Singh v Minister for Immigration

[2016] FCCA 1255

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1255

Catchwords:
MIGRATION – Judicial review – decision of former Migration Review Tribunal –whether documents provided – whether relevant assessing authority specified – whether bogus document – whether jurisdictional error.

Legislation:

Freedom of Information Act 1982 (Cth)

Migration Act 1958 (Cth), ss.5, 97, 359A, 362A, 375A, 474, 476

Migration Regulations 1994 (Cth), reg.2.26B(1A), Sch.2, cll.886.225, 880.230(1), Sch.4, cl.4020

Cases cited:
Arora v Minister for Immigration & Border Protection [2016] FCAFC 35
Batra v Minister for Immigration & Citizenship & Anor [2012] FMCA 544; (2012) 265 FLR 461
Batra v Minister for Immigration & Citizenship [2013] FCA 274; (2013) 212 FCR 84; (2013) 138 ALD 266
Lodhawala v Minister for Immigration & Anor [2015] FCCA 238
Minister for Immigration & Citizenshipv Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583
Mudiyanselage v Minister for Immigration & Citizenship [2012] FMCA 887; (2012) 134 ALD 199
Mudiyanselage v Minister for Immigration & Citizenship [2013] FCA 266; (2013) 211 FCR 27; (2013) 139 ALD 528
Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801
NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419; (2006) 93 ALD 333
Patel & Ors v Minister for Immigration & Anor [2015] FCCA 1624
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1
Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALR 347; (1994) 34 ALD 347
Sharma v Minister for Immigration, Multicultural Affairs &·Citizenship [2014] FCCA 2821; (2014) 291 FLR 289
Singh v Minister for Immigration & Anor [2013] FMCA 243
Singh v Minister for Immigration & Anor [2015] FCCA 359
Singh v Minister for Immigration & Citizenship [2012] FMCA 145
Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470
SZNNK v Minister for Immigration & Citizenship [2009] FCA 1386
SZVXW v Minister for Immigration & Anor [2016] FCCA 450
Trivedi v Minister for Immigration & Border Protection [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 25

Applicant: LAKHWINDER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 148 of 2015

Judgment of: Judge Antoni Lucev

Hearing date: 17 March 2016

Date of Last Submission: 17 March 2016

Delivered at: Perth

Delivered on: 30 May 2016

REPRESENTATION

For the Applicant: In person

Counsel for the First Respondent: Ms E Tattersall

For the Second Respondent: Submitting appearance save as to costs

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. That the application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 148 of 2015

LAKHWINDER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By an application filed on 14 April 2015 the applicant, Lakhwinder Singh (“Mr Singh”) seeks, under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) judicial review (“Judicial Review Application”) of a decision of the then Migration Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively) made on 30 March 2015. The Tribunal Decision affirmed a decision of a Delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) to not grant Mr Singh a Skilled (Residence) (Class VB) visa (“Skilled Residence Visa”).

2. The Tribunal Decision is at Court Book (“CB”) 238-247.

3. The Court notes that there was a non-publication order made in the County Court of Victoria on 30 November 2012 in respect of certain matters referred to in these Reasons for Judgment. Nothing before the Court indicates that that non-publication order has been lifted, and accordingly the Court has anonymised the names of certain persons and businesses to ensure that that order, if still in effect, is not breached.

An amended Judicial Review Application

1. On 29 October 2015 Mr Singh filed an amended Judicial Review Application (“Amended Judicial Review Application”).

2. The Amended Judicial Review Application was filed pursuant to orders made by a Registrar of this Court on 19 August 2015 (“Registrar’s Orders”) which permitted Mr Singh to file and serve an Amended Judicial Review Application giving complete particulars of each ground of review, and any affidavit containing additional evidence upon which he proposed to rely, by 30 October 2015, and an outline of submissions by 42 days before the hearing on 17 March 2016. The Registrar’s Orders also permitted the Minister to file and serve an outline of submissions 21 days before the hearing on 17 March 2016.

3. Together with the Amended Judicial Review Application Mr Singh filed and served an affidavit sworn on 29 October 2015 (“Mr Singh’s October 2015 Affidavit”).

4. Mr Singh did not file an outline of submissions. The Minister filed an outline of submissions on 25 February 2016.

Factual and procedural background prior to the application to the Tribunal for review

1. The factual and procedural background prior to the application to the Tribunal for review is as follows:

   a)Mr Singh was born on 17 July 1979: CB 1, in India and holds an Indian passport: CB 2;

   b)on 18 June 2010, Mr Singh applied for the Skilled Residence Visa: CB 1-13. It was a requirement for the grant of the Skilled Residence Visa that Mr Singh nominate an occupation, and provide evidence of a skills assessment for the nominated occupation;

   c)in the application for the Skilled Residence Visa Mr Singh indicated that:

   i)his nominated occupation was “pastrycook”;

   ii)his skills in that occupation had been assessed by Trade Recognition Australia (“TRA”); and

   iii)he had obtained a skills assessment on 13 March 2008 with reference number TRAO8/062205899 (“Skills Assessment”): CB 8;

   d)in relation to the Skilled Residence Visa application, Mr Singh’s then migration agent (“First Migration Agent”) provided to the then Department of Immigration & Citizenship (“Department”) a letter from TRA dated 13 March 2008 confirming Mr Singh’s Skills Assessment, and stating that Mr Singh had provided evidence that he satisfied the requirement to obtain the Skills Assessment in that he had done at least 900 hours of directly related work experience: CB 25-26;

   e)on 28 October 2011, the Department wrote to Mr Singh and requested he provide evidence of his skills and qualifications being evidence of his 900 hours work experience: CB 33-38;

   f)on 14 November 2011, the First Migration Agent provided the Department with a work reference from a baking firm (“Baking Firm Reference” and “Baking Firm” respectively) which stated that Mr Singh had undertaken more than 920 hours of unpaid and voluntary work at a bakery: CB 42-46;

   g)on 4 January 2012 the Department wrote to Mr Singh (“Department’s January 2012 Letter”) to invite his comment on information in its possession that gave it reason to believe that he might not satisfy Public Interest Criterion (“PIC”) 4020(1): cl.4020(1) in Schedule 4 to the Migration Regulations 1994 (Cth) (“Migration Regulations”): CB 52-59;

   h)it was a criterion for the grant of the Skilled Residence Visa at the time of the Delegate’s Decision, that Mr Singh satisfied PIC 4020, among other public interest criteria: cl.886.225 of Schedule 2 to the Migration Regulations. PIC 4020(1) relevantly required that:

   … there is no evidence before the Minister that [the applicant] had given, or caused to be given to the Minister, an officer, the Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to ... the application for the visa.

   i)the Department’s January 2012 Letter advised as follows:

   It has been brought to the Department's attention that Lakhwinder Singh may not satisfy PIC 4020 on the basis of the following information being submitted to the Department:

   On 13 July 2010, in support of your application for an 886 subclass visa, you provided to the Department a skills assessment from Trades Recognition Australia (TRA). To obtain this skill assessment, you supplied to TRA documents supporting your 900 hours work experience from … [Baking Firm].

   On 4 November 2011, a … [name deleted (“Mr Z”)] pleaded guilty to the manufacture and sale of work references from a number of companies. … Mr Z has admitted the documents were fraudulent in content and that they were created to assist clients to apply for permanent residence in Australia.

   On 14 November 2011, your Migration Agent provided to the Department the employment reference from … [Baking Firm] as being the employment reference provided to TRA in support of your skills assessment application.

   Evidence supplied to the court indicates that the one you submitted to Trades Recognition Australia (TRA) to obtain your skills assessment is comparable to those manufactured by … Mr Z.

   As a result of these events we have reason to believe that the skills assessment submitted as part of your 886 application has been fraudulently obtained.

   Please be advised that PIC 4020 requires that there is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in relation to:

   • the application for the visa; or

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

   As evidence has been found in your application that suggests a bogus document or information that is false or misleading in a material particular has been submitted, you are strongly encouraged to carefully read the following information to further understand how this matter can be addressed with the Department.

   CB 55;

   j)on 17 August 2012 the Department sent a further letter (with attachments) to Mr Singh inviting his comment (“Department’s August 2012 Letter”): CB 61-134;

   k)the Department’s August 2012 Letter advised Mr Singh that:

   It has been brought to the Department's attention that you may not satisfy PIC 4020 on the basis of the following information being submitted to the Department:

   On 13 July 2010, in support of your application for a 886 subclass visa, you provided to the Department a skills assessment from Trades Recognition Australia (TRA). To obtain this skill assessment, you supplied to TRA documents supporting your 900 hours work experience from … [Baking Firm]. The TRA reference for your skills assessment is TRA08/062205899.

   The attached … [Mr Z] documents show that you were provided with a work reference from … [name deleted (“Cake Shop”). In drafting this correspondence to you I have also reviewed the documents you provided in support of your Subclass 485 Skilled Graduate application.

   The skills assessment you provided in support of your 485 subclass application is the same TRA assessment provided in support of your 886 subclass application - TRA08/062205899.

   On 05 October 2008, in support of your application for a 485 subclass visa, you provided to the Department a skills assessment from Trades Recognition Australia (TRA). To obtain this skill assessment, you supplied to TRA documents supporting your 900 hours work experience from … [Baking Firm].

   On 05 October 2008, in support of your application for a 485 subclass visa, you attached to your on line application your work experience document from … [Baking Firm]. The claimed period of employment with … [Baking Firm] was from 01 November 2006 to 24 October 2007. Your TRA skills assessment was issued on 13 March 2008.

   Your 485 subclass visa was granted on 28 May 2010 and remained in effect until 28 November 2011.

   It is therefore my assessment that your TRA skills assessment was issued to you on the basis of the 900hr work experience documents from … [Baking Firm].

   On 4 November 2011, a … [Mr Z] pleaded guilty to the manufacture and sale of work references matching the one submitted to Trades Recognition Australia (TRA) to obtain your skills assessment. … [Mr Z] has admitted the documents were fraudulent in content and that they were created to assist you to apply for permanent residence in Australia.

   As a result of these events we have reason to believe that the skills assessment submitted as part of your 886 visa application may be a bogus document as it has been obtained because of a false or misleading statement.

   You may provide comment on the information that is considered to be non-genuine, and specify if you believe there are any compelling circumstances affecting the interests of Australia, or compassionate or compelling circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen, to justify the waiver of PIC 4020 and the grant of the visa.

   CB 62. Mr Singh was given 28 days to respond: CB 63;

   l)the Department’s August 2012 Letter attached documents from court proceedings concerning Mr Z being:

   i)statements in the matter of Mr Z dated 21 April 2011: CB 66-75 and 77-86;

   ii)a record of evidence from a warrant dated 23 November 2008: CB 76;

   iii)statement in the matter of DIAC v [name deleted]: CB 87-92;

   iv)Mr Z - Summary of taped record of interview: CB 93 and 134; and

   v)Mr Z - Agreed summary of material facts: CB 94-133, which includes reference to work references prepared by Mr Z in relation to both the Cake Shop: CB 103-104 and the Baking Firm: CB 117-118;

   m)on 13 September 2012, Mr Singh’s new migration agent (“Second Migration Agent”) responded to the Department’s letter: CB 135-136 by providing a copy of a letter by Mr Singh stating that he had genuinely worked at the Baking Firm, that no documents submitted by Mr Singh related to the Cake Shop and that the First Migration Agent had provided him with the wording or content for the Baking Firm Reference: CB 137-138 (Mr Singh’s September 2012 Response”);

   n)Mr Singh’s September 2012 Response is as follows:

   This is my submission in response to your email dated 17th august 2012. I draw your kind attention to the fact that I have genuinely worked in … [Baking Firm] shop located at … [address deleted], from 01/1112006 to 24/10/2007 as an Assistant Pastry Cook.

   First of all as you are aware the case of Singh v Minister for Immigration & Anor [2012] FMCA 145 in the Federal Magistrates Court determined that at the relevant time the TRA was not validly appointed. It follows therefore that any statement made to the TRA whether true or false could not enliven obligations under PIC4020.

   As this application was lodged on 18th June 2010, so Migration Regulations 1994 applicable at the time of application for subclass 886, doesn't have requirement at time of decision to satisfy PIC-4020. So, why I have been asked to satisfy this criteria? It is so surprising.

   After this I want to say regarding comment that the same experience letter which I mentioned above was submitted to Trades Recognition Australia at the time of my skills assessment as my employer … [name deleted (“Mr T”)] signed this letter. The statement clearly states all the roles & responsibilities; I performed as Assistant Pastry Cook. On lodgement of my application for skills assessment the concerned TRA assessor thoroughly checked and confirmed my skills by telephone verification with my employer, … [Mr T] after his full satisfaction he issued me successful skills assessment. My Skilled Graduate 485 visa was also issued to me on that skills assessment. Every type of legal documents and evidence are showing that my work reference is from … [Baking Firm] and verified.

   But in your second email you mentioned that my work reference letter is provided from … [Cake Shop] whereas, none of my documents, which are, submitted to TRA, TR or PR files, related to … [Cake Shop]. I never heard this name before. I can't understand what is the reason behind of this, why are you attaching my work reference with … [Cake Shop] and why you believe. I have evidence that my work experience is from … [Baking Firm] and is genuine.

   Actually in my first response to your email I mentioned that I don't know who is … [Mr Z], but after reviewing your second email documents and information from some other people I get to know that … [Mr Z] was a teacher at … [name deleted (“College”)] where I studied, but he never taught to us. My teacher was … [name deleted]. I don't have any type of concern with … [Mr Z]. In your email you mentioned that the wording or content of my work reference is matching with the reference manufactured by … [Mr Z], I am not sure about these things. I applied my skill assessment to TRA DEPT through my migration agent … [name and address deleted] he gave me the wording or content for my work experience letter. Then I had given this wording or content to the owner of … [Baking Firm], … [Mr T] where I worked. After reading, checking and satisfying by everything he made a work experience letter and signed it for me. So I don't know how you are matching my work reference with … [Mr Z’s] work reference.

   Hoping to get favorable response from you soon.

   CB 137-138;

   o)on 10 July 2014, the Delegate refused to grant Mr Singh the Skilled Residence Visa: CB 149-158. Relevantly, the Delegate said as follows:

   In considering the evidence and information before me I have given significant weight to the admissions made in the taped record of interview [of Mr Z] on 11 November 2009. The individual admitted and subsequently pleaded guilty to the design, production, and sale of work references from … [Baking Firm]. These work references were manufactured and sold to assist GSM visa applicants to obtain positive skills assessments.

   The documents you provided to TRA in support of your claimed 900 hours work experience are from … [Baking Firm]. The individual's admissions and subsequent guilty plea to the design, production and sale of work references from … [Baking Firm] to assist GSM visa applicants to obtain positive skills assessments therefore give rise to a very strong inference that the supporting documents you provided to TRA are also fraudulent.

   In my assessment, you have failed to provide sufficient evidence, including the provision of independently verifiable third party documents to substantiate your employment claims. Further, you have not provided sufficient evidence to counter the adverse inference drawn about the probable fraudulent nature of the documents you provided to TRA, for the reasons I have outlined.

   I also note that it is not relevant whether TRA was validly appointed as an assessing authority at the relevant time. To enliven PIC 4020, it is sufficient you provided a document to an officer that was obtained because of a false or misleading statement.

   Based on the evidence and information before me, I am satisfied that the skills assessment with the reference number TRA08/062205899 you submitted to an officer of the department on 13 July 2010 is a bogus document within the meaning of subsection 97(c) of the Act because I reasonably suspect it is a document that was obtained because of a false or misleading statement made to TRA, whether or not made knowingly, about your claimed 900 hours work experience from … [Baking Firm]. Therefore you do not satisfy PIC 4020(1).

   CB 156-157;

The application to the Tribunal for review and the Tribunal hearing

1. On 30 July 2014, Mr Singh lodged an application with the Tribunal for review of the Delegate’s Decision: CB 159-160.

2. On 6 January 2015 internal Departmental correspondence (“January 2015 Departmental Correspondence”) refers to two exhibits in relation to “Lakhwinder SINGH” found as a consequence of a search warrant, presumably the one served on Mr Z, and proceeds as follows:

   … Both work references are from … [Cake Shop] and are identical. I have attached both of the exhibits for your reference.

   The … [Cake Shop] work reference found during the search warrant is almost identical to the work references submitted to … [Department] in association with Lakhwinder Singh’s Skilled - [VB 886] Sponsored (Full Fee) visa application and VB 485 visa application. The only difference between the work references is that they are from different employers (… [Cake Shop] versus … [Baking Firm]) and the content is slightly different.

   CB 172-173.

3. Each of the Cake Shop work references referred to in the preceding paragraph is on Cake Shop letterhead addressed “TO WHOM IT MAY CONCERN” and with a first paragraph which reads as follows:

   This reference letter is for Mr. Lakhwinder Singh (D.O.B. 17/07/1979) who worked for us as a Part time Pastry Cook. He worked from 28/12/2006 to 26/01/2008. He has completed more than 900 hours of work with us. He has worked 15-20hrs a week

   CB 176 and CB 184.

4. On 21 January 2015 the Tribunal wrote to Mr Singh (through the Second Migration Agent), pursuant to s.359A of the Migration Act, inviting him to comment on potentially adverse information, arising principally from the Departmental investigation into, and the criminal prosecution of, Mr Z: CB 191-195, the particulars of the information being as follows:

   • An investigation was conducted into … [Mr Z], formerly a teacher at … [College]. … [Mr Z] admitted to being involved in creating fraudulent documents for skilled migration purposes which included work reference letters from approximately 40 different employers. … [Mr Z] gave a police statement where he stated that he created these fraudulent documents for students to use in their attempts to obtain “PR” (permanent residency) in Australia. He stated that be created the false work reference letters to show that the student had completed 900 hours of work in a trade.

   • In the police statement made by … [Mr Z] dated 21 April 2011; … [Mr Z] stated that … [Baking Firm] was one of the businesses that was involved in providing false work reference letters to students to obtain skills assessments from TRA for skilled visa applications. … [Mr Z] stated that he had been employed at … [College] from the beginning of 2006 until November or December 2007. When he was working there, the owners approached him and asked if he could help them out by arranging placements for international students at various employers and help them get their 900 hours voluntary work experience so that they could obtain permanent residency. … [Mr Z]stated that … [Mr T] had electronic copies of all the false work references he manufactured concerning … [Baking Firm]. Mr Z also stated that … [Mr T] from … [Baking Firm] was one of a group of employers that agreed for him to sign work reference letters on his behalf. He stated that these employers would read the first few paragraphs of a copy of the work reference and could see that the work experience dates were prior to any student intending to start work. … [Mr Z] stated that all the employers knew that the students were not going to complete the full 900 hours as the students had already paid for the reference prior to commencing any voluntary work experience. He had an agreement with the employers that they would verify false employment claims if TRA or the Department of Immigration checked.

   • In the police statement, … Mr Z made reference to the search of his residence on 29 September 2009 by AFP officers and Department of Immigration Investigators where they located about 1025 documents on a USB stick he possessed. He confirmed that he falsified these work references by creating the businesses' letterheads and using the written job descriptions that he obtained from various migration agents. He stated that these documents were used by international students in support of skills assessment applications submitted to TRA, and these assessments were then subsequently used in support of General Skilled Migration visa applications lodged with the Department of Immigration. … [Mr Z] stated that he supplied the fraudulent documents and was paid a fee per document.

   • In an unrelated matter that was before this Tribunal, … [Mr Z] from … [Baking Firm] gave evidence that only two volunteers completed 900 hours of work experience at … [Baking Firm]. He provided the names of those two volunteers. Your name was not mentioned by … [Mr T].

   This information is relevant to the review because Clause 886.225, which applies to your visa applications, requires you to meet the requirements of public interest criterion 4020.

   The Tribunal might find that this information constitutes probative evidence that the contents of your work reference were false or misleading in relation to the work experience you claim to have undertaken at … [Baking Firm];

   The Tribunal might also find that you submitted that work reference to Trades Recognition Australia, which then resulted in the issue of a favourable skills assessment to you that you then submitted to the Department;

   As a result, the Tribunal might find that there is probative evidence that you have given, or caused to be given, to the Minister, a departmental officer, or Trades Recognition Australia as a relevant assessing authority, a bogus document (as defined by section 97 of the Act), or information that was false or misleading in a material particular, in relation to your application for a subclass 886 visa;

   If the Tribunal makes this finding, then it might find that you do not meet the requirements of subclause 4020(1) because it could not be satisfied that there was "no evidence" that you have given, or caused to be given, to the Minister, a departmental officer, or Trades Recognition Australia as a relevant assessing authority a bogus document (as defined by section 97 of the Act), or information that was false or misleading in a material particular, in relation to your application for a subclass 886 visa; and

   Unless the Tribunal is satisfied that there are 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 granting the visa and waiving the application of public interest criterion 4020 to you, the Tribunal might find that you do not meet the requirements of public interest criterion 4020 and clause 886.225 at the time of its decision.

   As a result, if you do not meet this clause, the Tribunal might have no alternative other than to affirm the decision under review.

   CB 193-195.

5. On 24 January 2015 Mr Singh requested to be provided with all written material in the Tribunal and Department files relating to his Skilled Residence Visa application: CB 197-198.

6. On 2 February 2015 Mr Singh was provided with partial access to the Department’s file: CB 202-204. The Second Migration Agent confirmed that access to the Tribunal’s file was not required: CB 205.

7. On 11 February 2015 the Second Migration Agent wrote to the Tribunal indicating that she was enclosing a response from Mr Singh (“Mr Singh’s February 2015 Response”), a letter from the Australian Taxation Office regarding his pay from a bakery where he worked as a bakery cook after the voluntary work with the Baking Firm, and an email from the First Migration Agent sending Mr Singh the format of the work experience letter which he says he provided to the TRA: CB 210.

8. Mr Singh’s February 2015 Response included the following:

   Employment at … [Baking Firm]: I went to numbers of bakeries with my resume but they were already having required numbers of staff mainly overseas students working there. Finally I went to … [Baking Firm] located at … [address deleted] on 22/10/2006 and met … [Mr T] the owner. He asked me a few general questions to see my attitude/ aptitude towards work since I was not skilled in the bakery job at that time. He made it clear to me that no salary will be paid to me during the period of employment and if I wished I can work on a voluntarily basis to gain required experience/ skills and I readily agreed to it. He took me around the bakery and showed me how he would expect me to work in the occupation that may include all kind of cleaning work besides my trade level work. I promised him to work hard and measure to his expectations.

   Course at … [College]: I successfully completed my course of Certificate III in food processing (retail baking) and while doing this course I continued working at the … [Baking Firm]. It offered me a good opportunity to gain good practical skills in my occupation in the commercial environment while learning theory and a little practical experience in the classroom environment.

   Commencement of volunteer work at … [Baking Firm]: He asked me to come on 30/10/2006 when someone will leave the work. I reported to him on 30/10/2006 and after a brief conversation he asked me to come in proper work wear to commence work on 01/11/2006. I had to struggle in the beginning to learn the practical aspects of the job and being a keen learner I overcame it and was able to perform my assigned tasks.

   Completion of work hours at the … [Baking Firm]: I worked at … [Baking Firm] from 01/11/2006 to 24/10/2007 in flexible shifts and my work hours were within my permitted work right as per my student visa conditions. During this period I completed mandatory work hours to meet TRA requirements.

   My TRA assessment based on my experience in the … [Baking Firm]: I sought advice from … [First Migration Agent] for the work experience format and accordingly requested … [Mr T] to look at the points given in the format and include the relevant points related to my work in my work experience letter. I believe my work experience was prepared with the help of the work format I provided. I attach copy of my e-mail as evidence which I received from my … [First Migration Agent] on 25/02/2008 with attachment of experience letter format.

   Verification by TRA assessment officer: I was told by my owner about the telephonic verification of my employment by TRA officer. I believe based on this verification TRA issued me positive assessment.

   Refusal of my visa application by the delegate: The decision of the delegate is based on the information received from … [Mr Z’s] memory stick and … [Mr T’s] statement related to my work experience certificate for TRA assessment.

   My comments on the above adverse information: I wish to submit the following to support my case against the adverse information linked to my name that resulted in my visa refusal:

   a) Confusion at the end of the delegate who sought my comments on 17 Aug 2012: On 17 August 2012 I received an invitation to comment by the visa officer that stated ''The attached … [Mr Z] documents show that you were provided with a work reference from … [Cake Shop]. In drafting this correspondence to you I have also reviewed the documents you provided in support of your Subclass 485 Skilled Graduate application."

   The Issue for the MRT to consider is the blatant mistake/ confusion of the delegate who has maintained that my work reference letter was provided from … [Cake Shop], whereas, my work reference was related to … [Baking Firm]. It is beyond my comprehension that why my case was clubbed with … [Cake Shop] and how the delegate came to the conclusion of deciding that.

   b) Possible circumstances for my particulars appearing in … [Mr Z’s] memory stick or computer:

   • As stated by … [Mr Z] in his court case … [College] used to provide him with particulars of students attending food processing course in retail bakery for arranging work experience for them for their TRA;

   • Obviously the possibility of my name appearing in the list of students found in … [Mr Z’s] memory stick cannot be ruled out; or

   • … [Mr Z] might have got my particulars from … [Mr T] while routinely dealing with him for other students work experience;

   • There is another possibility … [Mr Z] would have taken my name from … [Mr T] my employer to … [College] management that he was taking care of all their students since he was employed as a teacher.

   • … [College] never made compulsory for students to seek employment/ work experience through … [Mr Z]; and

   • It is quite possible that … [Mr Z] being involved for the first time in fraudulent activity might have tried to please the prosecution, for the sake of lesser punishment, by giving out or confirming all the names found in the memory stick though many of the students might have not been referred by him to various employers;

   • I believe that I am a victim of … [Mr Z’s] unwarranted cooperation with the prosecution for winning over the favour for lesser punishment.

   c) Statement by … [Mr T] in the court where my name has not been mentioned as a genuine volunteer work employee for issue of work experience for TRA assessment: I wish to submit that … [Mr T] has verified my work experience to TRA and here his statement to court is contrary to his verification to the TRA. Due to the prevailing environment related to numbers of fraud at the time followed by criminal case against … [Mr Z]. … [Mr T] would have found it safe to deny since accepting the genuineness of other students who worked voluntarily would have subjected him to more police scrutiny, documentary evidences, tarnished his and his business name and slur his image who was not a professional law breaker. The police might have used verbal recorded statement of … [Mr Z] to seek favourable statement to strengthen their case and … [Mr T] became an easy tool for that. It needs to be considered that … [Mr T] has given his evidences under such circumstances to save the image of his name and business while playing with my career, ruining my life and slurring my image.

   d) My employment with good pay in … [name and address deleted “Further Baking Firm”] as a bakery cook from last week of Oct 2007 to end of Feb 2008 proves that I had acquired requisite skills in my occupation while working at … [Baking Firm]. It strongly proves that my volunteer employment at … [Baking Firm] was genuine and accordingly my work experience provided to TRA was genuine. As such I have not provided fraudulent documents to TRA for my skills assessment. Please refer to my payment summary 30 June 2008 document for this employment.

   e) On the contrary the decision of the delegate to refuse my visa application with PIC 4020 has subjected me to unbearable stress with no fault of mine.

   I request the MRT member to consider the following in my case:

   • I have worked genuinely at … [Baking Firm] and my work experience is genuine and ,relates to the tasks I performed during the period;

   • TRA or any other authority may test my skills as per my work experience at any time;

   • I am victim of circumstances as my name has wrongly appeared in … [Mr Z’s] records since … [College] used to provide the name of students to him who were unable to organise their work experience at their own (refer to statement by … [Mr Z]) though I never approached the college for arranging work for me; and

   I and my wife have suffered immensely due to the allegation of fraud by the delegate and refusal of my visa application with application of PIC 4020.

   Submission: In view of the above I wish to make a humble submission to the MRT Member that my work experience is genuine in all aspects. My case be remitted to the department with favourable decision.

   CB 211-213.

9. The letter from the ATO dated 4 September 2012 indicated gross payments of $7,596 from the trustee of a trust for the Further Baking Firm for the year ended 30 June 2008: CB 214-215.

10. The email from the First Migration Agent dated 25 February 2008 attached a document described as “Lakhwinder Exp.lett….doc.”: CB 216, which is a reference letter, seemingly a draft of the Baking Firm Reference, dated 15 February 2008, and in the following terms:

    TO WHOM IT MAY CONCERN

    This reference letter is for Mr. Lakhwinder Singh (D.O.B 17/07/1979) who worked for us as an Assistant Pastry Cook. He worked from 01/10/2006 to 24/09/2007 under the supervision of Head Baker /Pastry Chef Mr.ABC. He used to work for 5 to 20 hours per week, but he worked for more than 20 hours/week during his breaks & Christmas holidays. He did more than 920 hours of work as Assistant Pastry Cook (unpaid & Voluntary) while working with us. He worked with us to get work experience because he has also finished Certificate III in Food Processing (Retail Baking) - Cake and Pastry.

    He was found to be a quick learner with great deal of understanding. His communication skills while dealing with his work colleagues, customers and suppliers were excellent. His quality performance in cooking reflected in compliments given by our customers on many occasions.

    From the very beginning of him joining us, he displayed a dedication to learn and performed all aspects of tasks assigned to him to the fullest degree. He was disciplined and always on time. He had a good pace in preparing meals and on busy times he handled the pressure well and needed no supervision in preparing meals.

    His duties included but not limited to:

    • Welcoming, greeting and serving customers;

    • Checking the cleanliness and operation of equipment and premises to ensure compliance with occupational health and safety regulations;

    • Unpacking or opening; inspecting and checking fruits and other ingredients before storing them in refrigerator or freezer;

    • Preparing, cleaning and cutting food including Butter, pineapple, lemon, Eggs, Baking powder etc;

    • Assisting in the preparation of pastries and cakes, monitoring quality and consistency of produced items;

    • Emptying, cleaning and greasing baking trays, tins and other cooking equipment;

    • Loading buns, pastries and cakes into ovens, and unloading cooked products;

    • Responsible for baking different kinds of muffins for example- chocolate, raspberry, blueberry, mango, etc. He was involved in making different kinds of continental cakes, tarts (for example fruit cakes, orange almond cake, banana cake, lemon coconut slice, mud cake etc);

    • Decorating and presenting of the cakes and bakery products according to basic principles such as contrast in colour, variety in the shapes of ingredients and components, texture, height, gloss, dusting with icing sugar, cocoa powder or ground spices;

    • Kneading, maturing, cutting, molding and shaping pastry dough and operating dough baking and rolling equipment;

    • Monitoring forming machines for crumpets, muffins and wafers;

    • Glazing buns and pastries, and decorating cakes with cream or icing;

    • Checking ingredients required for menu, any daily or seasonal specials, or for function, catering orders etc;

    • Mixing, baking, filling, icing and decorating all kinds of cakes and pastries;

    • Working with ovens and other cooking equipment as per requirement;

    • Preparing and baking specific Chocolate Cake, chocolate mud cake, Banana Cakes according customer needs;

    • Weighing mixing or kneading (manipulate with hands), maturing, moulding and shaping mixture before baking;

    • Loading and unloading mixture into ovens using tins and trays;

    • Operating and monitoring baking equipment and temperature to control appearance of products;

    • Glazing or decorating with icing or cream, ordering baking supplies from wholesalers;

    • Checking and maintaining the cleanliness of equipment and utensils to make sure if health and safety regulations were met;

    • Serving customers, Supervising and undertaking on-the-job training of apprentices;

    • Maintaining occupation health safety procedures etc;

    • Baking cakes to meet special dietary requirements.

    • Checking all the utensils for baking is on proper place and clean.

    • Helping other colleagues where they needed.

    • Co-operating with front of house and waiting staff.

    • Proper handling of equipment used; knives, moulds, deep freezer, cake stand, microwave, oven, food processor etc.

    • At end of night shift, placing unused food in appropriate storage, disposing off spoiled or unusable food;

    • Checking storage doors are closed; temperatures are fine for the refrigerator and freezer;

    • Planning orders in relation to quantity of ingredients and timing for preparation and prioritizing for needs for following days;

    • Receiving and storing efficiently and safely according to FIFO method, knowledge of the market for different types of products and services, customer preferences and needs, and ways of meeting requirements, both stated and unstated and assisting the chief in serving time and overseeing meal services.

    • Following established procedures knowledge and understanding of the implications of disregarding those procedures, demonstration of safe work practices for particular job roles knowledge and understanding of the legal requirement to work in accordance with health, safety and security procedures.

    • Following workplace hygiene and safety procedures and making sure kitchen is hygienic and functional.

    • At end of shift, placing unused food in appropriate storage, disposing off spoiled or unusable food.

    • Checking if storage doors were closed; temperatures were fine for the refrigerator and freezer

    • Good organization in his work load, prioritizing tasks, maintaining the cleanliness and tidiness of the food services area including dealing with disposables and recyclables and food presentation of high standards with flavor.

    Tools and Equipments used:

    Peeler, Yeast Scale, Scoop, Baking tins and trays, Commercial dish washer, Whisks, Blender, Wooden Spoon, Rolling Pin, Graters, Pastry Brushes, Sugar Grinders, bread slicer, Cake stand, Scissors, Icing Bags, Tablespoons, knives, Fridges, Oven, Freezers, Baking Trays, Mixer, Slicer, Microwave, Scale Measuring Spoons and cups, Large and Small Plastic and Steel Containers, Various types of Frying Pans, Sauce pots, Knives , Pairing Knife, Bread Knife, Carving Knife, Strainers, Mixing Bowls.

    Performance level:

    Mr. Lakhwinder Singh was an efficient and safe worker who met high standards that set an extra service facility. He proved himself to be a reliable, capable and honest employee. He has pleasant personality with good communication skills and he always displayed a high level of enthusiasm. It is also definite that he will improve his performance with experience.

    If you require any further information regarding this, please feel to free to contact me on [phone] or Mob: [phone].

    Yours sincerely,

    ABC

    Manager/Owner

    CB 217-220 (transcribed without amendment from the CB copy);

1. The above draft Baking Firm Reference is identical to the two Cake Shop references referred to in the January 2015 Departmental Correspondence, save for the first paragraph of the draft Baking Firm Reference which appears to contain details particular to Mr Singh’s weekly and total working hours and dates of work.

2. On 13 February 2015 Mr Singh was invited to appear before the Tribunal on 19 March 2015 to give evidence and present arguments: CB 221-224. Mr Singh appeared at the Tribunal hearing on 19 March 2015, with the assistance of a Punjabi interpreter: CB 229.

3. On 25 March 2015, Mr Singh’s Second Migration Agent emailed submissions to the Tribunal from Mr Singh: CB 233, in relation to the waiver of PIC 4020 on compassionate grounds: CB 234. It is unnecessary to set out or summarise those submissions as no ground of judicial review in the Amended Judicial Review Application relates to the issue of waiver of PIC 4020.

Tribunal Decision

1. The Tribunal Decision began by setting out the nature of the application to the Tribunal for review of the Delegate’s Decision: CB 239 at [1], and the essence of the Delegate’s Decision to refuse the grant of the Skilled Residence Visa, noting that:

   … The delegate found that the skills assessment letter was obtained as a result of a false and misleading statement that the applicant undertook 900 hours of work experience at the … [Baking Firm].

   CB 239 at [2].

2. In the introductory paragraphs the Tribunal also noted that it issued a summons to the Secretary of the Department to produce documents, and that:

   … On 6 January 2015, the Department informed the Tribunal that no electronic evidence of the work reference letter from … [Baking Firm] was located on the USB stick ceased during the execution of the warrant at … [Mr Z’s] premises. However, the Department further informed the Tribunal that 'this client appears on the warrant spread sheet' as two reference letters from … [Cake Shop] containing the applicant's personal details were located on the USB stick ceased during the execution of the warrant at … [Mr Z’s] premises.

   CB 239 at [4].

3. The Tribunal thereafter set out procedural matters leading up to the Tribunal hearing on 19 March 2015: CB 239-240 at [5]-[8].

4. The Tribunal then summarised Mr Singh’s oral evidence, and in particular:

   a)noted his completion of a Certificate III in Food Processing (Retail Baking) course at College in July 2007 and a Certificate IV and Diploma in Business Management at another education institute in May 2008, and his claimed work experience at the Baking Firm from 2 November 2006 to 24 October 2007, and his work at the Further Baking Firm in Melbourne from October 2007 to February 2008, after which he moved to Perth in July 2008 and has since worked as a taxi driver: CB 240 at [10]-[11];

   b)confirmed that he provided the Skills Assessment to the Department with his Skilled Residence Visa application, and that the Baking Firm Reference had been provided with his Skills Assessment application to TRA: CB 240 at [13];

   c)said he did not know Mr Z, and did not discover that he was a teacher at the College until so advised by the Department, and he had never asked for Mr Z’s help in finding a work placement: CB 240 at [14];

   d)that he was offered unpaid work experience by Mr T from the Baking Firm as a result of a random approach to that bakery, amongst others in Melbourne: CB 240 at [14];

   e)Mr Singh’s claims that he worked evening shifts at the Baking Firm four days a week from 4.00pm to 9.00pm and that the bakery kept records, via Mr T, but Mr Singh never saw those records, but rather kept his own record of hours worked which he provided to the First Migration Agent, and Mr Singh is no longer in possession of that record: CB 240 at [15];

   f)that it was the First Migration Agent, who drafted the Baking Firm Reference, which the owners of Baking Firm signed: CB 240 at [15]; and

   g)that he did not provide independent evidence of his work at the Baking Firm: CB 240 at [16].

5. In considering Mr Singh’s claims and evidence the Tribunal referred to the relevant criteria required by cl.886.225 of Schedule 2 to the Migration Regulations and, in particular, PIC 4020 the relevant provisions of which are set out above: see [35] below: CB 241-242 at [21]-[22].

6. The Tribunal then asked the question as to whether Mr Singh had given, or caused to be given a bogus document, or information that is false or misleading in a material particular, to a person prescribed in PIC 4020, and set out the relevant provisions of PIC 4020, and noted that the term “bogus document” was defined in s.97 of the Migration Act (as it then was), and that the reference in s.97 of the Migration Act to a document that was obtained because of false or misleading statement contained no requirement that it be relevant to the criterion for the grant of a visa, citing Batra v Minister for Immigration & Citizenship [2013] FCA 274; (2013) 212 FCR 84; (2013) 138 ALD 266 (“Batra - Appeal”): see CB 242 at [23].

7. The Tribunal went on to observe in relation to PIC 4020 that it applied whether or not the bogus document or false and misleading information was provided by an applicant knowingly or unwittingly, and that it referred to information that was false, but that it was not necessary for the Tribunal to conclude that an applicant was aware that the information was purposely untrue, but that an element of fraud or deception by some person was necessary to attract the operation of the provision, citing Trivedi v Minister for Immigration & Border Protection [2014] FCAFC 42; (2014) 220 FCR 169; (2014) 141 ALD 252 (“Trivedi”): see CB 242 at [23]-[25].

8. The Tribunal then asked what information was before the Tribunal. Given the nature of the grounds of review it is convenient to set the information found by the Tribunal to be before it out in full, as follows:

   26. An investigation was ·conducted into … [Mr Z], formerly a teacher at … [College]. … [Mr Z] admitted to being involved in creating fraudulent documents for skilled migration purposes which included work reference letters from approximately 40 different employers. … [Mr Z] gave a police statement where he stated that he created these fraudulent documents for students to use in their attempts to obtain "PR" (permanent residency) in Australia. He stated that he created the false work reference letters to show that the student had completed 900 hours of work in a trade.

   27. In the police statement made by … [Mr Z] dated 21 April 2011; … [Mr Z] stated that … [Baking Firm] was one of the businesses that was involved in providing false work reference letters to students to obtain skills assessments from TRA for skilled visa applications. … [Mr Z] stated that he had been employed at … [College] from the beginning of 2006 until November or December 2007. When he was working there, the owners approached him and asked if he could help them out by arranging placements for international students at various employers and help them get their 900 hours voluntary work experience so that they could obtain permanent residency. … [Mr Z] stated that … [Mr T] had electronic copies of all the false work references he manufactured concerning … [Baking Firm]. … [Mr Z] also stated that … [Mr T] from … [Baking Firm] was one of a group of employers that agreed for him to sign work reference letters on his behalf. He stated that these employers would read the first few paragraphs of a copy of the work reference and could see that the work experience dates were prior to any student intending to start work. … [Mr Z] stated that all the employers knew that the students were not going to complete the full 900 hours as the students had already paid for the reference prior to commencing any voluntary work experience. He had an agreement with the employers that they would verify false employment claims if TRA or the Department of Immigration checked.

   28. The 'Agreed Summary of Material Facts', indicates that the period when the review applicant claims to have undertaken work experience at … [Baking Firm] (1 November 2006 to 24 October 2007) coincides with the period when … [Mr Z] was engaged in his fraudulent activities.

   29. In the police statement, … [Mr Z] made reference to the search of his residence on 29 September 2009 by AFP officers and Department of Immigration Investigators where they located about 1025 documents on a USB stick he possessed. … [Mr Z] that he falsified these work references by creating the businesses' letterheads and using the written job descriptions that he obtained from various migration agents. He stated that these documents were used by international students in support of skills assessment applications submitted to TRA, and these assessments were then subsequently used in support of General Skilled Migration visa applications lodged with the Department of Immigration. … [Mr Z] stated that he supplied the fraudulent documents and was paid a fee per document.

   30. The evidence from the warrant executed on … [Mr Z’s] premises included an electronic copy of the work reference letter from … [Cake Shop] containing the applicant's personal details. (Exhibit" master numbers 10 and 4 - DIBP folio 45). Accordingly, there is evidence before the Tribunal that a copy of the work reference letter with the applicant's personal details was found during the execution of a warrant on … [Mr Z’s] residence. There is thus evidence that links the applicant to … [Mr Z’s] fraudulent activities.

   31. The Tribunal has a number of concerns about the authenticity of the applicant's work reference from … [Baking Firm]. The Tribunal has placed considerable weight on the information relating to the Department's investigation into work references from … [Baking Firm], as set out in the delegate's decision and in information provided to the Tribunal by the Department as put to the applicant in the Tribunal's letter of 21 January 2015.

   32. The Tribunal gives significant weight to the evidence obtained from … [Mr T] in an unrelated matter that was before this Tribunal. He stated that only two volunteers completed 900 hours of work experience at … [Baking Firm] and provided the names of those two volunteers. The review applicant's name was not mentioned by … [Mr T].

   33. Notwithstanding the above information, the review applicant maintains that he completed work experience at … [Baking Firm] as stated in the work reference letter provided to the TRA and denies that he provided bogus document to the Department.

   34. The Tribunal accepts that the applicant may have performed a small amount of work at … [Baking Firm] to familiarise himself with the premises, however, in light of the concerns above, the Tribunal does not accept that the applicant performed over 900 hours of work at … [Baking Firm] as a pastry cook as alleged in that reference.

   35. He claims that he was able to find employment at … [Further Baking Firm] from October 2007 to February 2008 because of his skills acquired at … [Baking Firm]. The Tribunal gives little weight to this evidence because, even if the review applicant continued to work as a pastry cook for another five months, this of itself is not evidence that he in fact worked for … [Baking Firm]. The Tribunal also notes that, according to the applicant's oral evidence, he had been driving taxis since 2008 and this remains his current job.

   36. Based on the evidence before it, including the oral evidence given by the review applicant during the course of the hearing, the Tribunal finds that review applicant submitted with his application for the skills assessment to TRA the work reference letter dated 15 February 2008 as evidence that he worked as a volunteer pastry cook at … [Baking Firm] from 1 November 2006 to 24 October 2007 and that he submitted with his application for a subclass 886 visa a TRA skills assessment letter dated 13 March 2008 as evidence of successful skills assessment in his nominated occupation of a pastry cook.

   37. Based on the evidence before it, which the Tribunal considers of sufficiently probative value, the Tribunal finds that the work reference letter given to TRA contained a false statement that the review applicant completed more than 920 hours' work experience as a pastry cook.

   38. The Tribunal finds that the skills assessment of 13 March 2008 (reference/receipt number TRA08/062205899) from TRA was obtained because of a false or misleading Statement and that the skills assessment is a bogus document, being a document which the Tribunal reasonably suspects was obtained because of a false or misleading statement, whether or not made knowingly (s.97(c) of the Act).

   39. Accordingly, the Tribunal is not satisfied that there is no evidence that the review applicant has given, or caused to be given, to the Minister, or an officer of the Department, the Tribunal or a relevant assessing authority a bogus document or information that is false or misleading in a material particular in relation to his application for a subclass 886 visa. Accordingly, the Tribunal finds that the review applicant does not meet the requirements of paragraph 4020(1)(a).

   CB 242-244 at [26]-[39].

9. The Tribunal affirmed the Delegate’s Decision not to grant Mr Singh a Skilled Residence Visa: CB 245 at [46].

Grounds of judicial review

1. There are various possible grounds of judicial review in this matter. The Judicial Review Application contains four grounds of review. The Amended Judicial Review Application contains a single poorly expressed ground which repeats one of the grounds of the Judicial Review Application. Mr Singh’s October 2015 Affidavit contains what might be further grounds, again poorly expressed. In the circumstances, the Minister addressed, and the Court has considered, each such ground formulated as best the Court could, given the material before it.

2. The grounds of the Judicial Review Application as originally filed are as follows:

   1. The Tribunal erred in concluding that Trade Recognition Australia is the relevant assessing authority for the occupation of cook.

   Particulars

   a) There is no evidence that Trade Recognition Australia or any other person or body has been approved in writing by the Education Minister or the Employer Minister for the purpose of reg. 2.26B(1A), to be the relevant assessing authority for the occupation of cook.

   b) The Tribunal erred in determining that instrument IMMI 11/068 for the purpose of reg.2.26B(1), relevantly specifying Trade Recognition Australia to be the relevant assessing authority for the occupation of cook, is valid.

   c) Without a validly approved and specified (reg.2.26B(1) and (1A) relevant assessing authority for the occupation of cook, cl. 880.230(1) is not capable of being met by the applicant. Thus in the circumstances, cl.880.230(1) is not applicable to this application.

   2. The Tribunal erred in law in finding the applicant did not meet public interest criterion (PIC) 4020(1) in schedule 4 to the migration regulations 1994 (regulations).

   Particulars

   a) The Tribunal erred in construing that information given to Trade Recognition Australia were information given to a relevant assessing authority for the purpose of determining whether the applicant [met] PIC 4020(1).

   b) The Tribunal misconstrued or misapplied the definition of “information that is false or misleading in a material particular” as defined in PIC 4020(5). Thus [the Tribunal] failed to consider, from the outset, whether that information was capable of being information that is false or misleading in a material particular, for the purposes of the applicant’s application.

   3. Migration Tribunal giving decision by assuming not on the facts and without giving any proofs.

   4. I have provided all the documents that prove my genuity and Migration Tribunal just by ignoring the facts and have given decision.

   The Court will treat the above grounds as grounds 1, 2, 3 and 4 respectively.

3. The single ground contained in the Amended Judicial Review Application is as follows:

   1. I have provided all the documents that prove my genuinity and Migration Tribunal just by ignoring the facts and have given decision.

   This ground is identical to ground 4 above, save for the spelling of “genuity” and “genuinity”.

4. In Mr Singh’s October 2015 Affidavit Mr Singh appears to raise a number of further grounds, namely that:

   a)he worked at the Baking Firm and has genuine experience;

   b)there are “contradicting statements between immigration department and MRT. one said my experience from … [Cake Shop] and second said I worked at … [Baking Firm]”;

   c)he moved from Perth to Melbourne 7 to 8 years ago, he no longer has connections in Melbourne and doesn’t “know how I can prove my genuinity (sic)”; and

   d)he was not provided with all the information.

   The Court will treat the above grounds as grounds 5, 6, 7 and 8 respectively.

Consideration of the various grounds of judicial review

Bogus documents – the law

1. The relevant legislation and law concerning bogus documents is conveniently and succinctly set out and summarised in the recent judgment of the Full Court of the Federal Court in Arora v Minister for Immigration & Border Protection [2016] FCAFC 35 at [9]-[11] per Buchanan, Perram and Rangiah JJ (“Arora”), as follows:

   9. A visa can only be granted by the Minister or his delegate under s 65 of the Migration Act 1958 (Cth) (‘the Act’) if the criteria for the visa involved have been satisfied: s 65(1). In the case of Mr Arora’s visa, the relevant criteria were specified in various clauses of Schedule 2 to the Regulations. Clause 886 of Schedule 2 required that at the time of the delegate’s decision the applicant satisfy ‘PIC 4020’ (an abbreviation for public interest criterion). The relevant portions of PIC 4020 were as follows:

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

   (a) The application for the visa; or

   
   

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

   
   

   ...

   
   

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

   
   

   ...

   
   

   (5) In this clause:

   
   

   information that is false or misleading in a material particular means information that is:

   
   

   (a) false or misleading at the time it is given; and

   
   

   (b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information.’

   10. By the time the matter got to the Tribunal, the concept of a ‘bogus document’ was defined in s 5 of the Act in these terms:

   ‘bogus document’

   
   

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

   
   

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

   
   

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

   
   

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

   
   

   ...’

   
   

   At the time of the delegate’s decision, the concept was defined in s 97 of the Act in materially the same terms.

   11. The effect of sub-clause (c) of the definition is that if the delegate or the Tribunal reasonably suspected that the TRA issued its skills assessment because of false or misleading statements in the reference purportedly from the cake shop then the TRA assessment will itself be a bogus document, and this is so even if Mr Arora did not know that the cake shop reference was false: see Trivedi v Minister for Immigration and Border Protection [2014] FCAFC 42 at [1], [23]-[28] and [56].

2. The Court notes that at the time of the Tribunal Decision the concept of a bogus document was defined in s.97 of the Migration Act in materially the same terms as presently appear in the definition in s.5 of the Migration Act cited above.

1. In Arora the Full Court of the Federal Court went on to deal with two issue which arose on the appeal in that case, and did so in the following terms, which are directly relevant to Mr Singh’s case:

   13. There are, in fact, only two issues on the appeal. The first is whether the bogus document’s falsity must be material to the outcome of an applicant’s visa application. Mr Arora submits that because the TRA had no power to issue a skills assessment, the skills assessment cannot have been material to the outcome of his visa application and, therefore, the fact that it was a bogus document ought not to matter. To this end, he submits that what PIC 4020(1) refers to is the composite expression ‘a bogus document or information that is false or misleading in a material particular’. The argument is that the words ‘false or misleading in a material particular’ qualify the words ‘bogus document’ and not just the word ‘information’. On this view, not only must the document be ‘bogus’, it must be false or misleading in a material particular. That was said to be significant because of the invalidity of the skills assessment. The second issue was whether, assuming that construction argument was correct, the fact that the skills assessment was invalid also meant that it could not be material.

   14. The appeal can be resolved by reference to the proper construction of PIC 4020(1) without deciding whether the submission about materiality is correct: cf. Singh v Minister for Immigration [2012] FCMA 145.

   15. Properly construed there is no requirement in PIC 4020(1) that the falsity of a bogus document should be relevant to the criteria that the Minister is considering. PIC 4020(1) and the definition in s 5 address separately the falsity, respectively, of information (in PIC 4020(5)) and bogus documents (in s 5). Each has its own particular regime. The definition of ‘bogus document’ in s 5 is not concerned with the truth or otherwise of statements but with the reliability of documentation. It would be a most unworkable outcome if the Minister could not rely on the fact that a document was counterfeit but had to consider, in turn, whether the statements contained in it were, in any event, correct and otherwise relevant to the matters he had to consider. As a matter of formality, it is the definition of ‘bogus document’ in s 5 which will apply unless ‘the contrary intention appears’. For the reasons just given, the contrary intention does not appear and the concept of a ‘bogus document’ is not subject to the gloss suggested by Mr Arora.

   16. Single judges of this court have previously reached the conclusion that a skills assessment can be a bogus document: see Mudiyanselage v Minister for Immigration [2013] FCA 266; Batra v Minister for Immigration and Citizenship [2013] FCA 274 at [61] per Murphy J. The contrary was not suggested on this appeal. Further, in Mudiyanselage Tracey J specifically considered whether the ‘false or misleading in a material particular’ requirement in relation to ‘information’ in PIC 4020(1) applied to bogus documents and concluded that it did not (at [23]-[31]). As will be apparent, we respectfully agree with that conclusion.

   17. In those circumstances, it is not correct that the falsity of a bogus document needs to be relevant to the criteria to be considered by the Minister on the visa application.

   Arora at [13]-[17] per Buchanan, Perram and Rangiah JJ.

2. It followed from the conclusions reached by the Full Court of the Federal Court as set out above in Arora that Mr Arora’s appeal to that Court from a decision of this Court refusing to quash a decision of the Tribunal to affirm a decision of a Delegate wad dismissed: Arora at [18] (and see also [2]-[8]) per Buchanan, Perram and Rangiah JJ.

3. As a judgment of the Full Court of the Federal Court which is directly on point, and in the Court’s view, with respect, plainly correct, Arora is binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ.

Ground 1

1. Contrary to what is asserted by ground 1, the Tribunal did not make a specific finding that the TRA was identified as the relevant assessing authority for the occupation of “cook” for the purpose of reg.2.26B(1A) of the Migration Regulations. Rather, the Tribunal found that:

   a)the Baking Firm Reference contained a false statement that Mr Singh had completed 920 hours of work experience as a pastry cook: CB 244 at [37];

   b)the Skills Assessment had been obtained because of a false or misleading statement and the Skills Assessment met the definition of a bogus document: CB 244 at [38]; and

   c)as the bogus document (the Skills Assessment) had been submitted to the Minister with Mr Singh’s Skilled Residence Visa application: CB 244 at [36], Mr Singh did not meet the requirements of PIC 4020(1)(a): CB 245 at [44].

2. Ground 1 is seemingly based upon the judgment in Singh v Minister for Immigration & Citizenship [2012] FMCA 145 (“Singh-2012”) where it was held that the requirement to apply for, and obtain, a positive skills assessment had no application to a visa application as a consequence of no relevant assessing authority having been specified.

3. Although the Skills Assessment was provided to the Department at a time when the TRA was not specified as the relevant assessing authority, this matter can be distinguished from that of Sharma v Minister for Immigration, Multicultural Affairs &·Citizenship [2014] FCCA 2821; (2014) 291 FLR 289 (“Sharma”) and Singh-2012 on the basis that the bogus document in this case was given by Mr Singh to the Department. Therefore, even if the Skills Assessment provided to the Department by Mr Singh had no legal effect as a Skills Assessment, it “still had a physical reality as a document obtained because of false or misleading information”: Batra v Minister for Immigration & Citizenship & Anor [2012] FMCA 544; (2012) 265 FLR 461 at [50]-[51] per Riley FM (“Batra”), approved in Batra - Appeal, and Mudiyanselage v Minister for Immigration & Citizenship [2012] FMCA 887; (2012) 134 ALD 199 at [20] per Emmett FM (“Mudiyanselage”), approved on appeal in Mudiyanselage v Minister for Immigration & Citizenship [2013] FCA 266; (2013) 211 FCR 27; (2013) 139 ALD 528 (“Mudiyanselage Appeal”), Arora at [15]-[17] per Buchanan, Perram and Ranghiah JJ.

4. The Skills Assessment was a bogus document within the meaning of s.97(c) of the Migration Act, and it was open to the Tribunal to find that in submitting the Skills Assessment to the Department, there was evidence before it that Mr Singh did not meet the requirements of PIC 4020.

5. Ground 1 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.

Ground 2

1. Mr Singh is correct in asserting that cl.880.230(1) of Schedule 2 of the Migration Regulations is not applicable to this application. It was not, however, that clause that was applied by the Tribunal to Mr Singh’s circumstances. Rather, the Tribunal found that cl.886.225 of Schedule 2 of the Migration Regulations was not satisfied by Mr Singh. It was the necessity to consider cl.886.225 of Schedule 2 to the Migration Regulations, and the criteria therein, which meant that Mr Singh had to satisfy PIC 4020, and which therefore led the Tribunal to a consideration of whether or not there was a bogus document within the meaning of s.97(c) of the Migration Act, or whether the bogus document (in this case the Skills Assessment) was obtained because of a false or misleading statement.

2. Mr Singh’s further contention that the Tribunal misconstrued or misapplied the definition of information that is false or misleading in a material particular is incorrect. The Tribunal did not make a finding that any information was false or misleading in a material particular, but rather that the Skills Assessment was obtained because of a false or misleading statement. As such it was not required to consider the definition of information that is false or misleading in a material particular at all: Arora at [15]-[17] per Buchanan, Perram and Rangiah JJ.

3. Ground 2 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.

Grounds 3 and 4

1. It is evident from the Tribunal Decision that the Tribunal considered the evidence provided to it by Mr Singh, as well as information summonsed by it from the Secretary of the Department, and otherwise available on the Departmental and Tribunal files, and made findings based on a consideration of all of the evidence, which included the aforementioned documentary evidence, the volume of which was considerable, and the written submissions and oral evidence given by Mr Singh. The Tribunal clearly had regard to all of the evidence before it in relation to this matter.

2. It is well established that the Tribunal is not required to accept uncritically any or all claims made by an applicant: Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1; FCR at 451 per Beaumont J; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; (1997) 71 ALJR 743; (1997) 144 ALR 567; (1997) 48 ALD 481; CLR at 596 per Kirby J.

3. In this case the Tribunal considered, sifted and weighed the considerable documentary evidence, and Mr Singh’s evidence, before deciding to affirm the Delegate’s Decision, because, like the Delegate, the Tribunal was satisfied that the Skills Assessment was a bogus document, obtained on the basis of false and misleading information provided to the TRA, which had subsequently been provided to the Department.

4. The Tribunal does not need to have rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALR 347; (1994) 34 ALD 347 at 348 per Heerey J; Mukto v Minister for Immigration & Multicultural Affairs [1999] FCA 1801 at [13] per French J; SZVXW v Minister for Immigration & Anor [2016] FCCA 450 at [45] per Judge Emmett. It is thus well established that the making of findings of fact, and the weight to be given to the evidence in the course of making those findings, are matters entrusted to the Tribunal alone. A mere disagreement with the weight being given to a particular claim or document is not jurisdictional error: NBKT v Minister for Immigration & Multicultural Affairs [2006] FCAFC 195; (2006) 156 FCR 419; (2006) 93 ALD 333 at [81] per Young J (Gyles and Stone JJ agreeing); SZNNK v Minister for Immigration & Citizenship [2009] FCA 1386 at [20] per McKerracher J. Where the findings made by the Tribunal as to fact and the consequent conclusion were open to be made, it is not the function of a Court exercising a power of judicial review to interfere with the Tribunal’s fact-finding. To do so would be to conduct a merits review, not a judicial review, and would be contrary to well established principles, regularly applied: Minister for Immigration & Ethnic Affairs vWu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ (“Wu Shan Liang”), Singh v Minister for Immigration & Anor [2015] FCCA 359 at [23] per Judge Lucev; Lodhawala v Minister for Immigration & Anor [2015] FCCA 238 at [34] per Judge Nicholls; Patel & Ors v Minister for Immigration & Anor [2015] FCCA 1624 at [20] per Judge Lucev.

5. The manner in which Mr Singh argued his case possibly suggests that the fact-finding in the Tribunal Decision may have been unreasonable. For Mr Singh to succeed in that regard the Tribunal Decision must be unreasonable in a legal sense, not any other sense. It has been held that:

   … [in] the review of the exercise of a statutory discretion, … unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

   Minister for Immigration & Citizenshipv Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 139 ALD 181 at [76] per Hayne, Kiefel and Bell JJ.

6. There is nothing unreasonable in the relevant legal sense in the Tribunal Decision. The dominant reason for the Tribunal Decision in this matter was not outside the scope and purpose of the Migration Act and the Migration Regulations, but rather, squarely within the terms of s.97 of the Migration Act and PIC 4020, being cl.4020 of Schedule 4 of the Migration Regulations, which was required to be applied by reason of cl.886.225 of Schedule 2 to the Migration Regulations.

7. There was evidence upon which the Tribunal, in the exercise of its discretion to determine the facts, was able to conclude that the Skills Assessment arose because of a false and misleading statement given to the TRA. That evidence included:

   a)tellingly, evidence that Mr Singh’s employer, Mr T, had given evidence to the Tribunal in another matter which indicated that only two volunteers at the Baking Firm completed 900 hours of work experience, and that Mr Singh was not one of those two. This evidence, referred to and relied upon by the Tribunal might, of itself, provide a sufficient basis for the findings in the Tribunal Decision, insofar as it is evidence upon which the Tribunal relied from which it could be inferred that the work and working hours information in the Baking Firm Reference was false and misleading;

   b)the admissions of Mr Z with respect to the preparation of false working references for persons working at both the Baking Firm and the Cake Shop, and the participation of Mr Singh’s employer, Mr T, in that process;

   c)the fact that Mr Z worked at the College which Mr Singh attended, and in respect of which Mr Z prepared references for students at the College (whether known to them or not); and

   d)the failure of Mr Singh to call any evidence which might have corroborated the fact that he worked at the Baking Firm, whether on a paid or voluntary basis. Mr Singh did not summons or call Mr T, did not summons the records which Mr Singh said were kept by Mr T or the Baking Firm as to hours worked by him as a volunteer, did not summons the records which Mr Singh said he gave to the First Migration Agent as to the hours worked by him as a volunteer, and did not call or summons any other person who worked at the Baking Firm at the same times as Mr Singh. The Court appreciates that there may have been difficulties associated with seeking out relevant witnesses and evidence, but that is not to the point, as there is no evidence that Mr Singh even endeavoured to do so.

8. The Tribunal was entitled to, and did, weigh and sift through evidence such as that set out above, as well as Mr Singh’s own evidence, which was to the contrary, particularly as to whether or not he worked the 900 hours at the Baking Firm, and the Tribunal was entitled to form a view, as it did, that the information contained in the Baking Firm Reference was false and misleading, and that therefore the Skills Assessment was false and misleading, and therefore a bogus document. There is no dispute that the Skills Assessment was provided to the Department by Mr Singh. In the above circumstances, there was no lack of a reasonable and intelligible justification for the Tribunal findings, and in particular, that the Skills Assessment was a bogus document within the meaning of s.97(c) of the Migration Act.

9. It may be that a different Tribunal might have believed what was said to it by Mr Singh, and might have found that the Baking Firm Reference did not contain false and misleading information. But in circumstances where, for the reasons set out above, the contrary was also a finding open on the evidence to the Tribunal, what would have been done by a differently constituted Tribunal is not to the point. The exercise of the Tribunal’s discretion to make the findings of fact that it did was within power, and there was, for reasons set out above, no lack of a reasonable and intelligible justification for the Tribunal findings.

10. Grounds 3 and 4 ultimately constitute no more than an impermissible request for the Court to consider the merits of the Tribunal Decision: Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

11. For all of the above reasons, grounds 3 and 4 have not been made out, and do not establish jurisdictional error in the Tribunal Decision.

Ground 5

1. Ground 5 asserts that:

   a)Mr Singh worked at the Baking Firm; and

   b)Mr Singh has “genuine experience”.

2. The Tribunal accepted that Mr Singh may have performed a small amount of work at the Baking Firm to familiarise himself with the premises: CB 243 at [34]. The Tribunal’s concerns with respect to the provision of the Skills Assessment (based as it was on a false and misleading statement or information), led it to find that the Skills Assessment submitted to the Minister was therefore obtained because of a false or misleading statement. Mr Singh may have some genuine experience working at the Further Baking Firm, as the Tribunal was prepared to find, and other genuine experience working at the Further Baking Firm. In circumstances, however, where the Tribunal found that the Skills Assessment was a document obtained because of false or misleading statements or information, the fact that Mr Singh might have worked for some time at the Baking Firm and elsewhere, and accrued some genuine experience, does not assist him to meet the criteria in PIC 4020, and therefore to meet the requirements of cl.886.225 of Schedule 2 to the Migration Regulations. Ground 5 again seeks to have the Court impermissibly review the merits of the Tribunal Decision, contrary to Wu Shan Liang and the numerous cases which have applied the principles therein.

3. In all of the above circumstances, ground 5 is not made out and does not establish jurisdictional error in the Tribunal Decision.

Ground 6

1. There were not contradictory statements by the Department and the Tribunal. Both the Department and the Tribunal knew that Mr Singh had provided the Baking Firm Reference to the TRA for the purpose of the Skills Assessment. Relevantly, however, the Tribunal considered information, from the Mr Z documents, which indicated that the Baking Firm Reference which Mr Singh had been provided with was linked to Mr Z’s fraudulent activities: CB 243 at [30], and specifically the Cake Shop working references which were substantially in the same terms as the reference ultimately provided to Mr Singh by the Baking Firm. The existence of the Cake Shop working references in Mr Singh’s name, held by Mr Z, and the fact that the Baking Firm Reference was in substantially the same terms as the Cake Shop working references was information, properly, relied upon by the Tribunal, and sufficient to enable the Tribunal to draw an inference as to the falsity of information contained in the Baking Firm Reference.

2. Ground 6 is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.

Ground 7

1. The Tribunal had regard to Mr Singh’s evidence as to why he could not provide independent evidence of his work: CB 240 at [14]-[16]. It was for Mr Singh to put evidence before the Tribunal capable of satisfying it that the relevant criteria were met, and Mr Singh did not do so. As indicated above: see [54] above, there were steps that Mr Singh might have endeavoured to have taken to satisfy the Tribunal, but it is not evident that he even undertook those endeavours. Nothing in ground 7 establishes jurisdictional error in the Tribunal Decision.

Ground 8

1. What information it is alleged that Mr Singh was not given, or granted access to, is not particularised. Mr Singh was given partial access to the written material contained on the Department’s file: CB 203. Further documents were excluded from release as they were the subject of a certificate under s.375A of the Migration Act, which certified that their disclosure was contrary to the public interest. That exclusion was in relation to some 41 folios on the Departmental file. The Court notes that, otherwise, Mr Singh obtained access to the information which was sought by the Second Migration Agent on his behalf. The Court further notes that there was no subsequent, or further, request for access to information under s.362A of the Migration Act, nor was there any request lodged for access to documents under the Freedom of Information Act 1982 (Cth). Mr Singh was therefore not denied access to information, other than by reason of the lawful processes under s.375A of the Migration Act, and, in any event, did not, at the time, make any further requests for information by available lawful means.

2. In the circumstances, ground 8 is not made out, and does not establish jurisdictional error in the Tribunal Decision.

Conclusions and orders

1. Mr Singh has failed to establish that the Tribunal Decision is affected by jurisdictional error on any of the grounds raised by him in the Judicial Review Application, the Amended Judicial Review Application or Mr Singh’s October 2015 Affidavit. The Tribunal Decision is therefore not the subject of jurisdictional error as alleged, or at all. As there is no jurisdictional error in the Tribunal Decision, it is a privative clause decision within the meaning of s.474 of the Migration Act. It follows that there will be an order for dismissal of the Amended Judicial Review Application.

2. The Court will hear the parties as to orders as to costs.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate: 

Date:  30 May 2016