Singh v Minister for Immigration

[2016] FCCA 2663

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2663

Catchwords:
MIGRATION – Application for judicial review of decision of Migration Review Tribunal – failure to apply correct legal test – Tribunal decision quashed – writ of mandamus to issue.

Legislation:

Migration Act 1958 (Cth), s.359A

Migration Regulations 1994 (Cth), cl.457.224 of Sch. 2

Cases cited:

Minister for Immigration and Citizenship v MZXPA [2008] FCA 185

SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80

First Applicant: SUKHWINDER SINGH

Second Applicant: NARINDER KAUR

Third Applicant: HARKAMAL KAUR SAINI

Fourth Applicant: JASKAMAL SINGH SAINI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 2555 of 2014

Judgment of: Judge McNab

Hearing date: 8 July 2016

Date of Last Submission: 8 July 2016

Delivered at: Melbourne

Delivered on: 26 October 2016

REPRESENTATION

Counsel for the Applicant: Mr Solomon-Bridge

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the Respondents: Ms Helsdon

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The decision of the Migration Review Tribunal made 28 November 2014 be quashed.

2. A writ of mandamus issue directed to the Tribunal requiring it to determine the applicant’s application according to law and the matter be remitted to the Administrative Appeals Tribunal for rehearing.

3. The first respondent pay the applicant’s costs to be assessed in default of agreement.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2555 of 2014

SUKHWINDER SINGH

First Applicant

NARINDER KAUR

Second Applicant

HARKAMAL KAUR SAINI

Third Applicant

JASKAMAL SINGH SAINI

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Nature of the Application

1. By way of application filed on 16 December 2014, the applicants seek judicial review of a decision of the Migration Review Tribunal

   
   

   (“the Tribunal”) dated 28 November 2014, to affirm a decision of a delegate of the First Respondent not to grant him a Skilled (Temporary) (Class UC) visa (“the visa”).

Background

1. The first applicant, Sukhwinder Singh, is an Indian national. The other applicants are his wife, his five year old daughter and his ten year old son, respectively.

2. By application dated 19 November 2012, the first applicant applied to the Department of Immigration and Citizenship (As it then was)

   
   

   (“the Department”) for the visa. In order to be granted the relevant subclass 457 visa, the applicant had to meet a range of criteria which included cl.457.224 of Schedule 2 to the Migration Regulations 1994 (Cth) (“the Regulations”).

3. Clause 457.224 required, amongst other things, that the applicant meet Public Interest Criterion (“PIC”) 4020. PIC 4020 required that there be no evidence before the Minister that the applicant had provided to the Minister or his officers, a “bogus document” or information that was false or misleading in a material particular with their visa application.

4. In support of the application for the visa, the applicant provided to the Department an employment reference letter from a Mr Desh Bandhu of Babu Ram Jangra & Sons (“Babu Ram”).  

5. On 25 February 2013, the Department wrote to the applicant inviting his comment on adverse information which indicated that the applicant’s employment reference letter from Babu Ram was not verified and considered to be non-genuine. The applicant provided a response to the invitation to comment on 20 March 2013 and provided further documents including a further letter from Babu Ram.

6. On 14 August 2013, a delegate of the Minister refused the visa application as the applicant did not satisfy PIC 4020 and therefore the requirements of cl.457.224. The delegate was satisfied that the applicant had provided a bogus document, being the employment reference from Babu Ram.

7. On 22 August 2013, the applicants sought review of the delegate’s decision by the Tribunal. On 28 November 2014 the applicant appeared before the Tribunal and provided submissions and various documents as well as a request for an extension of time to provide further documents. The Tribunal also received oral evidence from Mr Uliks Metohu (Director of View Furniture), Ms Rovena Kodra (Mr Metohu’s spouse) and Mr Desh Bandhu.

8. The Tribunal noted that at the hearing, the applicant’s current employer had written a letter indication the previous nomination had ceased and he needed more time to obtain a new nomination. The applicant sought an extension of time to obtain a new nomination as his employer had not yet lodged one as he was still gathering paperwork. 

Decision of the Tribunal

1. By letter dated 15 December 2014, the Tribunal affirmed the decision of the delegate not to grant the applicants the visa.

2. The Tribunal identified the issues before it at [7] of its decision[1] where it states:

   It proposed to firstly consider whether the applicant satisfies PIC 4020 for the purposes of cl.457.224 before deciding whether or not to grant an extension of time to obtain a new nomination;

   In her decision, the delegate found the applicant did not satisfy PIC 4020(1), the operation of which the Tribunal explained. The Tribunal also explained the definition of “information that is false or misleading in a material particular”, as defined by PIC 4020(5);

   Information obtained by the Department at a site visit with the applicant’s alleged former employer, Mr Desh Bhandu, is potentially relevant to whether the applicant meets cl.457.223(4)(da), the operation of which the Tribunal explained;

   In his visa application the applicant claimed he was employed as an upholsterer by Babu Ram Jangra & Sons for 5 years from 30 August 2002 to 30 June 2007. In support of his application the applicant submitted 2 work references from Babu Ram Jangra & Sons, dated 1 July 2007 and 15 September 2011, certifying his claimed employment.

   [1] CB 155-170

3. The Tribunal then refers at [8] of its decision, to the site visit conducted by two Department of Immigration officers to Babu Ram Jangra & Sons. In summary, the officers met with Desh Bandhu who informed the officers that Babu Ram was a business that deals with the sale of wood and has never employed anyone for upholstery work as the business does not deal in furniture items. Further, Desh Bhandu could not recognise the applicant by his photo or name and stated that the business has never employed anyone on a contract basis for 2 to 3 years. He said that he signed the applicant’s two reference letters as a favour to a person he knew, whose relative needed help without knowing the contents of the reference letter. He said that he had never employed the applicant in his business and offered to give a statement in writing with the actual facts. He then proceeded to write a statement stating that the reference letters were issued without him knowing their contents, that he takes no responsibility for the reference letters and that the applicant had never worked in the business.

4. The Tribunal heard evidence from Mr Bandhu, who gave evidence over the phone stating that the first applicant used to work for him; did upholstery work for the business; that he owned a wood shop that also dealt in furniture; that he changed his evidence as he was scared when he saw the immigration officers (as sometimes the police or tax department people turn up).[2] He also said that he would have recognised the first applicant if shown a photograph that was larger than the passport sized one shown to him. Further evidence was before the Tribunal in the form of a letter from Mr Bandhu in which he retracted the statements he said to the Department of Immigration officers, saying that the first applicant had worked for him as an upholsterer and included a good reference attesting to his skills.[3] The second applicant also gave evidence that the first applicant was paid in cash.[4]

   [2] Affidavit of Carina Ford affirmed 23 June 2016, Exhibit “CF-2” pp. 24-32

   [3] Court Book 75-76

   [4] Affidavit of Carina Ford affirmed 23 June 2016, Exhibit “CF-2” pg. 20

5. At the hearing, the first applicant gave evidence that he used to work as an upholsterer for Mr Bandhu and that he used to go to customers’ houses to make furniture.[5] He reiterated the evidence of the second applicant by stating that he was paid in cash for his work. The first applicant also asked for a one month extension so that he could “get some letters from those clients at their houses where I work.” The Tribunal member then indicated that as he had concerns about the applicant’s credibility and as he was not satisfied with the applicant’s response to those concerns, he would not consider any further evidence to be credible.

   [5] Affidavit of Carina Ford affirmed 23 June 2016, Exhibit “CF-2” pg. 35

6. The Tribunal concluded that it “unequivocally established” that Babu Ram Jangra is a timber and hardware merchant and that it did not engage in the manufacture and upholstery of furniture. The Tribunal concluded at [46] - [47] that the applicant had been on notice since the delegate’s decision in August 2013 that his credit and employment history were in issue and that the Department had found that he did not work for Babu Ram Jangra and that he had given false or misleading information in his visa application.

7. At [48] of its decision, the   Tribunal stated that it considered that the applicant had “poisoned the evidentiary well” any additional material or evidence produced after the hearing by the applicant would not be reliable in light of the significant adverse credit findings made by the Tribunal. The Tribunal thereby refused the applicant’s request for additional time to make further submissions and provide additional documents.

8. The Tribunal then considered whether pursuant to PIC 4020(4), the requirements of cl.4020(1) or (2) should be waived. The Tribunal heard submissions from Mr Metohu and Ms Kodra, where they provided information on how important the first applicant was to their business; how difficult it was to find qualified upholsterers and people with the necessary skills to produce a high quality of work.[6] Ms Kodra stated that finding someone to replace the first applicant would be hard and that the business would be unable to meet its due dates and delays would financially affect the business.[7]

   [6] Affidavit of Carina Ford affirmed 23 June 2016, Exhibit “CF-2” pg. 55

   [7] Affidavit of Carina Ford affirmed 23 June 2016, Exhibit “CF-2” pg. 61

9. While the Tribunal accepted that the applicant was a valued part-time employee to View Furniture, it was not satisfied that the “detriment the employer would suffer if the applicant is not granted the visa meets the requirements of the waiver provisions under PIC 4020(4)”. Further at [57] it states:

   The Tribunal accepts the evidence of the applicant’s employers (as outlined at paragraphs 25 and 26) but considers that the applicant’s employment circumstances do not amount to compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen that justify the granting of the visa.

10. The Tribunal found that the requirements of cl.4020(2) should not be waived and that the applicant did not satisfy PIC 4020 for the purposes of cl.457.224.

Grounds of Review

1. The applicant filed an amended application on 24 June 2016 which provided the following grounds of review:

Ground 1(a): Apprehended Bias 

1.Both the ultimate decision of the Tribunal and/or its decision to refuse to allow additional time to the applicant under s 359AA(b)(iv) of the Migration Act 1958 (“the Act”) are affected by:

a.apprehended bias or a breach of s 357 A(3) of the Act, in that a fair minded observer might reasonably have apprehended that the Tribunal might not have brought an impartial mind to the decisions.

b.as for the decision to refuse to allow additional time, error of law in that the Tribunal believed that the further evidence which the applicant proposed to adduce could not be tested by the Tribunal, which reveals a misunderstanding of the Act having regard to the powers which were available to the Tribunal under ss.259(2), 361, 362, 363(1)(A), 363(1)(d), 363(3), and 366 of the Act.

1. Both the applicant and respondent agree that in order to establish apprehended bias on the part of the Tribunal it must be demonstrated that a fair minded observer might reasonably have apprehended that the Tribunal might not have brought an impartial mind to the decision.

2. In Minister for Immigration and Citizenship v MZXPA [2008] FCA 185 per Sundberg J at [13]-[15], His Honour stated:

   13.The hypothetical fair‑minded and informed person would be aware of the nature of the Tribunal’s review functions and proceedings, and that the Tribunal would not invite an applicant to a hearing unless, on the material available to it, it had already reached a preliminary view unfavourable to the applicant. That follows from s 425 of the Act, which provides in part:

   (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 …

   …

   Such a preliminary view does not establish apprehended bias: VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [23] and

   
   SZBAE v Minister for Immigration and Multicultural and Indigenous Affairs

   [2004] FCA 965 at [15]‑[16].

   14.An informed and instructed hypothetical person would also know that the Tribunal is an inquisitorial body, and is not required uncritically to accept an applicant’s claims: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 596. It is required under the Act, in performing its review function, to consider whether or not it is satisfied that an applicant meets the criteria for a protection visa. If not so satisfied, it must refuse to grant the visa. See Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16]‑[18]. The Tribunal is accordingly required to assess the probative value of evidence put before it by an applicant. Where the Tribunal perceives weaknesses in that evidence, it is entitled vigorously to test that evidence: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [30].

   15.Accordingly, under the Act, the expression of a preliminary view, even on a critical matter, does not establish bias. At common law (that is independently of the special features of the Act that bear on the ambit of apprehended bias), the courts have accepted that judges, Tribunals and administrators may properly, and indeed sometimes should, express a preliminary view so as to alert a party to concerns they may have and thus afford the party an opportunity to rebut that view.

3. The applicant made submissions that the conduct of the Tribunal in asking questions of the applicant and through its treatment of witnesses, gives rise to a reasonable apprehension of bias. The applicant provided a number of examples at [10]:

   MEMBER: [To Mr Singh, in the context of an application mid-hearing for an adjournment to gather more evidence]

   
   

   It’s important that you understand at this time that earlier in the hearing I indicated to you that I had concerns about your credibility. And I asked up to try to account for my credibility concerns. And you weren’t able to do that to my satisfaction.

   
   

   I’ve considered the evidence in this case quite thoroughly.

   
   And I have to say that neither you nor your wife have been able to resolve my concerns about your credibility.

   … So you need to know at this point that I consider you to not be credible as a witness. And as a result I am concerned that any evidence that you would give me after the hearing would not be credible. …

   MEMBER: You have in effect poisoned the well. …

   MEMBER: You have poisoned the evidence well. Poisoned the water in the evidence well. …[8]

   [8] Transcript of Tribunal Hearing p.44-45

   (T44-45)

   MEMBER: [In the context of Mr Singh’s current employer having just given evidence] I have to say that I don’t consider that what I’ve been told about the inconvenience and detriment to the employer meets this requirement [for waiver of PIC 4020]. Because it doesn’t come close to the threshold that the government intended when it made this provision. But thank you for coming and giving evidence, and if you’ll have a seat in the room we’ll continue proceedings.

   …

   [then to Mr Singh] Now, Mr Singh, I’ve considered your employers’ submissions about their detriment to their business if they can’t have you continue working for them. And I accept everything they’ve told me … I also consider that they believe you

   to be very valuable … But for the reasons I’ve already explained, the test for PIC 4020(4) is high, and difficult to achieve. And I may not find that the circumstances that have been raised meet that threshold. That justify the granting of the visa. Did you want to say anything else in relation to PIC 4020(4) before we move on?

   (T60-62)

   MEMBER: [to Mr Singh] You need to be aware that I have considered the evidence overall, but I’ve got unresolved concerns about your credibility and your wife’s credibility, and your alleged former employer in India’s credibility. And you need to be aware that I prefer the evidence obtained by the Department of Immigration in their February 2000 site visit to your alleged former employer’s. I’m ready to make a decision. Is there anything else that you wish to say[?] …

   MEMBER: I’ll stop you Mr Singh. You’ve said that several times throughout the hearing, and I’ve been at pains to emphasise that that’s not what I’m considering today. … The issue is that the evidence before me very strongly indicates that you gave false information in your visa application about your employment history in India. So Mr Singh I’m ready to make a decision. We’ve had a very long hearing, you’ve had a lot of opportunity to speak. Is there any final comment you wish to make before I deliver my decision?

   (T63-64)

   MEMBER: [to Mr Singh’s representative] Mr Babalaconda, I’m about to deliver a decision. What did you want to say when you interrupted before?

   MEMBER: It’s not a bogus document, Mr Babalaconda, you’re not, either you haven’t been listening for the last two and a half hours, I’m not talking about a bogus document. …

   MEMBER: Alright, Mr Babalaconda, I’m putting you on notice now that you’re giving evidence. … It’s not appropriate for you two and a half hours into a hearing to be giving evidence on your client’s behalf. …

   MEMBER: I don’t know what you’re talking [about], Mr Babalaconda, I’m cautioning you. …

   MEMBER: Okay, I’ll stop you Mr Babalaconda. As I have said at length to your client, his ability to do his job is not in issue, and you know, or you should know, that what I’m considering is a very specific legal test, whether I can be satisfied that there is no evidence of him having given false or misleading information in a material particular in his visa application. And for the reasons I have already articulated [at] length in this two and a half hour hearing, today it is unlikely I can be satisfied of that. …  

   MEMBER: This is really getting beyond a joke.

   (T64-66)

4. It was put that a fair-minded observer might have thought that the Tribunal continued the hearing in circumstances where it might not have been open to persuasion. The applicant submits that similar to the decision in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [35], the Tribunal’s comments were more than just “testing” the evidence; they rather tended to express conclusions and findings (e.g. “you nor your wife have been able to resolve my concerns about your credibility”; “you have in effect poisoned the well”; “[that evidence] doesn’t come close to the threshold”; “I prefer the evidence obtained by the Department”, etc.), or that the comments otherwise tended to give rise to a reasonable apprehension of bias.

1. The applicant submitted that, in particular, the refusal of the adjournment part way through the hearing on the basis that Mr Singh had “poisoned the well”, as a well-known reference to the well being poisoned “beyond redemption”: Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49], would tend to suggest a closed mind on

   
   

   Mr Singh’s credibility, which was a critical issue in the review application.

Ground 1(b): Failure to grant adjournment

1. With regard to Ground 1(b), the applicant submits that the refusal by the Tribunal to adjourn the review to allow for additional time for

   
   

   Mr Singh to comment on or respond to information that was put to him regarding his employment with Mr Bandhu, was prejudicial as this decision to refuse the request was based on the belief that Mr Singh had “poisoned the well”. The applicant submitted that the Tribunal had the means to test the proposed new evidence and it misunderstood the inquisitorial powers available to it by coming to the conclusion that, before it could receive that evidence, it could not possibly be credible.

2. The respondent submitted at [20] that having considered the proposed nature, content and quality of the proposed further evidence which was not independently verifiable or contemporaneous, the Tribunal formed the view that it would not be reliable or sufficient to set aside its existing concerns.

Ground 2 – Procedural unfairness

2. The Tribunal failed to comply with s 359A of the Act in that it failed to put clear particulars to the Applicant of, and seek his comment on, information on Babu Ram Jangra’s website (See [39], [47] of the decision).

CONSIDERATION

1. In my view, the exchanges between the Tribunal and the applicant and/or his representative, indicate that the Tribunal had moved beyond expressing a preliminary view in relation to matters which were fundamentally important to the application and had expressed a concluded view. I accept that the exchanges occurred in circumstances where the applicant was seeking to place more material before the Tribunal in relation to his credit and the fact that he had worked as an upholsterer in India with Mr Bandhu. The manner in which the Tribunal expressed itself (in particular at transcript [44]-[45] and

   
   

   [63]-[64] extracted above) was such as to convey the impression that it had made up its mind on a fundamental issue prior to the conclusion of the hearing and thereby had given rise to a reasonable apprehension of bias.

2. I have regard to the decision of the Full Court in SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [35] where their Honours Allsop CJ, Flick and Robertson JJ concluded that a reasonable apprehension of bias had been made out because:

   “the exchanges that occurred went well beyond a mere expression of reservation as to whether what the Tribunal member was being told should be accepted – the exchanges exposed the Tribunal member expressing a concluded view before the entirety of the hearing had even concluded that she “[did not] believe any of that” and that she “[did not] believe what you’ve told me about this Muslim girl” and that she “[did not] believe … that you’ve been pursued by the YCL”;

3. On the basis of the transcript extracted, in my view a similar error arose before the Tribunal.

Findings in relation to Ground 2

1. Ground Two relies on an asserted failure on the part of the Tribunal to invite the applicant to respond to information relating to the Babu Ram Jangra website, as it was required to do pursuant to s.359A of the Act. At [39] of the Tribunal decision, the Tribunal refers to the website, where it said it “confirms it is a timber and hardware merchant, there being no suggestion on the site that it makes and upholsters furniture” which was used as a basis for considering that the applicant’s and

   
   

   Mr Bandhu’s evidence during the hearing were not credible.

   
   

   The Tribunal at [47] said in relation to the website:

   The Tribunal notes the nature of Babu Ram Jangra’s business (i.e. wood merchants cf. upholsterers) was canvassed at length in both the delegate’s decision and at hearing. As the information below does not raise a new issue and is merely confirmatory, it did not need to be put to the applicant for his comment or response pursuant to section 359A of the Act.

2. The applicant submits that s.359A is concerned with “information” and not “issues”. It submitted that in circumstances where the website specifically relied upon by the Tribunal as a basis for rejecting the evidence of the applicant that in order to comply with its obligations under s.359A of the Act, that information should have been put to the applicant.

3. In circumstances where the website[9] displays photographs of furniture and has the logo ‘decorate your dreams’ and sells products other than timber and hardware (ie. kitchen ranges) and where the applicant had worked as an upholsterer at View Furniture Pty Ltd since March 2011,[10] in my view, the applicant has established that there is a ground that the applicant could provide evidence responsive to the website which may have had some impact on the Tribunal’s decision-making process and for that reason the web page should have been shown and raised directly with the applicant.

   [9] Court Book 165

   [10] Court Book 136, 123

Conclusion

1. In these circumstances, the Court makes the orders that the decision of the Tribunal be quashed and that a writ of mandamus issue requiring the Tribunal, constituted by a different member, determine the applicant’s application according to law.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 26 October 2016