SINGH v Minister for Immigration

[2015] FCCA 2471

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2471

Catchwords:
MIGRATION – Skilled (Provisional) (Class VC) visa – where applicant in receipt of positive skills assessment from Trades Recognition Australia – where first respondent’s department gave information, including material received obtained by the use of a warrant issued pursuant to the Crimes Act1914 (Cth) – where Trades Recognition Australia withdrew positive assessment and substituted unsuccessful assessment – where no positive skills assessment before tribunal at time of visa decision – whether receipt of warrant material by Trades Recognition Australia was improper or illegal – whether receipt of that material invalidated revocation decision – no jurisdictional error.

Legislation:

Crimes Act 1914 (Cth), ss.3E, 3ZQU(1), 3ZQU(4)

Migration Act 1958 (Cth), s.352(4)

Migration Regulations 1994, cl.487.223 of Schedule 2

ASIC v Rich (2005) 188 FLR 416

Applicant: SHAMSHER SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 1403 of 2012

Judgment of: Judge Jarrett

Hearing date: 22 July 2014

Date of Last Submission: 22 July 2014

Delivered at: Brisbane

Delivered on: 11 September 2015

REPRESENTATION

Counsel for the Applicant: Mr Cadman

Solicitors for the Applicant: Belleli King & Associates

Counsel for the First Respondent: Mr Johnson SC

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 8 October, 2013 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1403 of 2012

SHAMSHER SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his amended application dated 12 November, 2013 the applicant seeks that a decision of the second respondent made on 5 October, 2012 be quashed.  That decision affirmed a decision of a delegate of the first respondent made on 25 January, 2011 not to grant the applicant a Skilled (Provisional) (Class VC) visa.  The applicant seeks an order that his application for review be remitted for determination according to law.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance.

3. In accordance with directions made to prepare the application for hearing, the applicant has filed an amended application and written submissions.  The first respondent has also filed written submissions.

Background

1. It is not contentious that during late 2009 and early 2010, the first respondent’s Department was conducting a criminal investigation into a suspected facilitator of fraudulent work references that were being used to support applications for visas of certain types. That facilitator was Carmine Amarante. The Department undertook searches of various premises under the authority of warrants issued pursuant to s.3E of the Crimes Act 1914 (Cth) and obtained information from those searches. The Department passed some of that information obtained during the execution of those warrants to a body called Trades Recognition Australia.

2. Trades Recognition Australia is a division of the federal Department of Education, Employment and Workplace Relations.  To understand its relevance to the present matter, it is necessary to understand one of the criteria that the applicant had to meet to secure the grant of his visa.

3. Clause 487.223 of Schedule 2 to the Migration Regulations 1994 sets out one of the criteria that the applicant had to satisfy to secure the grant of a Skilled (Provisional) (Class VC, Subclass 487) visa. Relevantly, cl.487.223 requires that the skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation.  It is a criterion that must be satisfied at the date of the decision on the visa application.  Trades Recognition Australia is a relevant assessing authority for the purposes of cl. 487.223.

4. On 29 September, 2009 TRA assessed the applicant as suitable for a nominated skills occupation of “Graphic Pre-Press tradesperson”.  In doing so, TRA relied upon a work reference from a person described as “Mr Crinis of Digital Productions Systems Pty Ltd” provided to it by the applicant.  TRA sent notification of the positive outcome of his skills assessment to the applicant by letter (in the post) dated 29 September, 2009.  TRA also sent him another letter to the same effect on 30 September, 2009 by email.

5. On 29 December, 2009 the applicant applied to the first respondent for a Skilled (Provisional) (Class VC, Subclass 487) visa. He replied upon the positive skills assessment that he had secured from TRA on 29 September, 2009 to satisfy cl.487.223 of the Regulations.

6. The skills assessment process relies, in part at least, upon the provision of work references by people or organisations for which a visa applicant may have worked. In the present case, the Department suspected that the applicant had provided to TRA a work reference organised by Amarante. By reason of its investigations and the material obtained by the Department using the Crimes Act search warrants, the Department did not think that the work reference was genuine. It provided information to TRA that cast doubt upon the authenticity of the work reference supplied by the applicant in support of his visa application from Mr Crinis.

7. The information provided by the department to TRA is set out at pages 1 – 141 of the Supplementary Court Book filed on 1 May, 2014.  Of those documents, only a few make reference to material seized pursuant to a warrant.  The significant documents are:

   a)      an email from Susan Taylor at the first respondent’s department to Susan McLean at TRA dated 22 January, 2010 in which the following appears:

   Evidence seized from the Search Warrant, (taken off Amarante’s thumb drive) corresponds with work references submitted to TRA by students as identified below.  There is overwhelming evidence that supports that the work references are fraudulent and that these students did not complete the 900 hours work experience as stated.

   …

   4.  Work References from Digital Production Systems/Digital Production Services Pty Ltd

   On 25/11/2009 attended 21 Moray Street, Southbank, the premises of Konica Minolta Business Solutions Australia Pty Ltd.  Spoke to Nick CRINIS in relation to work references that had has name on the work references.

   During the discussion with CRINIS he stated the following:  he was currently employed as the Melbourne Manager for Konica Minolta and he had held that position since August 2009.  Previously he was a “master agent” for Konica Minolta.  He owns the company Digital Productions Systems Pty Ltd., the business operates out of the same premises of Konica Minolta at 21 Moray Street, Southbank;  CRINIS stated that Konica Minolta was aware that he ran his personal business from their office and that his business contracted out to Konica Minolta.  He met AMARANTE in the pub down the road at lunch time.  He accepted AMARANTE’S offer of free labour from students.

   He understood that the students needed to complete a certain amount of work experience hours and as he needed help he accepted AMARANTE’S offer.  He did not receive any money from AMARANTE nor was he offered any money from anybody else.

   CRINIS  agreed to attend DIAC officer at Casselden Place, Melbourne on 14/12/2009 at 13:00hrs for a record of interview relating to the work references that he signed.  CRINIS was sent a follow up letter (sent by registered post) confirming this interview.  On 10/12/2009 CRINIS phoned to cancel the interview, stating that it was a busy time for him, he was reluctant to reschedule the interview.

   I have contacted Konica Minolta Business Solutions Australia’s head office in Sydney, spoke to company secretary Sherree Mac Lean, to confirm that they were aware that their office was used to run private business as stated by CRINIS and Mark Barker.  To date I have not received a response from Ms Mac Lean.

   (my emphasis)

   b)      a memorandum from Laura Davis to Jan Febey  (both of whom were within the Department of Education, Employment and Workplace Relations) dated 16 March, 2010 in which the following appears:

   Issues

   5. In September 2009, DIAC Melbourne Investigations carried out a search warrant at the residence of known facilitator, Mr Carmine Amarante.  Evidence seized during the execution of the warrant included fraudulent work experience statements from a number of employers, including Digital Production Systems/Services (Attachment B refers).

   6.  On 11 November 2009, DIAC conducted a record of interview with Mr Amarante, who made full admissions to producing hundreds of fraudulent work experience statements used in support of visa and skills assessment applications (Attachment C refers).

   7.  On 22 January 2010, TRA received further information from DIAC outlining evidence seized during the execution of the search warrant (Attachment D refers).  This included twelve (12) fraudulent work experience statements from Digital Production Systems/Services.

   8.  TRA undertook a search of its database and found that fifteen (15) work experience statements had been submitted to TRA for pre-migration skills assessment.  Five (5) of these had not been assessed, and therefore were given unsuccessful outcomes based on the information provided by DIAC.  Two (2) were already unsuccessful, and two (2) were closed prior to assessment; leaving six (6) applications with successful assessment outcomes (see Attachment A).

   9.  On 27 January 2010, TRA received additional information from DIAC informing that during the interview, Mr Armarente claimed that he paid $300 for as many as twenty (20) work references to Nick Crinis, the owner of Digital Production Systems.  He stated that he did not think that the students completed work experience and training at the business.  Furthermore, that he paid $300 for a single work reference to Mark Baker, the owner of Digital Production Services (Attachment E refers).

   10.  All work experience statements from Digital Production Systems/Services cited their work premises as 21 Moray Street SouthBank Victoria.  This address is the location of Konica Minolta.

   11.  On February 2010, the QA Manager contacted Konica Minolta and spoke with Alan Buttriss the Operations Manager.  In this conversation Mr Buttriss confirmed that Konica Minolta is located at 21 Moray Street Southbank, and is a sales demonstration facility not a premises for people working or learning Graphic Pre-press functions (Attachment F refers).

   12.  In view of this information, the claims made by the six (6) applicants who have received successful outcomes based on work experience undertaken with Digital Production Systems/Services no longer meet the requirements of Pathway E of the UAC.

   (my emphasis)

   c)      an email from Scott Reid at the first respondent’s department to Susan McLean at TRA which forwarded “referrals to our Brisbane office including a brief summary of comments from Amarante with respect to each business”.  The following appears in the forwarded material:

   Digital Production Systems/Services

   Armante claimed at interview that he paid $300 for as many as 20 work references to Nick Crinis, the owner of Digital Production Systems.  He stated their relationship started possibly the beginning of 2009 and that he did not think that the students completed work experience and training at the business.

   Armante claimed at interview that he paid $300 for a single work reference to Mark Baker, the owner of Digital Production Services.

   Armante claimed Mark was referred to him by Nick Crinis, both of whom worked at Konica Minolta, the premises of which were used as the claimed operating premises for both Digital Production Systems & Digital Production Services.

   During the search warrant, electronic copies of work references were located against the names of the following:

IDClient ID	First Names	Surname
85036118497	Shamsher	SINGH

1. It is apparent from the document at page 66 of the Supplementary Court Book that one search warrant was executed on the premises of Amarante on 29 September, 2009.  A copy of the warrant is not in the evidence before me.  It is apparent from the above listed documents (and particularly the first) that a work reference relating to the applicant was found on a thumb drive.  There is reference in the second document to the evidence seized as including twelve (12) fraudulent work experience statements from Digital Production Systems/Services.  However, there is no reference to any other things or documents that were seized pursuant to the warrant.  It is also apparent that none of the things or the documents seized pursuant to the warrant (whatever they might have been) were given to TRA.

2. The above documents (and some others given to TRA) also contain a report of things said to the investigators by Amarante.  Those things, according to the evidence before me were clear admissions that the relevant work references were fraudulent.

3. On 1 April, 2010 TRA wrote to the applicant.  The letter set out that the first respondent’s investigations had revealed that the applicant’s “work reference” may not be genuine.  The letter suggested that the positive skills assessment might be revoked on the basis that the reference was not genuine.  He was invited to respond. 

4. In April, 2010 TRA advised the applicant that on the basis of the Department’s investigation, the applicant’s work experience was found to be fraudulent and TRA proposed to substitute a new opinion in place of the positive skills assessment made on 29 September, 2009. 

5. At a point in time prior to 9 August, 2010 and before a decision had been made on the applicant’s visa application, TRA advised the first respondent’s Department that it had decided to revoke the positive skills assessment that it had issued to the applicant on 29 September, 2009.  On 9 August, 2010 an officer from the first respondent’s Department wrote to the applicant inviting him to comment on information received by the Department to the effect that TRA had revoked the positive skills assessment it had previously given to him on 29 September, 2009.

6. On 31 August, 2010 the applicant was advised that “the successful skills assessment outcome letter issued to you by us on 30 August 2010 has been withdrawn” and that “TRA has now substituted a new opinion that your employment in the occupation of Graphic Pre-Press TP cannot be verified and therefore your application is unsuccessful”.

7. On 5 September, 2010 the applicant’s agent responded to the first respondent’s letter of 9 August, 2010.  In that letter, the applicant denied that his work reference was fraudulent.  He provided a statutory declaration to the effect that his work experience was genuine.  He denied that he used a false and misleading document to obtain his TRA skills assessment and he denied that he used the services of an intermediary to obtain his skills assessment. 

8. On 25 January, 2011 a delegate of the first respondent refused to grant the applicant the visa for which he had applied on the basis that he did not hold a suitable skills assessment for his nominated occupation and therefore did not satisfy cl.487.223 of the Regulations.

9. On 9 February, 2011, the applicant applied for the delegate’s decision to be reviewed by a migration review tribunal.  On 25 September, 2012 the applicant (by his representative) gave to the tribunal an 11 page submission together with a number of attachments in support of the review application. 

10. The tribunal convened a hearing on 28 September, 2012 at which the applicant appeared.  He was assisted by an interpreter in the English and Punjabi languages.  He was represented by his registered migration agent, who also attended the hearing.

11. The applicant relied on the positive skills assessment made by TRA on 29 September, 2009 and gave evidence that he had undertaken the relevant work experience and that the work reference letter he had given to TRA was genuine.

12. However, on 5 October, 2012 the tribunal affirmed the first respondent’s delegate’s decision.

The tribunal’s decision

1. The tribunal recorded that:

   35.    The issue in the present case is whether the applicant meets the requirements of cl.487.223 which requires that the skills of the applicant have been assessed by the relevant assessing authority as suitable for the applicant’s nominated skilled occupation. 

   36.    On the evidence before the Tribunal, the applicant nominated the occupation of ‘Graphic Pre-Press Tradesperson’ (ASCO code: 4911-11) which is a skilled occupation specified in IMMI12/068.  For that occupation, the relevant assessing authority specified in IMMI12/0678 is TRA.

2. The applicant contended that he had a positive skills assessment from TRA and that TRA’s revocation of his positive skills assessment was not effective.  Two alternative arguments were advanced for that conclusion.

3. First, the applicant argued that the positive skills “assessments” dated 29 and 30 September, 2009 remained in place because what was intended to be revoked by TRA’s letter of 31 August, 2010 was a positive skills assessment dated 30 August, 2010.  The letter, as I have set out above at [13] referred to a positive skills assessment dated “30 August, 2010”.  Accordingly, the applicant argued that TRA had not intended to withdraw the positive skills assessment given on 29 August, 2009 and even if it did, the letter was not effective for that purpose.  As to that argument, the tribunal found that the revocation letter contained an administrative error.  Referring to the date 30 August, 2010 in that letter, the tribunal said in its reasons:

   38.    …However the Tribunal is of the view that this was an administrative error made by TRA and does not mean that TRA have assessed that the applicant’s skills are suitable for his nominated skilled occupation.  Particularly noting that in that letter TRA go on to state that they had substituted a new opinion that his employment in the occupation of graphic pre-press tradesperson could not be verified and therefore his application was unsuccessful.  They also indicate that they would advise DIAC of their decision.  Further, the TRA reference numbers are the same, which indicates that although the date was incorrect, the matter they were referring to was the initial skills assessment application made by the applicant.

4. Second, the applicant argued that because TRA had sent the positive skills assessment to the applicant twice, once on 29 September, 2009 and again on 30 September, 2009, there were in fact two positive skills assessments, not one.  TRA’s letter of 31 August, 2010, if it was effective to revoke any positive skills assessment, was only effective to revoke one of them and the other remained in place.

5. However, the tribunal determined that there was only one positive skills assessment.  The tribunal said:

   39.    It has also been submitted that there are two positive skills assessments dated 29 September 2009 and 30 September 2009 in the applicant’s case from TRA which have not been withdrawn.  However, as stated above, the Tribunal notes that these refer to the same initial skills assessment application made by the applicant and the differing dates reflect that one piece of correspondence was sent by post and the other by email.  The Tribunal also notes that the letter dated 30 September 2009 has “copy” written across it.  For these reasons the Tribunal is not satisfied that they represent two separate decisions on the applicant’s initial skills assessment application.

6. Having regard to those findings, the tribunal went on to find:

   44.    … that the applicant’s skills have not [been] assessed by the relevant assessing authority as suitable for his nominated skilled occupation of ‘Graphic Pre-Press Tradesperson’ and, consequently, he does not meet the requirements of subclause 487.223(1) and clause 487.223 at the time of decision. Accordingly, he does not meet the criteria for the grant of a subclass 487 (Skilled – Regional Sponsored) visa.

   45.    The Tribunal notes that the applicant also does not meet the criteria for other Class VC visa namely Subclass 485 because it contains an equivalent requirement that an applicant’s skills be assessed as suitable for the nominated occupation (see cl. 485.221).  As stated above, the applicant failed to provide an assessment that his skills were suitable for his nominated occupation.

The grounds of review

1. The application as originally filed contained 3 grounds of review.  A fourth was added by an amended application filed on 12 November, 2013.  It is only the fourth ground that is now pressed.  The others are abandoned.

2. By ground 4 the applicant contends that the decision of the tribunal was affected by jurisdictional error, in that the tribunal failed to comply with statutory conditions essential to the validity of the decision.  The ground of review pressed by the applicant is in the following terms:

   Ground 4:

   4. The Tribunal’s decision to refuse to grant the applicant’s visa was made without the Tribunal having complied with a statutory condition essential to the validity of the decision, and is therefore affected by jurisdictional error.

   PARTICULARS

   (a) On 9 August 2010, the then Department of Immigration and Citizenship (‘‘the Department”) sent a letter to the applicant inviting him to comment on an investigation conducted by the Department in relation to allegedly fraudulent work references on Digital Production System’s letterhead that were located in the possession of an intermediary known for providing fraudulent work references (‘‘the investigation”)(CB 46).

   (b) On 6 September 2010, the Department sent an invitation to comment to the applicant in relation to the investigation relied on by the Department in finding that the applicant’s work experience was fraudulent (CB 51).

   (c) The Department advised Trades Recognition Australia (“TRA”) that the applicant’s work experience was found to be fraudulent (CB 151).

   (d) The TRA relied on the documents and information in relation to the investigation in withdrawing the applicant’s successful skills assessment by letter dated 31 August 2010 (CB 151).

   (e) The delegate relied on documents and information in relation to the investigation in his decision dated 2 January 2011 to refuse to grant the applicant a skilled visa (CB 89, 94, 169).

   (f) The Tribunal had regard to the documents and information in relation to the investigation as it:

   a. had before it the Department’s file regarding the applicant; and

   b. relied on the TRA’s revocation of the applicant’s successful skills assessment (CB 256 [14] and 260 [37]).

   (g) Part of the information in relation to the investigation carried out by the Department included evidence given to the County Court of Victoria by Carmine Amarante in respect of criminal proceedings in respect of selling and manufacturing work references [TRA subpoenaed documents.

   (h) In withdrawing the applicant’s successful skills assessment by letter dated 31 August 2010. TRA had regard to information derived from:

   a. the proceeding in relation to Carmine Amarante’s co-operation with the police or other law enforcement agencies or his undertakings to give evidence in any future legal proceedings (“the criminal proceedings”); and

   b. a warrant issued by the Australian Federal Police (“AFP”) pursuant to section 3E of the Crimes Act 1914 (Cth) (“the Crimes Act”) (‘‘the search warrant material”) [TRA subpoenaed documents].

   (i) The TRA’s use of the information obtained pursuant to:

   a. the criminal proceedings constituted a breach of the order made by Judge Cannon of the County Court of Victoria made on 30 November 2012 under s 80(1)(c) of the County Court Act 1958 (Vic) (“the County Court orders”), alternatively, the impermissible use of the criminal proceedings material in a civil case; and

   b. the search warrant executed on 29 September 2009 by the AFP at the residence of Carmine Amarante constituted a breach of section 3ZQU of the Crimes Act.

   (j) The

   a. breach of the County Court orders; and/or

   b. impermissible use of the criminal proceedings material in a civil case; and/or

   c. breach of section 3ZQU of the Crimes Act,

   affected the validity of the TRA’s revocation.

   (k) Further and in the alternative, the Department’s use of the information obtained pursuant to:

   a. the criminal proceedings constituted a breach of the County Court orders; and/or

   b. the impermissible use of the criminal proceedings material in a civil case;

   c. the search warrant material constituted a breach of section 3ZQU of the Crimes Act.

   (l) In the circumstances. the Tribunal decision is invalid because of:

   a. tts (sic) reliance on the invalid TRA revocation:

   b. the derivative use of information:

   1. obtained by search warrant in breach of s3ZQU of the Crimes Act; alternatively

   2. being an impermissible use of material obtained in criminal proceedings for the purpose of civil proceedings and/or

   3. in breach of the County Court orders,

   contained on the Department’s file to which it had regard.

3. As ground 4 makes clear, there are two aspects to the applicant’s argument.  The first is the use of information obtained or derived from proceedings in relation to Amarante’s co-operation with the police or other law enforcement agencies or his undertakings to give evidence in any future legal proceedings. It is said that the use of that information is a breach of an order made by Judge Cannon of the County Court of Victoria on 30 November, 2012 under s.80(1)(c) of the County Court Act1958 (Vic). However, the order of Judge Cannon is not in evidence before me. This aspect of ground 4 was not the subject of any submissions before me, either written or oral, and was not otherwise developed. It was effectively abandoned. In my view, this aspect of ground 4 has no prospect of success because no factual foundation for the argument is established by the applicant, even assuming that principle otherwise supported the applicant’s argument.

4. The focus of the applicant’s argument was upon the second aspect of ground 4, namely his submission that s.3ZQU of the Crimes Act limits the use and sharing of information obtained under a search warrant issued pursuant to that Act.

5. Section 3ZQU of the Crimes Act provides:

   3ZQU  Purposes for which things and documents may be used and shared

   Use and sharing of thing or document by constable or Commonwealth officer

   (1)  A constable or Commonwealth officer may use, or make available to another constable or Commonwealth officer to use, a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for the purpose of any or all of the following if it is necessary to do so for that purpose:

   (a)  preventing, investigating or prosecuting an offence;

   (b) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002;

   (c)  proceedings under a corresponding law (within the meaning of either of the Acts mentioned in paragraph (b)) that relate to a State offence that has a federal aspect;

   (d)  proceedings for the forfeiture of the thing under a law of the Commonwealth;

   (e) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104 or 105 of the Criminal Code;

   (f)  investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part;

   (g)  investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979) under Part V of that Act;

   (h) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988;

   (i)  investigating or inquiring into a corruption issue under the Law Enforcement Integrity Commissioner Act 2006;

   (j)  proceedings in relation to a complaint, allegation or issue mentioned in paragraph (f), (g), (h) or (i);

   (k)  deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in any of the preceding paragraphs of this subsection;

   (l) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979.

   (2)  A constable or Commonwealth officer may use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any other use that is required or authorised by or under a law of a State or a Territory.

   (3)  A constable or Commonwealth officer may make available to another constable or Commonwealth officer to use a thing seized under this Part, or the original or a copy of a document produced under Division 4B, for any purpose for which the making available of the thing or document is required or authorised by a law of a State or Territory.

   (4)  To avoid doubt, this section does not limit any other law of the Commonwealth that:

   (a)  requires or authorises the use of a document or other thing; or

   (b)  requires or authorises the making available (however described) of a document or other thing.

   Sharing thing or document for use by State, Territory or foreign agency

   (5)  A constable or Commonwealth officer may make a thing seized under this Part, or the original or a copy of a document produced under Division 4B, available to:

   (a)  a State or Territory law enforcement agency; or

   (b)  an agency that has responsibility for:

   (i)  law enforcement in a foreign country; or

   (ii)  intelligence gathering for a foreign country; or

   (iii)  the security of a foreign country;

   to be used by that agency for a purpose mentioned in subsection (1), (2) or (3) and the purpose of any or all of the following (but not for any other purpose):

   (c)  preventing, investigating or prosecuting an offence against a law of a State or Territory;

   (d) proceedings under a corresponding law (within the meaning of the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002);

   (e)  proceedings for the forfeiture of the thing under a law of a State or Territory;

   (f)  deciding whether to institute proceedings or to take any other action mentioned in any of paragraphs (1)(a) to (l) (inclusive), subsection (2) or (3) or paragraph (c), (d) or (e) of this subsection.

   Ministerial arrangements for sharing

   (6)  This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for:

   (a)  the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (3) and (5), of things seized under this Part and originals and copies of documents produced under Division 4B; and

   (b)  the disposal by the agency of such things, originals and copies when they are no longer of use to that agency for those purposes.

   Note:          This subsection does not empower the Minister to make such an arrangement.

   Definition

   (7)  In this section:

   State or Territory law enforcement agency means:

   (a)  the police force or police service of a State or Territory; or

   (b) the New South Wales Crime Commission constituted by the New South Wales Crime Commission Act 1985 of New South Wales; or

   (c) the Independent Commission Against Corruption constituted by the Independent Commission Against Corruption Act 1988 of New South Wales; or

   (d) the Police Integrity Commission constituted by the Police Integrity Commission Act 1996 of New South Wales; or

   (e) the Office of Police Integrity continued by the Police Integrity Act 2008 of Victoria; or

   (f)  the Crime and Misconduct Commission of Queensland; or

   (g) the Corruption and Crime Commission established by the Corruption and Crime Commission Act 2003 of Western Australia.

6. I have set out s.3ZQU in full because its text is important. It is immediately apparent from the terms of s.3ZQU that its subsections apply to a thing or a document seized or produced in accordance with a search warrant.  It proscribes to whom those things or documents might be made available and by whom they might be used if they are made available.

7. The applicant submits that the purposes specified in s.3ZQU(1) are concerned with the investigation and prosecution of criminal offences, whether at the Commonwealth level, or by information sharing with a State or Territory. He submits that s.3ZQU(1) does not permit the sharing of information with a body such as TRA for the purpose of assessing a visa applicant's suitability for a nominated occupation.  Nor does it permit the sharing of such information with the first respondent or a migration review tribunal for the purpose of deciding a visa application.

8. The applicant submits that whilst s.3ZQU(4) states that s.3ZQU does not limit any other law of the Commonwealth that authorises or requires the use, or making available, of a document or thing, the provision of the information to TRA by the first respondent’s Department and the use of that information:

   a)by TRA for the assessment of the applicant’s suitability for his nominated occupation; and

   b)by the tribunal to decide whether to grant the applicant a visa

   were unlawful because the provision and use of the information was contrary to s.3ZQU(1).

9. The applicant argues that s.3ZQU(4) is “clearly directed to the interpretation of legislative provisions in other instruments empowering compulsory processes in criminal or like proceedings, to clarify any potential interaction with the Crimes Act.”  He submits that it does not empower a Commonwealth officer to share information obtained under a search warrant with any other Commonwealth officer or body performing a legislative function. To interpret the section in that way would be inconsistent with the need to interpret provisions related to invasive compulsory powers “in a strict and narrow fashion”.

10. The applicant further submits that the sections of the Migration Act that allow for documents to be received or requested by delegates of the first respondent or by the tribunal (such as ss.56, 352(4) and 359) are not sections that authorise the use of material obtained under warrants or by equivalent compulsive procedures, particularly material obtained by warrants issued pursuant to s.3E of the Crimes Act having regard to s.3ZQU(1) of that Act. I doubt that the argument is correct, but in any event, no document seized pursuant to the search warrant was given to TRA and so no occasion for a consideration of the argument arises.

11. The applicant also submits that there is a public policy basis for concluding that s.3QZU operates in the way in which he contends. The Crimes Act is concerned with invasive, compulsory procedures necessary for the investigation and prosecution of criminal offences. He argues that it is “inappropriate” that information obtained by the use of such powers against a third party be used either directly or in a derivative manner to affect the rights of a visa applicant who has no protections against how those powers are used, no right to test the information obtained and none of the other protections ordinarily available to either the subjects of search warrants or accused persons. 

12. Finally, the applicant submits that where an administrative decision-maker relies on information that is either unlawfully obtained or based wholly or in part on unlawfully obtained information, that decision-maker commits an error that goes to jurisdiction. Here, the applicant argues, when considering cll.487.227 (which deals with the provision of false and misleading information) and 485.223(1) of the Regulations the tribunal found the applicant’s skills had not been assessed as suitable by TRA on the basis of an unlawful purported substitution of a new opinion for the successful TRA determination. To so find, the applicant argues, was to misapply the relevant subclauses and to err in such a way that the tribunal failed to conduct the review required by s.348 of the Migration Act. Further, it failed to do so in a just manner and according to the substantial justice of the case as required by s.353 of the Migration Act. The applicant submits that: “These failures constitute breaches of essential preliminaries to the exercise of the statutory powers and authority conferred upon the MRT by the Act”.

13. However, for the following reasons, the applicant’s arguments must be rejected.

14. First, the applicant’s submissions do not recognise that s.3ZQU of the Crimes Act applies to documents (or copies of documents) or things.  It does not by its terms apply to the more generic label used by the applicant in submissions – information.  The applicant referred me to ASIC v Rich (2005) 188 FLR 416 to support another aspect of his argument in this case, but the case is instructive on this aspect. Even taking into account the fact that the Crimes Act has been substantially amended since Rich (by, for example, the insertion of s.3ZQU), the discussion undertaken by Austin J between pp. 456 and 457 (under the heading “5.3 Making seized things available to PwC”) makes it plain that the proscriptions in the Crimes Act against the dissemination of evidential material obtained by use of a search warrant issued under that Act apply to the subject matter of the warrant and things or  documents seized pursuant to it. There is no relevant prohibition against the use of information in the Crimes Act.

15. Here, the evidence and the concessions by the first respondent demonstrate that TRA had material given to it which caused it to issue the revocation decision.  But the evidence does not permit of a finding that any particular thing or document seized pursuant to the warrant in question was given or made available to TRA. Certainly TRA was informed of the execution of the warrant and that a work reference for the applicant from Mr Crinis was found, but that was already in the possession of TRA because it had formed part of the applicant’s skills assessment application. Nothing else is identified in the documents before me as having been seized pursuant to the warrant executed on 29 September, 2009 and thereafter given to TRA. TRA was informed of the admissions that Amarante had made, perhaps at the time the search warrant was executed, but certainly in a record of interview conducted on 11 November, 2009. The provision of that information is not contrary to s.3ZQU of the Crimes Act.

16. Second, there is no evidence that would permit of a finding about the use to which TRA (or its relevant officer or employee) put any relevant things or documents.  The memorandum of 16 March, 2010 sets out TRA’s proposed course of action having regard to the information given to it by the first respondent’s department.  Whilst the fact that a warrant was executed at Amarante’s residence and evidence seized during the execution of the warrant included fraudulent work experience statements, the documents were not given to TRA.  The officers of that organisation could not have relied upon them to take the action that they did.  At best they relied upon the department’s representations about the nature of the documents that were seized.

17. Material and information was given to TRA which was gathered by the department through means other than by way of the search warrant.  On the applicant’s own argument “information from the department’s investigation” was given to TRA.  The documents at pages 1 – 141 of the Supplementary Court Book show that the information so provided included the Department’s own conclusions drawn from a variety of other material.   The letter from TRA to the applicant of 9 August, 2010 is consistent with TRA taking into account those conclusions.

18. As the decision in Rich makes plain, it is necessary for the Court to make findings about a range of factual matters before any principle that might operate to exclude TRA’s second decision from consideration is engaged.  What things or documents were seized using the warrants?  To whom, when and for what purpose were any of those things or documents given?  What use was made of the things or documents so seized by the person to whom they were given?

19. Here, whilst there is evidence that TRA has relied upon information passed to it by the first respondent’s department compiled during its investigation into Amarante, there is no evidence that would permit of findings that TRA, or the tribunal for that matter, relied upon or had reference to any thing or document given to it by the first respondent’s department that was obtained by it through the use of the relevant search warrant. 

Conclusions

1. Even if there was a principle that operated so as to deny the tribunal access to TRA’s revocation decision because TRA was the recipient of a thing or document seized pursuant to a search warrant in breach of ss.3ZQU(1) or 3ZQU(4) of the Crimes Act, the evidence does not permit of the necessary factual findings to engage the principle.

2. The applicant’s argument conflates the things or documents that might have been seized pursuant to the relevant search warrants with the information and investigations carried out by the first respondent’s department into the activities of Amarante and the conclusions drawn from those investigations and information. 

3. There is no basis upon which to conclude that TRA’s decision was made on the basis of any thing or document seized pursuant to the search warrant.  The evidence suggests that the decision was made on the basis of the first respondent’s department’s investigations and conclusions.  The lack of any factual basis upon which to conclude that TRA received any thing or document seized pursuant to the search warrant or that it relied upon or made use of any such material in reaching the revocation decision means that the application cannot succeed. 

4. The application must be dismissed with costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Associate: 

Date:       11 September 2015