of Marketing (hereinafter referred to as “the second TCWA letter”) (CB 143). It is clear the second TCWA letter was provided in response to the Tribunal’s concerns about the absence of any certificate of completion for this course, as raised during the hearing on 31 October 2017.
….
15The First Respondent submits that the present case does not involve an error of the kind identified in WAJR. In the present case, the Tribunal did not find that the documents were forgeries, or that they were concocted for the purposes of the visa application. Rather the Tribunal, in ultimately concluding it was not satisfied that the First Applicant intended to genuinely stay in Australia temporarily (amongst other things):
(a)did not accept the First Applicant’s claim that he had finished an Advanced Diploma of Marketing at TCWA (CB 159, [17]). In reaching that finding, the Tribunal noted concerns about inconsistencies between the first TCWA letter and other TCWA documents the Tribunal had before it, the fact the Tribunal had been unable to verify the first TCWA letter, and the fact that the First Applicant had not provided a certificate of completion for that course (CB 159, [17]); and
(b)the Tribunal did not accept that the first and second TCWA letters were genuine (CB 159, [17]).
16The present case is an example of the situation contemplated by French J, when he said (at [56]), “It may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents”.
17Further, the decision is entirely consistent with the observations of the Full Court in SZMOK, where the Full Court said (at [60]):
…there is no unfairness where a person affected knows what he is required to prove to the decision maker and is given the opportunity to do so. An applicant cannot complain if his application is rejected because the decision- maker, without notice to him, rejects what he puts forward (WACO’s Case at [46]).
18In the present case, it was the absence of the provision of any certificate of completion for the Advanced Diploma of Marketing course that concerned the Tribunal, and that concern was raised with the Applicant during the hearing (see [4] above).
19The Advanced Diploma of Marketing differs from all other courses in relation to the evidence the First Applicant provided to prove he had obtained that qualification. In relation to all other completed courses, the First Applicant was able to provide a certificate of completion. In all but two cases, he also provided a transcript of his academic results. Significantly, in relation to two courses completed through TCWA, the First Applicant provided the Tribunal with certificates of completion as well as academic transcripts (see CB 18-19 and 97-99).
21The only documents provided by the First Applicant to confirm he had completed the Advanced Diploma of Marketing from TCWA were the first and second TCWA letters (CB 96 and 143). The absence of a certificate of completion for the Advanced Diploma of Marketing course was a matter that troubled the Tribunal, and which it raised with the Applicant at the hearing (see [4] above).
The Court does not accept that the facts of this matter are such that jurisdictional error of the sort identified in WAJR does not arise here.
It is certainly correct that Justice French in WAJR states (at [56]):
It may be that procedural fairness would not require the Tribunal to invite comment prior to finding no more than that it was not satisfied about the reliability or genuineness of particular documents.
However, His Honour’s findings do not end there. Rather, His Honour continues:
But where, as here, there is a clear implication in the Tribunal’s reasoning by reference to the appearance of the documents, that they were concocted for the purposes of the application, then on the authorities I have referred to, procedural fairness would require an opportunity be given to the appellant to comment.
These two paragraphs must be read together.
Here, there is a clear implication in the Tribunal’s reasoning that the letters in question were concocted for the purposes of the application. That much is evident from the mere use of the words “not genuine” after the words “concerned about various inconsistencies … including details of the logo and letterhead” and “further and different inconsistencies in its letterhead” when referencing the letters. The Tribunal would not have scrutinised the problematic letterhead in question and then referenced the letters as “not genuine” if it were not casting doubts upon the applicant’s credibility. Here, the reference to the document not being “genuine” was an assessment of authenticity tied to credibility and, arguably, a suggestion that the letters were provided for the purpose of bolstering the first applicant’s visa application.
In relation to the contention that the facts of this matter align with the decision in Minister for Immigration & Citizenship v SZMOK (2009) 247 FCR 404 (“SZMOK”), it is true that the Full Court in SZMOK said:
…there is no unfairness where a person affected knows what he is required to prove to the decision maker and is given the opportunity to do so. An applicant cannot complain if his application is rejected because the decision-maker, without notice to him, rejects what he puts forward (WACO’s Case at [46]).
However, the Court also said (at [68]):
While the Tribunal has a duty to raise clearly with an applicant the critical issues on which a review may depend, there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. The circumstances may be such that the Tribunal had sufficiently alerted an applicant to the doubts it had about the genuineness of all documents that the applicant had submitted. While a finding of forgery should not be lightly made, the circumstances of a particular case may be such that it would be unnecessary to afford a person affected by such a conclusion the opportunity of dealing with it. The decision of the Full Court in WACO’s Case turned upon the application of well known and established principles to the particular and peculiar circumstances of that case (VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 at [64]). WACO’s Case does not establish any new principle.
(Emphasis added)
Here, the Tribunal did not, ever, indicate to the first applicant that it had concerns about the letters provided to the Tribunal. It never sufficiently alerted the first applicant to the doubts it had about the genuineness of the documents that the first applicant had submitted. Rather, it only expressed concerns about the first applicant’s failure to provide a completion certificate. The Tribunal was certainly entitled to draw a negative inference about the fact that a completion certificate had not been provided Indeed, had one been provided, the Tribunal arguably (based on the reasoning in SZMOK) could have expressed concerns about the validity of that document. But that is not what occurred here. Here, the Tribunal drew an adverse conclusion about the letters the applicant had submitted and never discussed those concerns with the applicant. The first applicant was never put on notice that there was a problem in this regard.
In this regard, the facts of this case are similar to those seen in WAEJ wherein the Full Court said (at [52]):
On its face the foregoing was a statement by the RRT the document was not authentic. This was not a case where dishonesty on the part of the appellant had been demonstrated thereby providing support for the further conclusion that the appellant had arranged for the preparation, and tender of, a non-authentic, or forged document which the RRT could disregard. There was no finding by the RRT that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis.
Here, as in WAEJ, if in truth the Tribunal did not believe that the document was authentic it should have advised the first applicant, and his agent accordingly, and allowed him to make any inquiries that were necessary to enable the first applicant to produce further material to the Tribunal or to satisfy the Tribunal in respect of the letter.
Applying WAJR and SZMOK, it cannot be said here that the particular circumstances of this case are such that it was unnecessary for the Tribunal to afford the first applicant (as a person affected by such a conclusion) the opportunity of dealing with its concerns about the genuineness of the letters.
On the evidence, it is clear that, in not advising the applicants of its concerns in relation to the evidence provided and thus denying them an opportunity to comment, there was a breach of procedural fairness on the part of the Tribunal which amounts to jurisdictional error.
Ground 6
6. I feel that I have been treated as a scapegoat in the matter and was blamed and “ACCUSED” for no fault of mine.
As for ground 6, the first applicant has not been “accused” of doing anything. Nor can it be said that he is a “scapegoat”.
Ground 6 must be dismissed.
Ground 7
7. To sum up, I request the Hon. Justice of the Federal Court to decide my case taking into consideration all the circumstances in the matter and grant me justice.
Ground 7 is, again, not a ground of review. It is a plea by the first applicant for the Court to grant him justice.
Ground 7 goes no higher than to seek impermissible merits review.
Ground 7 must, accordingly, be dismissed.
First Applicant’s affidavits
The first applicant provided two affidavits.
In respect of [l], the Court has already explained with reference to ground 2 that the applicants did have ample opportunity to provide documents and did not, in any event, request more time to provide documents.
As to the first applicant’s assertion at [l] of both affidavits that:
The Hon. Tribunal also did not take into consideration that I have studied and completed my Advanced Diploma on grounds that the logo of the Educational Institution is incorrect,
for the reasons already provided in discussing ground 5, this concern does disclose jurisdictional error.
In respect of [2], the Court is sympathetic in relation to the first applicant’s concern that his career will be ruined. However, [2] simply evidences disagreement with the finding that the first applicant was not a genuine student. That he has provided, in the correspondence, an enrolment dated 12 July 2018 is irrelevant to proceedings in this Court.
Paragraph [3] of the two affidavits again invite the Court to engage in merits review. The first applicant is offering an explanation for his slow progress. This is irrelevant to the Court’s determination here. These were matters that should have been raised before the Tribunal.
The Tribunal addressed the first applicant’s claims and assertion he wished to start his own business at [20]. It is noted that the first applicant’s evidence was that he did not have a “financial or business plan for his venture”. Hence, it was open for the Tribunal to weigh this in considering if the first applicant was a genuine entrant and whether there was an incentive or plan for him to return to India.
Finally, the first applicant asked the Court to consider his wife and child. No submissions were advanced by the first applicant about the impact on his family. The Court notes that Direction 53 indicates that the Tribunal can consider any other relevant information provided by the first applicant, or information otherwise available to the decision-maker, including information that may be either beneficial or unfavourable to the first applicant.
In circumstances where the first applicant advanced no submissions on the impact on his family, nor on the effect that he would not be able to obtain employment, there is nothing to suggest that the Tribunal was required to consider this matter further. The Court does note that at [20] the Tribunal refers to the first applicant’s evidence of “financial support” from his family and at [21] the Tribunal refers to a lack of family ties in Australia, and significant ties in India.
On the basis of the above, the Court finds that, for the same reasons as outlined by the Court in relation to ground 5, the first applicant’s affidavit identifies jurisdictional error. Otherwise, no jurisdictional error of the sort alleged by the applicant in these affidavits can be said to arise.
Conclusion
Overall, the Court is satisfied that by not advising the first applicant of its concerns in relation to the evidence he provided, and thus denying him an opportunity to comment, there was a breach of procedural fairness on the part of the Tribunal which amounts to jurisdictional error.
The Tribunal’s decision is set aside and the matter is remitted to the Tribunal for determination according to law.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 27 September 2019
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